Flooding: Military Deployment
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Lord Astor of Hever
My Lords, I agree with my noble friend—the work of the Armed Forces is always excellent. The lessons learnt will provide a valuable opportunity to look at how the contribution of our Armed Forces to civil resilience can be enhanced and accelerated in future emergencies. We are working with the Treasury to consider whether there is potential for improvement to the funding processes. We routinely support civil authorities on a wide range of resilience activities, such as support in the event of industrial action by fuel tanker drivers and firefighters.
Lord Rosser (Lab)
My Lords, on 12 February the Prime Minister told Parliament that money would be no object in the response to the floods and that local authorities had only to request military assistance, yet the flooding started in late December in the West Country. Why did it take not far short of two months to make that statement on money being no object, and why was it so long before the military was called in? Why was no action taken by the Government in the first week of flooding to consider and determine the potential role that the military could play? Was it because the Government were not prepared to find the funding to enable cash-strapped local authorities to call in the military until weeks later, or was it because the Government just did not get round to doing it?
Lord Astor of Hever
My Lords, the department received its first request for assistance on 29 January and had deployed the requested support by the following morning. As the weather continued to deteriorate, defence became increasingly involved in providing support to local authorities.
Defence Reform Bill
Lord Rosser Excerpts(10 years, 1 month ago)
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Lord Rosser (Lab)
As the noble Baroness, Lady Miller of Chilthorne Domer, said, she also raised the issue of interception capabilities in Committee when she referred to concerns over the relevance of existing legislation in the light of rapid advancements in technology, the level of application of that technology by in particular American forces operating from UK soil and the extent to which UK law did or did not apply to them.
The amendment moved by the noble Baroness does of course refer to,
“officers of other states resident in the United Kingdom”,
and officers of other states acting within the jurisdiction.
I presume, therefore, that the amendment is nation-neutral and is intended to refer equally to other countries, although I am not sure that it is intended to cover any such activities being undertaken by, for example, embassy officials of such other countries.
As far as the United Kingdom is concerned, the Interception Commissioner, as I understand it, already monitors intercepted data, including of the Ministry of Defence, so I assume that is not the real issue since that individual reports annually to Parliament and to the Prime Minister. The Government have stated that if visiting forces want to undertake interception activities covered by the Regulation of Investigatory Powers Act a proper authorisation must be obtained, that such authorisations are overseen by the Interception of Communications Commissioner, and that covert surveillance powers are subject to separate oversight arrangements through the Chief Surveillance Commissioner.
In relation to foreign military personnel, the extent to which they are exempt from local jurisdiction is regulated through status of forces agreements negotiated between the sending and the host nation, which allow a sending state’s military forces to operate within, and at the consent of, the host state.
In 1951 NATO agreed a status of forces agreement covering hosting arrangements between the alliance’s member states, and thus from our perspective applies equally to visiting forces in the UK and to British forces based in NATO countries. The 1952 Visiting Forces Act incorporated the NATO status of forces agreement into UK law. The Act and the agreement provide for foreign laws and military discipline to apply to foreign military personnel in the UK, but such personnel are still subject to UK law, and this arrangement applies equally to our forces when they are overseas. The Armed Forces Act 1996 extended the Visiting Forces Act to third countries by Order in Council.
The Government have said that the US visiting forces are thus subject to both US and UK law. At present I believe that around 9,500 US military personnel and supporting civilian staff are permanently based at various locations throughout the United Kingdom. Most UK military bases involved are used by the United States Air Force, but RAF Menwith Hill is used by the US National Security Agency. The United States visiting force is responsible for internal security at the bases that have been made available to them. The parliamentary Intelligence and Security Committee has oversight of the intelligence activities undertaken by RAF Menwith Hill, and the Government have stated that the mission at RAF Menwith Hill is conducted in accordance with UK law and with the knowledge and consent of the UK Government. The United States visiting force also declares its inventory of weapons in the UK annually to the MoD, which ensures that all weapons are appropriately licensed and stored, and the storage of US munitions on bases in the UK is governed by a 1997 agreement between the UK and the US.
I listened to the concerns raised by the noble Baroness, Lady Miller of Chilthorne Domer, just as I listened to the Minister’s response in Committee, when he gave the Government’s assurance that oversight mechanisms were in place and covered any person subject to UK law performing such activities in the UK. Clearly the Government have a responsibility to make sure that appropriate arrangements are in place to ensure that we know what is going on in our own country in the field of military and security activity, including interception of communications and surveillance, and that what is happening conforms to UK law. That means that the Government have to satisfy themselves that both oversight mechanisms and the law continue to keep pace with increasingly sophisticated technological developments. I hope that in responding the Minister will be able to assure us that that is, and indeed will continue to be, the case, not only because a Government must know what is going on within their own borders in these vital areas, but to address some of the questions and concerns raised by the noble Baroness, Lady Miller, in moving her amendment today.
Lord Palmer of Childs Hill (LD)
My Lords, I thank the noble Baroness, Lady Miller, for raising and giving an airing to this subject. I can only hope that this will not be the end of the discussion of this important matter. The point was made as to whether this amendment was within the remit of the Bill. I like to think that this is going to be not one that we will necessarily vote on today, but one that we will come back to in greater detail bearing in mind the reply from my noble friend the Minister.
The noble Lord, Lord Rosser, went into great detail, and I certainly do not intend to repeat his comments, but I share many of his concerns about the assurances that he seeks. Do my noble friend the Minister and the Ministry of Defence believe that, with our reduced Army, Navy and Air Force, we are more vulnerable without such interception? No one likes the breaking of privacy and no one likes secrecy, but with our Army being reduced by 20,000, our Navy by 5,000 and our RAF by 5,000 personnel, and with the increase in the Reserve Forces, which we will deal with later in the Bill, rising very slowly to reach the 30,000 level, how important is that interception, and how important is it that it is reported and transparent, as my noble friend Lady Miller asked?
That is brought very much to the forefront of our minds with the problems in Ukraine. What help or hindrance does such interception cause in the present climate of hostilities? Overall, how should such transparency be effected on forces such as those of the United States operating on UK soil?
Defence: Nuclear Submarines
Lord Rosser Excerpts(10 years, 2 months ago)
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Lord Rosser (Lab)
My Lords, like the Minister, we would like to express our sincere condolences to the family and friends of the soldier from 32 Engineer Regiment who died yesterday while on duty with our Armed Forces.
I thank the Minister for repeating the Statement made earlier today in the other place by the Secretary of State. I wish to make a few points and ask one or two questions as well. The purpose of the prototype reactor at Dounreay is to identify at an early stage any age-related or use-related issues that may arise at a later stage in the lives of the operational reactor cores. To the extent that that is what appears to have happened means that the prototype reactor has served the purpose for which it has been running at a higher intensity and for much longer periods than those similar cores in our submarines. I note that the Statement says that the low levels of radioactivity detected are at the levels that would be expected, but that the issue is that they would not normally enter the cooling water which is within the sealed reactor circuit and there has been no detectable radiation leak from that sealed circuit.
The Statement also indicated that the independent Defence Nuclear Safety Regulator and the Scottish Environment Protection Agency were kept informed and that with the agreement of the relevant regulator following trials and investigations the reactor was restarted. I take it that means that both the regulator and the Scottish Environmental Protection Agency are satisfied that there are no safety issues at stake, but would be obliged if the Minister could confirm that that is the position. I note that the Statement says that we constantly monitor our submarine reactors and that we have never detected a similar occurrence to that now found in the prototype reactor.
The Statement indicates that the low level of radioactivity was detected in January 2012. It would appear that a decision was made not to advise Parliament of this at or near that time. Perhaps the Minister could say why the Government came to that conclusion, since it would have been perfectly easy to make such a Statement to Parliament then. Will the Minister say whether the Scottish Government were advised of the situation either directly or by the Scottish Environment Protection Agency? On the issue of timing, will the Minister also say why it has been decided to tell Parliament about the situation today rather than at any other particular time?
The Statement spelt out the implications for the availability of the Vanguard and Astute-class submarines, and thus the maintenance of our continuous at-sea deterrent, the decisions the Government have made to ensure the continuance of our deterrent and the additional costs that will be incurred. Will the Minister indicate whether there will be any implications beyond the submarines in question, and whether there will be any implications for the Astute construction programme?
The Statement indicates that the test reactor is scheduled to be decommissioned in 2015, but that the date may be brought forward. Will the Minister give an assurance that Parliament will be advised if that decision is made? If the test reactor is to be decommissioned shortly, then presumably the same facility will no longer be available to identify early any age or use-related issues that may arise in future operational reactor cores. How, then, will that safeguard be provided in future?
Finally, in the light of the Statement today about the prototype reactor giving advance warning of a possible issue with the operational reactors, do the Government intend to give further consideration to the effectiveness of whatever those intended safeguards may be for future operational reactor cores?
Scottish Independence: Faslane
Lord Rosser Excerpts(10 years, 2 months ago)
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Lord Astor of Hever
My Lords, I agree with every word that my noble friend says.
Lord Rosser (Lab)
My Lords, we want to see Scotland remain a key player in the United Kingdom, to the mutual benefit of each country within it. Defence is a vital component of the United Kingdom. Can the Minister say what the size is of the UK defence footprint in Scotland?
Lord Astor of Hever
My Lords, the Ministry of Defence spent over £20 billion with UK industry in 2011-12. It would be for the Scottish Government to explain clearly what their armed forces would look like. However, to date, they have failed to provide sufficient clarity. At some £34 billion, the UK’s annual defence budget is one of the largest in the world. As part of the UK, Scotland benefits from the full range of the UK’s defence capabilities that its budget provides.
Defence Reform Bill
Lord Rosser Excerpts(10 years, 3 months ago)
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Lord Rosser
“(5A) Regulations under this section may provide for variation in payment size on the basis of the recipient company, specifically including provision for larger payments to be provided to companies defined as “small” or “medium” under sections 382 and 465 of the Companies Act 2006 or individuals who are self-employed.”
Lord Rosser (Lab)
Clause 46 deals with the issue of additional payments to employers of members of the Reserve Forces. This amendment would enable regulations to provide for a variation in the size of the payment made by specifically including provision for larger payments to be provided to small and medium-sized companies.
An Answer to a Parliamentary Question in 2010 revealed that at that time 15% of current TA members came from large organisations employing 500 people or more, 17% came from medium-sized organisations employing between 50 and 499 people, and 17% came from small organisations with between one and 49 employees. Self-employed people made up 5%, with unemployed people, including students, making up 42%, and the mobilised TA making up the remaining 4%.
When the Minister responds, perhaps he could say whether the percentages that I have just quoted are basically the same today, some four years later, in respect of where current TA members come from. If that is the case, are the Government looking to change that breakdown by employment of sources of Reserve Forces recruitment, bearing in mind that one of the key roles of the reserves in future will be to provide key specialist skills needed to support our Regular Forces to a greater extent than today?
I should like to raise a question about reservists who are unemployed—in particular, to ask the Minister how Jobcentre Plus views unemployed potential reservists going off for extended periods, in light of the requirement that they should sign on and apply for jobs on a regular basis. Presumably we should be encouraging the unemployed to consider reservist occupations; so the question of how that fits in with the requirement to sign on for benefits is of some importance.
The figures given in the Parliamentary Answer to which I referred indicate the importance of small and medium-sized firms as a source of reservists. The additional payment proposed over and above the current arrangements is, I believe, £500 a month for each month in which a reservist is mobilised. The question is: will that prove to be a sufficient incentive for smaller firms, bearing in mind that the impact on them of one or more of their employees being reservists, and away from the workplace for periods of time, could be greater than for a large firm that has more resources, both human and financial, at its disposal to cover for employees away on Reserve Forces commitments?
I appreciate that we want to draw the attention of employers to the benefits to them of their employees being reservists and the positive impact that this can have on career development, but that may not necessarily be the first point that will strike a small employer when faced with the potential problem of covering for an employee away on reserve duties; there are many small employers in the IT field, which is a skill that we look to reservists to provide. A survey by the Federation of Small Businesses in 2012 suggested that this might be an issue, but I hope the Minister will say whether that is proving to be the case in respect of small and medium-sized firms.
We believe that there is a case for flexibility over the size of the additional payment in relation to small and medium-sized businesses, but we want to hear what the Government’s intentions are on the points I have raised, including how specific or otherwise the regulations relating to these payments are likely to be. I beg to move.
Lord Palmer of Childs Hill (LD)
My Lords, I am not happy with this amendment. Having listened to the explanation by the noble Lord, Lord Rosser, I shall explain why. Small and medium-sized enterprises—I was the director of one for many years—are concerned not so much with the money but with replacing the person. The noble Lord, Lord Rosser, touched upon that. I do not think that money is the problem. Giving SMEs a bit more money does not solve the problem that a key person in a very small organisation is not there. The argument for larger payments to smaller companies will only annoy larger companies which are the source of reservists—or territorials, at the moment.
The amendment in the name of the noble Lords, Lord Rosser and Lord Tunnicliffe, also mentions the self-employed. The idea of the self-employed going into the reserves under the new arrangements is that they will receive £500 a month, or whatever it is, to substitute for their self-employed earnings. That is a decision that they would need to make, and I hope they will make it positively; but the self-employed person is not so much worried about the £500 per month substitute for earnings from their customers or their clients as about keeping their customers and their clients while they are away, and money does not solve that.
I was interested in the comment made by the noble Lord, Lord Rosser, about the unemployed. It was a point that I had not thought about, and I, too, would welcome the Minister’s reply on that point.
Lord Rosser
Before I withdraw my amendment, can I clarify what I think has been said? We are talking about the additional payments to the employer, over and above what has already been paid—and I thank the Minister for setting out what the current arrangements are. On the additional payment, which is one of £500 a month for each month that a reservist is mobilised, can I confirm that the intention is that that will be paid only to small and medium-sized businesses? I think that he then said that there would be flexibility over the level of the payment. Does that flexibility mean that it could exceed that £500?
Lord Astor of Hever
The answer to the noble Lord’s first question is definitely yes—it is just for the SMEs. I shall need to get back to the noble Lord on the second question.
Lord Rosser
I thank the Minister for his reply and the noble Lord, Lord Palmer of Childs Hill, for his contribution. I am grateful to the Minister for setting out on the record what the current situation is and what the Government’s intentions are as regards this additional payment. In the light of the reply, I beg leave to withdraw the amendment.
Lord Astor of Hever
My Lords, I will try to answer the noble Lord’s question when I respond to other noble Lords’ questions. I repeat that the next SDSR, which will take place at a time when the programme has had some time to develop and demonstrate maturity, would be the right time to scrutinise the force structure and whether it needs to adapt to reflect new threats, opportunities or other such variables. I beg to move.
Lord Rosser
One of the joys of having amendments in a group where the Government have the first amendment is that you get the Government’s response before being able to explain the reasons for your own amendments. However, I would not wish the Minister to take that in any way as a criticism because we are always extremely grateful for the thoroughness with which he replies to amendments and for the extent of the information he provides to us. I will be as interested as my noble friend Lord Robertson of Port Ellen in the answer to the question he raised about the amount of discussion that is or is not currently going on in relation to the SDSR due in 2015.
Government Amendment 18 and my Amendments 18C and 18F have one thing in common; namely, they all provide for reports of one form or another. The Minister has explained the thinking behind the Government’s amendment, which, as he said, has arisen from a commitment given when the Bill was being considered in the other place. We have no issues with the Government’s Amendment 18. Our Amendment 18C calls on the Secretary of State to publish annually an analysis of the mental health provision for members and former members of the Reserve Forces and to report on the annual spend on such services. On that latter point, I note that the Minister said, in effect—I appreciate these were not his exact words—that this information could not be provided.
The amendment also makes provision for the transfer of medical records belonging to former members of the Reserve Forces to the National Health Service and for the monitoring of the health needs of former members of the Reserve Forces. Without such an arrangement working effectively, there is a distinct possibility of reservists going to their GP and their full medical history not being available. I appreciate what the Minister has already said in that context, but the reason for putting down the amendment with this requirement is because of claims that this is not what happens on occasions.
Mental health provision is, if anything, even more of an issue for reservists than for members of our Regular Forces as reservists after deployment go back into the civilian world rather than back to their units and can undoubtedly feel isolated on occasion. Hence the importance of the Ministry of Defence and the National Health Service knowing where reservists can be contacted and ensuring that they get the support they need.
A study published in 2012 showed a significantly higher rate of common mental health disorders and post-traumatic stress disorder among reservists, with the incidence of other types of mental illness being greater than that of PTSD, as it also is for regulars. The study also drew attention to the fact that reservists have much more difficulty with post-deployment social functioning and that such difficulties appear important not only to mental health but to fitting back into the family.
In future, we will be expecting a greater and different kind of commitment from our reserves and we need to ensure more than ever that the advances we have made with the Regular Forces with regard to mental illness, to which the Minister has already referred, are also achieved for our Reserve Forces. Government Amendment 18 provides for the annual report from reserve associations to include that association’s assessment of the provision that is made regarding the mental welfare of members and former members of the volunteer Reserve Forces but, apart from the issue of the extent to which reserve associations would be qualified to make such a full assessment, the Government’s amendment does not lay any requirement on the Secretary of State to make such an assessment or to address the issue of the transfer of medical records.
We believe it is important that there is such a requirement on the Secretary of State as well, particularly in relation to making the assessment. Making the provision set out in Amendment 18C and putting it in the Bill would help to ensure that mental health provision for members and former members of the Reserve Forces was regarded with the importance that it deserves.
Lord Rosser
“Reserve forces: publication of recruitment figures
The Secretary of State shall publish quarterly recruitment figures and trained strength numbers for reserve forces against adjusted quarterly targets.”
Lord Rosser
I almost feel as if I am once again moving an amendment after the debate on it has already taken place. Amendment 18A provides for the Secretary of State to publish quarterly recruitment figures and trained strength numbers for Reserve Forces against adjusted quarterly targets. I certainly do not wish to speak at any great length on this amendment but, as has already been said, there has been a significant change in approach by the Government to the role of the reserves since the increase in reserve strength was first announced alongside further reductions in the size of our Regular Forces. At that time, the previous Secretary of State made it clear that the reduction in the size of the Regular Forces would take place only as and when the reserves had been increased.
That is not now the Government’s stance, which has changed to saying that the reduction in the size of the Regular Forces and the Army, in particular, is not dependent on first delivering the increase in the size of our Reserve Forces. However, the increase in the size of our Reserve Forces must be for a purpose and, presumably, if we do not achieve the target that has been set within the period set, the capability of our Armed Forces as a whole will be less than it would otherwise have been. If that is not the case, it begs the question of why we are increasing the strength of our reserves.
If we can accept that our Reserve Forces will have an even more important role to play in the future, the question of whether recruitment targets will be achieved is a matter of some importance. Last autumn, there were reports in the press of the Army failing to attract and recruit sufficient Army Reserve personnel, and as a result it was claimed that the Army faced an increased risk to its structure and operational capability. If we are falling behind in recruitment, it may take time to recover lost ground since it is not simply a case of recruiting people. The people recruited have to be trained before they can become fully effective members of the reserves, and that takes time.
We are talking about ensuring the overall effectiveness of our Armed Forces and thus about our nation’s security. Our reserves are not simply something that is nice to have if people can be recruited; they will have an important and enhanced role to play in the future as part of our overall Armed Forces strength. In view of that, it does not seem unreasonable to provide in this Bill for not only the current Secretary of State but future Secretaries of State to publish the figure that will enable us all to know whether the targets for increasing the size of the our reserves are being achieved and thus that the future intended capability of our Armed Forces is being delivered in full. The fact that this information will have to be published may also help concentrate the minds of all those directly concerned in ensuring that targets set prove to be targets achieved. I beg to move.
Lord Astor of Hever
My Lords, reserves have always made an essential contribution to national security and that contribution is set to increase, with exciting opportunities being offered not just for individuals but for formed units. Reserves will be an integrated part of the whole force required for almost all operations, both at home and abroad. To do this, we are growing our reserves to 34,900 across all three services by 2018 and investing an additional £1.8 billion over 10 years. The Army will grow its reserves to a trained strength of 30,000, the Royal Air Force to 1,800 and the Royal Navy to 3,100. This is a challenging target but one that we are committed to achieving.
These requirements are challenging, but the planned overall numbers of trained reservists are well within historic levels. In 1997, the Territorial Army was more than 50,000 strong; it was reduced to around 40,000 by 2000 and, by 2009, it was down to just 26,000. We now have about 19,090 trained reserves. We should not be surprised if growth is neither uniform nor smooth. Given the time that it takes to train reservists, trained strength improvement will lag behind recruitment. Reservists will be an integral and integrated part of the whole force alongside their regular counterparts. The Committee will no doubt be aware that, recognising the interest in the progress of reserves recruitment, the MoD publishes the trained and untrained strength data for the reserves quarterly. The last figures were released on 14 November and the next set of data is due to be released in the next few days. I am sure that noble Lords would agree that, with such a commitment, there is no need to enact legislation.
The Army is undertaking a significant number of surge activities alongside recruit partnering projects to boost reserve recruiting and grow the reserve force. The initial response to the new recruiting campaign is encouraging and a number of new initiatives have been introduced. These include the revised medical process, introduced in January, and the new online application forms introduced this month. Both these new major initiatives will simplify the process and are aimed at improving the candidates’ journey into and through the application process. I must point out that the programme is still in its early stages. The White Paper was published only in July, and it is true there have been some administrative issues in the process. However, we are working with Capita and the senior Army leadership actively to address these issues. I believe that we can work them through. Adjustments have been made to the application process to ensure that we can continue to progress new recruits. Marketing campaigns based on the new White Paper proposition have just got under way; the latest marketing campaign for the reserves started in early January.
Maritime Reserves has stabilised its numbers and is working to ensure the retention of trained personnel already in the reserve and reduce wastage during the training programme by tailoring the training methods to better suit the reservist experience. Although there is a slight reduction in the Royal Auxiliary Air Force’s trained strength, the number in training is the highest since April 2012. The force looks likely to meet its end-of-year target and is seeking authority to allocate extra resources to marketing in order to improve further its recruitment rate. Recruiting activity itself is better co-ordinated across the three services than in the past; this should ensure a much more joined-up approach to recruiting. The new recruiting campaigns are delivered at a regional level, following planning and guidance from a national level. We are working hard to deliver the message through internal communications within other government departments that the reserves are recruiting and to demonstrate that the Civil Service is taking the lead in the public sector.
The additional costs of recruitment associated with growth of the reserves are all factored into the Future Reserves 2020 programme. Should recruitment be slower than planned, some funding earmarked for paying personnel who were not in fact recruited could be switched to increase the recruiting effort.
Lord Rosser
Once again, I thank the Minister for that comprehensive reply and for the information that he has provided on the progress being made with Reserve Forces recruitment. I certainly would like to have a copy of the information to which he referred during his reply.
The only comment I would make is that, while it is good to hear that the figures are being published and that it is the intention to keep providing that information, putting it in the Bill would ensure that that continued to be the case in the future. Sometimes attitudes change, and it is possible that we will find that the information is no longer being provided.
However, I will leave it at that. I thank the Minister once again for his reply and I beg leave to withdraw the amendment.
Lord Rosser
“Treatment of reservists
(1) Section 39 of the Equality Act 2010 (employees and applicants) shall apply to serving and former members of the Reserve Forces as if membership of such forces were a protected characteristic under section 4 (the protected characteristics) of that Act.
(2) Members of the Reserve Forces are required to disclose their membership to potential employers upon application for employment.
(3) The Secretary of State shall within one year of this Act coming into force establish an employer engagement committee to act as an advisory body on the recruitment and retention of members of the reserve forces.
(4) The Secretary of State shall lay before Parliament an annual Report of the Employer Engagement Committee detailing its activities and recommendations for the Government.”
Lord Rosser
Amendment 18B seeks to amend the Equality Act 2010 to prevent discrimination against reservists in employment and in seeking employment by adding membership of the Reserve Forces to the list of protected characteristics under the Act. The potential concerns are fairly obvious and, if they materialised, would constitute a serious impediment to people joining the reserves or remaining in them.
A clause in the Bill refers to the qualifying period of employment for unfair dismissal related to an employee’s membership of a reserve force, so there is obviously recognition that being unfairly penalised or discriminated against for this reason is a real possibility. That discrimination could also take place when being considered for a job, since some prospective employers might take the view that they did not wish to recruit someone purely or largely because they would be away from their job for periods of time to fulfil their commitments as a member of the reserves. Discrimination could also take place against someone in the reserves already working for the company in question, since membership of the reserves and being away from the job for a period as a result might be the sole or major factor in denying them promotion to a higher-level post. The purpose of this amendment is to reduce the likelihood of this happening but it will also give the Government, through the Minister, the opportunity to place on the record how they intend to address the potential problems that I have identified if they feel unable to accept the amendment.
Amendment 18D seeks to support recruitment to and retention in our reserves by ensuring that a reservist is entitled to be permitted by his or her employer to take time off during their working hours in order to undertake training activities connected to the reserve force, subject to the provisions laid down in the amendment, and if that does not happen to be able to present a complaint to an employment tribunal. It will be no help in encouraging recruitment or assisting retention if there are doubts about whether leave for training activities during working hours will be given by the reservist’s employer or, indeed, if it is to be given only grudgingly. Once again, if the Government feel unable to accept this amendment, I hope that the Minister will be able to indicate how they see the concerns I have raised being addressed and satisfactorily resolved from the point of view of the actual or potential member of our future Reserve Forces. I beg to move.
Lord Astor of Hever
The noble Lord makes a very good point about the National Guard, and I apologise if I did not refer to it in my response. This is quite a detailed subject. I will write to the noble Lord and copy my letter to the other noble Lords who have taken part in this debate.
Lord Rosser
I thank the Minister for his comprehensive reply and I thank the noble Baroness, Lady Garden, for her comments. I also thank the Minister for setting out the statutory safeguards, as well as the non-statutory measures that have been, and are being, taken to address the issues that I have raised. If the Government find that working with employers and not going down the statutory route does not work, I hope that they will reflect again on providing legislation to protect the position of employees who are members of the reserves, who could find themselves in a vulnerable position.
Having said that, I appreciate that this is a difficult area. It can be very difficult to prove discrimination against somebody on the basis of membership of the Reserve Forces, particularly if one had to seek to prove that there had been discrimination through, for example, denying someone a promotion or giving them a lower salary increase or some other act of that kind. I also accept that proving discrimination on these grounds could be difficult.
I conclude by thanking the Minister for his comprehensive reply, and I beg leave to withdraw the amendment.
Lord Rosser
“Amendment of Criminal Justice Act 2003: service persons
In section 146 of the Criminal Justice Act 2003 (increase in sentences for aggravation related to disability or sexual orientation, sexual orientation or transgender identity)—(a) in the title of the section, add at the end “or status as a service person”;(b) after subsection (2)(a)(iii) insert “or (iv) the victim being, or being presumed to be, a service person.”;(c) after subsection (2)(b)(iii) insert “or(iv) by hostility towards service people.”; and(d) after subsection (6) insert—“(7) In this section “service person” means member of the reserve forces and any relative of a member of the reserve forces”.”.
Lord Rosser
Amendment 18E seeks to amend the Criminal Justice Act 2003 so that physical or verbal assault upon a member of the Reserve Forces or a member of their family would be classed as an aggravating feature of the crime and should be reflected in the sentence handed down where the prosecution could establish that service in the Reserve Forces was the motive for the assault. We know from surveys of Armed Forces personnel that physical and verbal assaults on them motivated simply by the fact that they are service personnel run at a surprisingly high rate. On a much more severe scale, we have had a recent example of a member of our Armed Forces being murdered on our streets simply because he was a member of our Armed Forces.
Attacks on service personnel, whether physical or verbal, are totally unacceptable, do nothing to assist recruitment and retention, and run contrary to the esteem in which members of our Armed Forces are held by the overwhelming majority of the population, who recognise that they are willing to put their lives on the line in defence of our country’s people and interests. We need to do as much as we can to reduce the incidence of assaults, particularly at a time when we are seeking to recruit substantial additional numbers into our reserves. I say once again that if the Government do not believe that this amendment is the best way to achieve that objective, I hope that the Minister will indicate in his reply whether they regard the issue that I have raised as a real problem and, if so, what courses of action they are taking or intend to take to address it. I beg to move.
Lord Palmer of Childs Hill
My Lords, I hope that the Minister will include in his reply what instances there have been of confusion about what a “service person” should be. I would have thought that under existing legislation “service person” would include all the things that are included in proposed new subsection (7) in the amendment. Has there been any experience that “service person” has not been taken to include the people mentioned here? It seems a rather worthy thing to protect people even more and make sure that they are included in the criminal justice legislation, but I wonder whether there is reason to believe that any of this has been necessary in the past.
Lord Astor of Hever
My Lords, I am sure that I speak for all of us in saying that we hold the same view about discrimination against members of the Armed Forces. It is a completely unacceptable form of behaviour towards the men and women who have committed themselves to defending this country, its people and its way of life, and to making sacrifices that others perhaps sometimes take for granted. Those who discriminate against service personnel, or against the wider Armed Forces community, succeed only in diminishing themselves.
Discrimination can take many forms. Some of it is thoughtless or uninformed—for example, when public services fail to take account of the special circumstances in which Armed Forces personnel find themselves. Some of it is based on myth and prejudice—a view that soldiers create trouble or are unreliable customers is a misperception that we must challenge. However, some discrimination or abuse stems from genuine hostility to members of the Armed Forces, motivated by politics or perhaps by some unfortunate personal experience. It is on that narrow part of the spectrum that this amendment focuses.
The amendment would have the effect of amending Section 146 of the Criminal Justice Act 2003, which lays down circumstances in which the seriousness of a criminal offence, and thus the severity of the resulting sentence, is increased. It provides for increased sentences where an offender demonstrated hostility based on the victim’s sexual orientation, disability or transgender status, or where the offence was motivated by hostility towards persons of a particular sexual orientation, persons who have a disability or persons who are transgender. Section 145 of that Act makes similar provision in respect of “racially or religiously aggravated” offences.
The amendment would provide for increased sentences where an offender demonstrated hostility based on the victim being a,
“member of the reserve forces”,
or indeed,
“any relative of a member of the reserve forces”.
It would also provide for increased sentences where an offence was motivated by hostility towards members of the Reserve Forces.
It is important that we are clear about what the amendment would not do. It would not cover situations such as a refusal to admit members of the Armed Forces to a hotel or bar. Such situations have led to widespread public indignation but they generally do not involve a criminal offence.
The Government’s view is that there is no need for a change in the law on these lines. The courts already have a wide power in sentencing to take into account factors that make conduct more serious. Criminal acts based on irrational hostility to a person because he or she is in the Reserve Forces may lead to a higher sentence in any event. I am not aware of any evidence of courts finding that they have insufficient powers to give an appropriate sentence to an offender in such circumstances, or that we have received representations from the courts asking us to amend the law in this way.
In contrast, converting the flexibility that the courts currently have into a mandatory requirement, as the amendment proposes, may present practical difficulties. For example, demonstrating to a court that the aggravating factor was present and should be taken into consideration could be relatively straightforward in some cases, such as where a victim was in uniform, but far from straightforward in other cases, such as those in which the victim was a relative of a member of the Reserve Forces. How are the courts to deal with a situation where an offence is motivated by excessive rivalry between different sections of the Armed Forces or, perhaps, a domestic dispute? A mandatory requirement for a higher sentence reduces the court’s ability to take a sensible, common-sense approach to what is really going on in the circumstances it is examining.
There is a fundamental difference between offences provoked by hostility to the work of the victim and offences motivated by prejudice against inherent characteristics, such as homophobic crime. Section 146 of the 2003 Act is designed to help to change deep-rooted prejudices. It would be quite wrong to suggest that such provisions were necessary in relation to the Armed Forces. However, the most telling argument against this amendment is the views of the intended beneficiaries. I am not aware of any general desire in the Armed Forces community for legislation of this type. The service men and women who wear their uniforms with pride want to be respected in and considered part of their communities, and rightly so. We should not put them in a position where they are forced to explain why they require protection in law in a way not enjoyed by, for example, firemen or ambulance staff. Indeed, the amendment deals only with members of the Reserve Forces, as the noble Lord pointed out. It would not extend to members of the Regular Forces, meaning that rather than helping create the whole force which we seek the amendment would separate out members of the Reserve Forces for different treatment in law. I am not sure whether they would wish to see that in this context.
None of this means that the Government are complacent about discrimination against service personnel: quite the opposite. The Armed Forces covenant has a high profile across the whole of Whitehall and beyond. The first principle, that members of the Armed Forces community should not suffer disadvantage as a result of that membership, has given rise to many initiatives which are making a real, practical difference. In the first statutory annual report on the Armed Forces covenant, published in December 2012, we described what we were doing to make these principles a reality. We are working to remove the disadvantage that the children of service personnel can face in the schools system as a result of their mobility through the admissions code and the service pupil premium. We are ensuring that service personnel and leavers encounter a level playing field in access to social housing or Government-funded home ownership schemes.
At the same time, we are working to build the links between the Armed Forces community and the wider community to improve the knowledge and understanding that must be at the centre of that relationship. From knowledge flows the esteem for our service men and women that is ultimately the most powerful way to counter discrimination. The community covenant has now been signed in nearly 400 local authority areas, from Cornwall to the north of Scotland, and around 60 companies have signed up to the new corporate covenant, signifying a real determination to strengthen ties with the Armed Forces. I am confident that it will continue to gain further support. The grant scheme linked to the community covenant has allowed us to back a range of schemes that will help to put these declarations into practice. To that, we can now add the £35 million fund created as a result of the LIBOR fines, which will support charities with projects to help the Armed Forces and their families.
This is not an entirely new proposal. Thomas Docherty MP previously raised this issue in a Private Member’s Bill and has another for consideration this year, with its Second Reading having been scheduled for 24 January. The debate was adjourned and is expected to resume on 28 February. The previous Government, in response to a similar recommendation in the 2008 report from the then Member for Grantham and Stamford, now the noble Lord, Lord Davies of Stamford, said,
“we do not think that a change in the law is necessary or appropriate.”
As a result of the Armed Forces Act 2011, we have a new vehicle at our disposal in the form of an annual report to Parliament—effectively a report on the state of the Armed Forces covenant. In February of last year, my right honourable friend, the member for Rayleigh and Wickford, the Minister of State for the Armed Forces, indicated that the question of discrimination would be a legitimate issue for the next report at the end of 2013. The report, published on 16 December 2013, said:
“Our view is that, in the last year or so, the extent of public knowledge and sympathy for the Armed Forces has continued to grow—aided by the Community Covenant and the new Corporate Covenant. We therefore continue to believe that education, rather than legislation, is the key to eradicating the kind of behaviour that we all abhor”.
In answer to the question from my noble friend Lord Palmer about what instances there have been of service personnel not taken to include those in the amendment, we recognise a service person as a regular or reserve member of the Armed Forces. Proposed subsection (7) in the amendment seems to be drafted to enable debate in this Committee otherwise it would be out of scope, as it was judged to be in the House of Commons. The noble Lord, Lord Davies, asked about legal protection. Legal protection for all Armed Forces personnel would be out of scope of this Bill.
I hope that I have answered all the noble Lord’s concerns and I urge him to withdraw his amendment.
Lord Rosser
I thank my noble friend Lord Davies for his contribution and support and also the noble Lord, Lord Palmer of Childs Hill for his contribution. The Minister has once again done us the courtesy of giving us a very full and comprehensive response to the amendment, setting out the Government’s position. I am slightly disappointed with the reply, although I do not want to suggest that I had imagined the Minister would say that the Government would accept the amendment.
The Minister made reference to ambulance staff not having this kind of protection. That may be true in England and Wales, but I do not think that it is true in Scotland, where I believe it is offered to members of the emergency services. If I am proved wrong in saying that, I shall of course apologise. However, I think there is a wider scope in Scotland which goes beyond the police. In England and Wales, that kind of protection is there in respect of the police but does not extend beyond that.
I would like to reflect on what the Minister has said before deciding whether to pursue this at a further stage and in discussions on the Bill. In the meantime, I thank him again for his comprehensive reply, which I appreciate, and I beg leave to withdraw the amendment.
Defence Reform Bill
Lord Rosser Excerpts(10 years, 3 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Dannatt (CB)
My Lords, I identify with the comments of my noble and gallant friend. He made many of the points I would otherwise have made. I share his scepticism here. I understand the purpose behind these amendments but I have some concern about seeing them included in a Bill such as this at the present time. On the other hand, I very much welcome the debate on the wider subject.
I just amplify one of the points made by my noble and gallant friend. In the popular mind, so-called “drones”, or “unmanned aerial systems” or “unmanned aerial vehicles”—the name professionally and technically which we have used for many years—are large and operate over great distances. However, within the same overall category come small battlefield UAVs. Some are small enough to be able to look over a hill into a valley beyond and report back to a ground tactical commander. There are reconnaissance and weapons-deploying issues here, and issues of large and small size. Because of that complexity, the issue definitely merits further investigation and debate, with the formation of a wide-ranging piece of legislation dealing with definitions and bringing the whole into a proper regulatory format. For that reason alone, while I recognise the intent behind the amendments, this should be taken forward in a somewhat different way.
Lord Rosser (Lab)
My Lords, I will be very brief indeed. Obviously, views have been expressed about keeping the law and its enforcement up to date with developments in the nature and conduct of warfare. Also, at the back of what has been said there is a desire to know what is going on in our name and what the outcomes have been in relation to the use of some of the unmanned systems to which reference has been made. Certainly I await with interest the Minister’s response.
There seems to have been a general acceptance that this is an issue which should be debated and discussed, although obviously doubts have been raised as to whether, as far as the amendment is concerned, how relevant it is to this Bill. The only comment I would make before concluding and leaving it to the Minister to give the Government’s response is that, of course, as far as concerns the provision of any additional information that there may be, or any developments in the law, whatever is done must be consistent with the national interest and national security.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, I am grateful to my noble friends Lord Hodgson and Lady Miller, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs, for tabling the two amendments in this group. It has enabled us to have a useful and interesting debate about a number of important issues. The Defence Reform Bill deals with the future arrangements for defence procurement and the Reserve Forces, and I think it is fair to say that the debate on these amendments has drifted some way from those issues—a point made by my noble friend. In responding to them, I will try to address the specific effect of the amendments on Part 1 of the Bill, but I shall also set out more widely our position on some of the other issues that have been raised.
Before turning to the detail of the amendments, it might be helpful if I set out the UK Government’s policy on unmanned aircraft systems. I think it is important to use the correct terminology when discussing unmanned aircraft systems, or UASs. The term “drone” is often used, but the word evokes thoughts and images of computer-controlled machines free from human oversight, which is simply not the case. The term “unmanned air vehicle” had previously been used extensively in the UK, but it is no longer aligned with NATO or international thinking, and in the interests of interoperability we have now moved away from using it. Often, the actual level of human involvement is unclear when discussing unmanned aircraft systems and hence it is entirely appropriate that the term “remotely piloted aircraft system”, or RPAS, is also used as it emphasises the reality that a trained professional pilot is in control of the system. UAS and RPAS are the generic terms that define the totality of the components of an unmanned or remotely piloted aircraft together with the other necessary components, including all equipment networks and, most important, personnel.
The UK operates a range of these human-controlled systems principally for surveillance and reconnaissance purposes. There is often a misconception that remotely piloted aircraft systems are autonomous. Again, we have to be careful with the terminology as the word “autonomous” can mean different things to different people and organisations. The Government consider an autonomous system as being capable of understanding high-level intent, a system that is capable of deciding a course of action from a number of alternatives without depending on human oversight or control. Our current and future RPAS will not be autonomous. A military pilot will continue to remain in control of our armed systems, just as they are now. In fact, our current armed RPASs have greater human involvement than our other armed aircraft types. Our Reaper RPAS crews comprise highly-trained pilots, sensor operators and analysts who all make decisions in real time.
The UK currently deploys unmanned aircraft systems in support of operations in Afghanistan and of Royal Navy ships. These systems are predominantly used for intelligence, surveillance and reconnaissance tasks, providing vital intelligence in support of our troops on the ground and our sailors at sea. They provide persistent video imagery for the development of situational awareness in order to conduct planning and to protect our forces. While the sensors are broadly similar to those onboard conventionally manned aircraft, unmanned or remotely piloted aircraft systems have the ability to loiter for longer, building an intelligence picture that significantly enhances the situational awareness of our commanders.
Lord Rosser
“Information to which Schedule applies1 (1) This Schedule applies to information if—
(a) it was obtained by the Secretary of State or the contractor under or by virtue of this Part or otherwise in connection with the carrying out of functions under or by virtue of this Part, or is derived to any extent from information that was so obtained, and(b) it relates to the affairs of an individual or to a particular business.(2) Information ceases to be information to which this Schedule applies—
(a) in the case of information relating to the affairs of an individual, when the individual dies, and(b) in the case of information relating to a particular business, on the earlier of—(i) the day on which the business ceases to be carried on, and(ii) the end of the period of 30 years beginning with the date on which the information was obtained by the Secretary of State or the contractor.Offence of disclosing information2 (1) A person commits an offence if—
(a) the person discloses information, or(b) information is disclosed or lost as a result of the person’s failure to prevent the disclosure or loss through measures taken under sub-paragraph (2), and(c) it is information to which this Schedule applies.(2) A person holding information to which this Schedule applies must take adequate technical and organisational measures against unauthorised or unlawful disclosure of, and against accidental loss of, the information.
(3) Sub-paragraph (1) is subject to paragraphs 4 to 6.
(4) A person who is guilty of an offence under sub-paragraph (1) is liable—
(a) on summary conviction, to imprisonment for not more than 12 months or to a fine not exceeding the statutory maximum (or both), or(b) on conviction on indictment, to imprisonment for not more than two years or to a fine (or both).(5) The reference in sub-paragraph (4)(a) to 12 months is to be read as a reference to 6 months—
(a) in its application to England and Wales in relation to an offence committed before the date on which section 154(1) of the Criminal Justice Act 2003 comes into force, and (b) in its application to Northern Ireland.(6) If section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force on or before the day on which this Act is passed—
(a) Section 85 of that Act (removal of limit on certain fines on conviction by magistrates’ court) applies in relation to an offence under sub-paragraph (1) on and after that day as if it were a relevant offence (as defined in section 85(3) of that Act), and (b) regulations described in section 85(11) of that Act may amend, repeal or otherwise modify sub-paragraph (43)(a).Disclosure with consent3 (1) Paragraph 2(1) does not apply to a disclosure made with the consent of—
(a) the individual, or(b) the person for the time being carrying on the business (or, where there are two or more such persons, all those persons).Disclosure of information already available to public4 Paragraph 2(1) does not apply to information that has been made available to the public by being lawfully disclosed in circumstances in which, or for a purpose for which, disclosure is not precluded by this Schedule.
Other permitted disclosures5 (1) Paragraph 2(1) does not apply where information is disclosed—
(a) for the purpose of facilitating the carrying out of functions of a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975),(b) for the purpose of facilitating the carrying out by the SSRO of any of its functions,(c) for the purpose of enabling or assisting an authorised person to carry out any of its functions,(d) for the purpose of enabling or assisting a contractor to provide defence procurement services to the Secretary of State by virtue of arrangements mentioned in section 1,(e) to the person from whom the information was obtained or, where that person is associated with one or more other persons, to any such associated person,(f) by a person to whom the information is disclosed by virtue of paragraph (e),(g) under the Freedom of Information Act 2000 where there is a requirement to disclose notwithstanding available defences,(h) in connection with the investigation of a criminal offence or for the purposes of criminal proceedings,(i) for the purposes of civil proceedings,(j) in pursuance of an EU obligation, (k) for the purpose of facilitating the carrying out by the Comptroller and Auditor General of functions, or(l) in anonymised form.(2) In sub-paragraph (1)(d), “contractor” and “defence procurement services” have the same meanings as in Part 1.
(3) For the purposes of sub-paragraph (1)(l), information is disclosed in anonymised form if no individual or other person to whom the information relates can be identified from it.
(4) For the purposes of sub-paragraph (1), disclosures under paragraph 5(1)(a) to (d) and paragraph 5(1)(h) to (k) must be strictly necessary for the purpose, made in confidence and paragraph 2(1) applies to the recipient of that disclosure.
(5) Prior to making a disclosure under paragraph 5(1)(a) to (d) or paragraph 5(1)(h) to (k), the individual or business to which the information relates must be notified of the intended disclosure and must have the opportunity to challenge that disclosure.
Power to prohibit disclosure6 (1) The Secretary of State may by order—
(a) prohibit the disclosure of information to which this Schedule applies;(b) provide that a prohibition imposed by virtue of paragraph (a) is subject to exceptions corresponding to those set out in paragraphs 3 to 5 (other than paragraph 5(1)(g));(c) provide that a person who discloses information in contravention of such a prohibition commits an offence punishable— (i) on summary conviction, with imprisonment for not more than 12 months or with a fine not exceeding the statutory maximum (or both), or(ii) on conviction on indictment, with imprisonment for not more than two years or with a fine (or both).(2) The reference in sub-paragraph (1)(c)(i) to 12 months is to be read as a reference to six months—
(a) in its application to England and Wales in relation to an offence committed before the date on which section 154(1) of the Criminal Justice Act 2003 comes into force, and (b) in its application to Northern Ireland.(3) An order under sub-paragraph (1) may repeal paragraphs 2 to 5.
(4) If section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force on or before the day on which this Act is passed—
(a) section 85 of that Act (removal of limit on certain fines on conviction by magistrates’ court) applies in relation to the power under sub-paragraph (1)(c)(i) on or after that day as if it were a relevant power (as defined in section 85(3) of that Act), and(b) regulations described in section 85(11) of that Act may amend, repeal or otherwise modify sub-paragraph (1)(c)(i).(5) An order under sub-paragraph (1) is to be made by statutory instrument.
(6) A statutory instrument containing an order under sub-paragraph (1) may not be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
Authority to inspect measures to protect information7 (1) A person holding information to which this Schedule applies must permit an industry body, acting on behalf of the owner of that information, within six months of the relevant date and subsequently every three years, on reasonable prior written notice and on reasonable confidentiality and other undertakings, to audit and inspect the person’s technical and organisational measures for protecting that information in compliance with this Schedule.
(2) A person holding information to which this Schedule applies must comply with all reasonable requests or directions by the industry body to enable the industry body to verify that the person is in compliance with their obligations under this Schedule.
(3) The industry body must provide a report of its findings on each inspection to the Secretary of State within three months of that inspection. The industry body may publish each report within six months of that inspection and must include with each report any response made by the Secretary of State to that report.”
Lord Rosser
Schedule 2 is referred to in Clause 7 which is very brief and simply states:
“Schedule 2 (restrictions on disclosure or use of information) has effect”.
It is in Part 1, which deals with defence procurement. Clause 38, in Part 2, which deals with single-source contracts, is similarly brief and simply says:
“Schedule 5 contains provision about disclosure of information obtained under this Part”.
In essence, the purpose of this amendment is to seek to replicate, in respect of disclosure of information, the criminal offence provision contained in Part 2 and Schedule 5 on single-source contracts in Part 1 and Schedule 2 in respect of defence procurement. In paragraphs 4 and 5 of Schedule 2, references are made to “unauthorised disclosure” and “unauthorised use” of information but there is no reference to any penalties or implications for disclosing or using protected information. However, in Schedule 5, which relates to wrong disclosure of information obtained under Part 2, on single-source contracts, there is a reference to penalties of imprisonment or a fine.
We do not understand why there is this distinction on unauthorised disclosure of information between Part 1 and Part 2. It is our view that failure to protect protected information from disclosure should be an offence with laid-down penalties. We appreciate the purpose of Schedule 2 in enabling a GOCO to be given confidential information provided by defence suppliers and held currently by DE&S in order to take over the management of existing MoD contracts should a GOCO come into operation.
The Government’s argument for not putting the penalties in Schedule 5 for misuse of confidential information into Schedule 2 appears to be that the Official Secrets Act, along with the GOCO contract itself and the constraints of Schedule 2, will give confidential information given to the GOCO the same protection from disclosure as it has in DE&S today. If there was a misuse of information, the owner of that information could bring an action directly against the GOCO as it can at present against the Ministry of Defence. However, that raises the obvious question of why similar arrangements are not proposed by the Government in Schedule 5 in relation to disclosures of information in respect of single-source contracts.
The information covered under Schedule 2 will include private and commercially sensitive information to which the Ministry of Defence has been given access, outside of a contractual obligation, in circumstances where the owner has a reasonable expectation that the MoD would hold it in confidence and not disclose it to a third party—which, under a GOCO, might be regarded by the owner of the information as including companies that either had been, or might be in the future, competitor organisations.
The Government say that it is not appropriate for a criminal offence to be created for the disclosure of information acquired in the normal course of defence procurement on individual projects and programmes, but that a criminal offence of the disclosure of confidential information provided to the Single Source Regulations Office is justified because the information is highly detailed supplier information and is forward-looking, covering future financial performance, anticipated business plans and planned subcontracting activity.
If that is the argument the Government are going to advance again today, I remain to be convinced by it. Sections of the defence industry have certainly expressed concerns about the prospect of disclosure of their confidential information that would be provided to a GOCO operator in respect of defence procurement contracts and believe that firm penalties are needed to deter such activity. The Government’s argument may be that the information that would have to be provided in respect of single-source contracts is likely to be more commercially sensitive, and thus potentially more damaging if disclosed, than the information provided under defence procurement contracts. However, surely that is something that should be reflected in the decision on whether to prosecute and through any decision of a court on the level of the penalty to be imposed rather than by, as the Government propose, having no provision for any criminal sanction at all in Schedule 2. I beg to move.
Lord Astor of Hever
My Lords, Schedule 2 in its current form is necessary to allow a GOCO to have access to existing confidential information provided by defence suppliers that is held by DE&S so that the GOCO can take over management of existing MoD contracts. If the GOCO does not have access to that information, it will seriously curtail the contracts that GOCO will be able to manage. It will not be able to manage contracts that involve the need to access confidential information provided by a supplier. If the MoD provides confidential information from existing programmes to the GOCO without the protection conveyed by Schedule 2 in its current form, the supplier of the confidential information may claim that the MoD has no legal right to do so. The MoD could seek to negotiate amendments to contracts or obtain licences to supply the necessary information to the GOCO; however, the volume of information concerned, the amount of time and resources required to undertake the negotiations, the costs in licence fees that may be incurred and the possibility of the owner refusing mean that this is not a practical proposition.
Schedule 2 as currently drafted provides protection for owners of confidential information because there are only limited circumstances—essentially where necessary or expedient for defence procurement—when the MoD can share the information with the GOCO. Schedule 2 also provides that the GOCO is then subject to the same confidentiality obligations as the MoD. For example, some of the information the GOCO has will be classified as “UK eyes only”, the classification applied to certain information that cannot be shared with non-UK nationals due to national security issues. The GOCO would not be able to share this information with any employee or parent company that does not meet the nationality requirements.
If the GOCO misuses the confidential information, the owner can bring an action directly against the GOCO in the same manner as it could have done if the MoD had misused the information. This is in addition to confidentiality obligations that the MoD will place on the GOCO through the management services contract. The GOCO will be contractually required to maintain the confidentiality of supplier information and not to disclose it to third parties without the permission of the MoD. The GOCO’s parent companies will be third parties, so the GOCO will not be able to disclose the information to them without the MoD’s permission. The Official Secrets Act will also apply to the GOCO and its staff. The information will therefore receive essentially the same protection from disclosure as it does in DE&S today.
The proposed amendment to Schedule 2 involves deleting the existing schedule in its entirety and replacing it by what is largely a replication of paragraph 2 of Schedule 5, which creates an offence of disclosure of confidential information provided to the Single Source Regulations Office. The creation of such an offence is reasonable in the context where the information is highly detailed supplier information that will be received under the single-source pricing regulations and which suppliers are required to provide by statute. However, the situation is very different from the GOCO situation, and it is not appropriate for a criminal offence to be created for the disclosure of information acquired in the normal course of defence procurement on individual projects and programmes, where any confidentiality is capable of being protected by the GOCO contract coupled with the Schedule 2 constraints. We do not want to create new offences unless it is absolutely necessary to do so. The single-source provisions cover a supplier’s future financial performance, anticipated business plans and planned subcontracting activity. It is highly unusual for the MoD to receive access to information covered by Schedule 5. The offence and tariff proposed is consistent with that applied to other price-regulated industries such as water, utilities, telecommunications and railways. It is not appropriate to day-to-day defence procurement business, which is best conducted as a commercial relationship between the MoD and suppliers.
The new statutory framework outlined in Part 2 has been designed to help ensure that we get value for money on an average £6 billion a year of single-source procurement. Our single-source suppliers can price in the knowledge that they will not be undercut by a competitor—a highly unusual position, and one that is not conducive to getting good value for money. We need to address this, and to do so we need information about a supplier’s actual costs.
Lord Rosser
The arguments that the Minister has advanced in respect of this amendment are the ones that I indicated—fairly accurately—he would advance. I said earlier that I was unconvinced by them, and that remains my position.
Disclosure of information will be a serious matter under Schedule 2, as well as under Schedule 5. Frankly, if wrongful disclosure of information is going to become an issue under Schedule 2, it will begin to strike at the heart of confidence in the arrangements that the Government wish to proceed with in relation to the GOCO. Sections of the defence industry have certainly expressed their concerns about the prospect of disclosure of their confidential information that would be provided under the GOCO arrangements. Unlike the Government, they believe that firm penalties are needed to deter such activity.
I really do not think I have had an explanation of why the arrangements will be satisfactory and deter people from disclosing arrangements under Schedule 2 without any penalties, but those similar arrangements would apparently not be effective if they were included under Schedule 5 in relation to single-source contracts. The main difference to which the Minister has drawn attention is the view that the kind of information that might be wrongly disclosed in relation to single-source contracts would be far more damaging than the kind of information that might be disclosed in relation to defence procurement contracts under Schedule 2. Many in the defence industry think that the kind of information that could be disclosed under Schedule 2 could be extremely damaging to them and do not share the view that only information disclosed under Schedule 5 in relation to single-source contracts could have that effect.
I said in my contribution that I have not had a specific response to that issue. I said that if the Government’s argument was that the information that would have to be provided in relation to single-source contracts was likely to be more commercially sensitive and thus potentially more damaging if disclosed than information provided under defence procurement contracts, then surely that should be dealt with in the decision on whether or not to prosecute—and if there was a prosecution, reflected in the sentence that the court imposed—rather than taking the Government’s view that we will not put any criminal sanction into Schedule 2.
The Minister said that the Government do not think it is appropriate to have a criminal sanction for disclosure of information under Schedule 2. I appreciate that the Minister feels that the Government have given a convincing explanation for that. However, I do not. The Minister indicated what is at the heart of the Government’s decision when he said, “We, as a Government, do not want to keep creating more criminal offences”. That has been the main factor in making this decision. There is an overall reluctance to create more criminal offences, rather than saying that wrongful disclosure of information is a serious matter even under Schedule 2 and that there should be provision for a criminal sanction in Schedule 2 as well as in Schedule 5.
There is obviously a disagreement and difference of view between the Government and the Opposition. I shall withdraw the amendment but we may wish to pursue the matter at a later stage.
Baroness Miller of Chilthorne Domer
I apologise to the Minister but, as the noble Lord, Lord Rosser, does not appear to be going to give an opinion, I would like to ask him a question. His Government were farsighted enough to bring in the Regulation of Investigatory Powers Act—and obviously they were concerned that the legislative framework kept up with technology. Does he support, in principle, the idea behind our Amendment 15 that its reach should be extended to cover visiting forces? In his opinion, is that something that we should aim to do?
Lord Rosser
It was not my intention to intervene in this debate since it seemed to be going on to rather wider issues than strictly covered in the amendment. For that reason, I am not going to go through the specific wording of the amendment and respond to the particular points in it as to where we stand because clearly the issues being raised in this debate go way beyond the amendment and, in my opinion, way beyond the provisions of this Bill.
Lord Astor of Hever
My Lords, these amendments have enabled us to have a debate about a number of issues. The Defence Reform Bill deals with the future arrangements for defence procurement and the Reserve Forces. As with Amendments 10 and 11, which we debated earlier, the issues in this group of amendments go some way from the issues covered by the Bill. Therefore, I will address the impact of the amendments on the Bill, and I shall also try to deal with some of the other issues that have been raised.
First, I turn to Amendment 14 which would require the contractor—the GOCO—to report annually, or more frequently if specified, to the Secretary of State on the technical characteristics, capabilities and use of the equipment and services procured under the provisions of Part 1 and to ensure that anyone who provides defence procurement services to either the GOCO or the MoD provides all the information necessary to enable such a report to be made. Currently, DE&S does not report to the Secretary of State on the details of all equipment and services procured. Procurements are classified on the basis of value, and approvals take place at the appropriate level, with approvals for very high value, novel or contentious procurements elevated to the Defence Council. Where appropriate, DE&S seeks legal assessments of equipment and services procured. An established project management and acceptance process exists for equipment and services with the customer.
It is envisaged that this process would continue to exist under the GOCO arrangements. These arrangements will be agreed in the defence procurement services contract in place between the contractor and the MoD. It is currently not practical or necessary for DE&S to report to the Secretary of State on the details of all equipment and services procured and likewise it will not be practical or necessary for the GOCO to report these details to the Secretary of State.
I turn now to Amendments 15 and 16. The proposed addition to the Visiting Forces Act runs contrary to the purpose of the Act and would impose an onerous and unnecessary obligation on the Secretary of State for Defence. The UK welcomes foreign military personnel from a large number of countries. Their position in the UK is covered by the Visiting Forces Act and the NATO Status of Forces Agreement. Some are here as exchange officers, others for major exercises and some for training and education. This financial year some 3,000 foreign military personnel will have trained in the UK. For example, 65 foreign students are at the Royal College of Defence Studies here in London. Some 80 foreign officer cadets are at the Royal Military Academy Sandhurst and eight foreign officers attend the Royal Navy’s principal warfare officer course at Fareham. These military personnel are so enmeshed into the activities of the UK Armed Forces that a separate reporting mechanism concerning procurement, command and control, and premises and property, is not needed. The amendment is broad since it concerns,
“all premises and property used by visiting forces for defence purposes”.
The Visiting Forces Act and the NATO Status of Forces Agreement do not place foreign forces beyond the reach of UK law. The Act and agreement permit foreign laws and military discipline to apply to foreign military personnel in the UK, but these do not displace UK law. There is nothing unusual or sinister about this, and we require similar provisions for our forces when they are overseas. For these reasons, the Government oppose this element of the amendment. It might be helpful in this context if I clarify that RAF bases are made available to the United States visiting forces under the terms of the NATO Status of Forces Agreement and that USVF personnel in the UK are subject to the provisions of the Visiting Forces Act. I assure my noble friend that the RAF commander takes his responsibilities very seriously, and he receives very substantial training before he takes them on; I have been assured on that point.
With specific regard to oversight of the intelligence activities undertaken at RAF Menwith Hill, this is already provided by the parliamentary Intelligence and Security Committee. The committee does not comment on the details of its work programme, although it does publish information and, when appropriate, occasionally comments in its annual report on visits it has undertaken. I am able to inform noble Lords that the committee has made such occasional visits to the joint UK-US facility at RAF Menwith Hill.
Lord Rosser
My Lords, Clauses 9 and 10 relate to the transfer of employees, and the transfer of property rights and liabilities in the light of the provisions in Clause 1 in respect of defence procurement arrangements. The decision has now been made by this Government that they will not proceed with the GOCO option but will move to a changed DE&S organisation from April.
Can I ask how the Government envisaged a transfer of staff to a GOCO taking place, had they decided to continue to proceed down that road? When the Bill was being discussed in the other place, the government Minister concerned said that the Government were,
“considering a phased transfer by domain, with the initial domain—maritime—transferring two years before the competition for the remaining domains becomes effective. It is likely that the successful contractor for the initial domain will also be in the competition for the other domains and in a strong position to win them, but it is important that we maintain competitive tension to ensure that the contractor puts in a competitive and compelling bid for the other domains. Therefore, we do not intend to give exclusivity rights over those domains to the successful contractor for the initial domain, which opens up the prospect of having different contractors”.—[Official Report, Commons, 10/10/13; col. 252.]
However, a few minutes after that, in the same debate, the same government Minister said that he had had,
“some advice saying that, as drafted, the contract will be for all four domains”—
including the joint domain—
“and that, in respect of competition for the four domains, including the joint domain, after the initial phase is over the subsequent phases will transfer automatically, in the event that the performance of the contractor has been up to speed”.
Having repeated the advice that he had just been given, the government Minister in the other place said:
“Whether that survives negotiation remains to be seen. Maintaining an element of competition before agreeing the transfer of subsequent domains is quite important. We will be negotiating that as we proceed down the track”.—[Official Report, Commons, 10/10/13; col. 253.]
One is left with the impression that the government Minister in the other place was not wildly enthusiastic about the advice that he had received and had just repeated it.
I appreciate that this is somewhat academic, as this Government are not proceeding now with the GOCO, but whether there might have been more than one contractor, and the timescale for the transfer of domains, is an issue of interest for DE&S staff. It would be helpful if the Minister could indicate which of the two versions of the competition transfer arrangements for the GOCO set out by the government Minister in the other place, to which I have just referred, actually represented the Government’s intentions.
The Government are now moving to a new DE&S organisation from this April and are seeking the agreement of the Treasury and the Cabinet Office to provide the new DE&S organisation with greater freedoms and flexibilities to recruit, reward, retain and release staff; freedoms and flexibilities that are considered necessary for the effective and efficient conduct of the business. The Government have said that DE&S requires,
“a high proportion of Project Management, Commercial and Financial expertise as well as engineering and other technical specialities”.
They added:
“These specialist skills have a much higher market value than can be recognised within the civil service pay framework, and it is becoming increasingly difficult to recruit, develop, and retain those with the particular skills needed at all levels of the business”.
There are currently hundreds of posts unfilled within the DE&S organisation. Without the achievement of the proposed greater freedoms and flexibilities, the Government’s view is that the loss of skills and capability in DE&S will continue, reducing the ability of the Ministry of Defence to deliver equipment to the front line.
I appreciate that it is extremely unlikely that the Minister will be able to say any more today about the progress of the discussions with the Treasury and the Cabinet Office than he said two days ago. However, as it will affect the employees of the new DE&S organisation in April, can the Minister say something about the hoped-for timescale of the Ministry of Defence getting the new DE&S organisation fully up and running? Roughly how many of the current vacant posts in the DE&S organisation will be filled, assuming agreement is reached on the new freedoms and flexibilities, and over what timescale will they be filled? Are the current discussions with the Treasury and Cabinet Office about the principle of going outside the Civil Service pay scale, or about the extent to which it will be acceptable to go outside the Civil Service pay scale in the revamped DE&S organisation from April—or are the discussions about both issues?
The Government have said that they are looking for an injection of a significant element of private sector support in the changed DE&S organisation from April. What form will that private sector support take, in what areas of activity and at what cost? Is it a case of the private sector taking over and running some functions, of the private sector acting as consultants, or of people from the private sector coming into posts in the DE&S organisation and becoming employees of the organisation on permanent contracts? Or is it intended that it will be a combination of all three? How long is it expected to take to bring in the private sector support envisaged, and how long is it expected to be before the DE&S organisation from this April will be running and operating as fully envisaged by the Government, with its new freedoms and flexibilities, and injection of a significant element of private sector support?
Lord Rosser
I thank the Minister once again for his detailed response. I would be grateful if he would read in Hansard the points I raised as I think there are one or two questions to which he did not respond. I should say straightaway that I did not expect him to be in a position to respond to them all immediately. He has certainly answered a number of the points, but I would be grateful if he would write to me on those to which he did not respond. I also appreciate his further response in relation to the earlier debate we had on Schedules 2 and 5. I will reflect on the additional information he has just given. I certainly do not intend to pursue the Question that Clause 9 should not stand part of the Bill and I thank the Minister once again for his response.
Defence Reform Bill
Lord Rosser Excerpts(10 years, 3 months ago)
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Lord Rosser
Lord Rosser (Lab)
My Lords, I should like to talk first about the amendment before progressing to brief comments on Amendments 2, 3, 4 and 5. Clause 1(1) provides for the company providing defence procurement services or,
“another company … to acquire from the Secretary of State rights in or over premises and property used for the purposes of”,
defence equipment and support. Under what circumstances might that involve a company other than a company providing defence procurement services? The Bill makes no reference to conditions on maintenance and upkeep. It would be helpful if the Minister were to indicate the key conditions that would apply to the company concerned, bearing in mind that the premises will continue to be owned by the Government and that the defence procurement service operation could, in certain circumstances, be transferred back under complete government control.
Will the Secretary of State be continuing to oversee the upkeep of the premises, and would it be the Secretary of State or the company concerned that would renegotiate any rental or leasing of goods, equipment or property transferred under this clause? Will it be open to the company concerned to rent or lease out property acquired under subsection (1)(b)(i) that is not being rented or leased out at the time of acquisition? Will the new government trading entity responsible for DE&S from April this year be operating under arrangements in respect of property and premises similar to those intended under subsection (1)(b)(i), and, if not, what will be the arrangements in respect of property and premises that will apply to the new DE&S organisation?
Amendments 2 to 5 stipulate action that has to have been undertaken or requirements that have to be met before the arrangements for providing defence procurement services can be brought into force. The Bill appears to be largely silent on these matters. Amendment 2 requires the Secretary of State to publish guidance on the operation of the GOCO contract, which has to include,
“the system by which available defence contracts will be advertised”,
an issue of some importance, not least to small and medium-sized enterprises. Amendment 2 also puts a responsibility for operating the GOCO contract,
“to produce and report annually against progress on an export strategy”.
At the moment, we do not know—and neither do potential bidders—how available defence contracts will be advertised. This is an area in which transparency and openness is essential if we are to provide a level playing field for those interested in bidding. Perhaps the Minister can also say if the move to a bespoke, central government trading entity from April this year will or could lead to a change in how contracts are let or advertised, bearing in mind that we are to see the introduction of a significant element of private sector support.
Likewise, the extent to which equipment to be used by our Armed Forces can also be sold to other countries is an important aspect of our export strategy, and makes a valuable contribution to our export earnings. Such exports also provide us with important links, influence and contacts with other countries and their armed forces. If there were to be a change in our defence procurement arrangements, we need to ensure that an outside company operating a GOCO contract is mindful of the importance of defence exports and continues to give this area of activity the priority it needs. Perhaps the Minister can say whether the setting up of a DE&S as a bespoke central government trading entity from April, with new freedoms, flexibilities and private sector support, will or could lead to any change in approach as far as the potential for defence exports is concerned.
Amendments 3 and 4 provide for contractual obligations to be placed on the company operating the GOCO contract under subsection (2), specifically including provision to prohibit the sale of financial securities in any publicly listed company appointed under subsection (2) where such sale would result in a change of majority ownership; a provision to require non-UK companies to establish special security arrangements for the operation of the contract; and provisions to disqualify certain categories of individuals, as stated in the amendment, from a directorship of the company operating the GOCO. Amendment 5 defines special security arrangements, as referred to in proposed subsection (7A)(a) in Amendment 4.
The purpose of Amendments 3 to 5 is to draw attention to the possibility of unacceptable foreign influence over British defence interests as a result of the GOCO operation, with the private sector involvement and the consequential issue of the ownership or possible change in ownership of one or more of the companies concerned. There is also the issue of possible conflicts of interest at director level and how that will be addressed or avoided, and that is the subject of Amendment 4.
I am sure that the Government are more than aware of the significance of these issues, and I hope the Minister can say something about how they would have been addressed had the GOCO option been pursued. It would also be helpful if the Minister can say how these issues will be addressed in DE&S organisation from April, with its newly significant element of private sector support and its separate governance and oversight structure.
Lord Palmer of Childs Hill (LD)
My Lords, the noble Lord raises some interesting points, which the Government should take cognisance of. However, I ask those who tabled the amendment and the Minister whether these issues should be included in primary legislation. I jotted down the noble Lord’s points as he spoke. He spoke about the premises, and he raises important points, but those are points you deal with in contracts, when you have a lease—whether it is a repairing lease or not. It is not something one would expect to see in primary legislation.
The noble Lord talks about export strategy and the importance of defence exports. I could take this even further: the Ministry of Defence, which is very much involved in defence exports, should also be working closely with the Business Secretary to promote exports. Very often they operate in their own silos rather than together. However, that is not something which would appear in primary legislation.
The noble Lord also talks about foreign influence over defence interests, and I hope the Minister will respond to that point; however, again, it is not a matter which needs to be addressed in primary legislation. I await my noble friend’s answers to these questions but I think they are matters for regulation and secondary legislation rather than being in the Bill.
Lord Rosser
I thank the Minister for his considered response and the noble Lord, Lord Palmer of Childs Hill, for his comments. The Minister appeared to address most of the questions I raised but there is one I am not sure he gave an answer to—he may well have done so. He said that the Secretary of State would be involved if it was a case of renting or leasing out property. Could I just check that it will not then be open to the company with the GOCO to rent or lease out property acquired under Clause 1(b)(i) which was not being rented or leased out at the time of acquisition?
The Minister also made a number of references to the GOCO contract. To what extent will the terms of that contract be in the public domain or—if I can use the expression—hidden from view as far as the public is concerned? I believe that the Minister said that freedoms and flexibilities had been agreed with the Treasury and will come back to that issue on a later amendment. Once again, I thank the Minister for his response. I do not know if he is in a position to respond to the two issues I just raised but it is of course my intention to withdraw the amendment.
Lord Astor of Hever
The answer to the noble Lord’s first question is no, it would not be. I will write to the noble Lord about the second question on contracts.
Lord Rosser
My Lords, we had a lengthy debate at Second Reading on the Government’s decision no longer to proceed with their then plans for the GOCO option but to continue nevertheless with Part 1 remaining in the Bill. It was not made clear then why Part 1 was still relevant or needed and, in my opinion, that remains the situation.
Part 1 is not about some minor change, it is about a major change to the £10 billion annual defence procurement arrangements and procedures, a change to an as yet untried and untested way of doing defence procurement not only in this country but in any other country in the world. The Government now intend to go down the road of further developing DE&S+, something which one might have thought they would have done before deciding whether the GOCO option should be considered. Surprisingly, the further development of the DE&S+ organisation will be under the leadership of someone who, it has been claimed, does not actually believe that it is the best way forward but favours the GOCO alternative.
One suspects that that decision has been made at least in part because the view of that individual reflects the Government’s stance, a stance that also involves putting in place the necessary legislative provision to proceed with the GOCO option at some time in future, but with the added advantage for a future Government of being able to make the change with the minimum of further scrutiny and challenge by Parliament. There can, after all, be little or no effective scrutiny now of Part 1. There is a limit to the amount of hard information that the Government can provide about why the GOCO option would be better or what the financial advantages would be compared to other options, because we did not even get to this stage of having two or more private consortia willing to tender and set out their stall, a development which in itself raises question marks about the whole GOCO proposition.
Why then are the Government persisting with the retention of Part 1 when, even on their own admission, nothing will happen that needs the powers contained in Part 1 this side of a general election? Part 1 is not about giving this Government statutory powers that they plan to use; in fact, it is the exact opposite, it is about giving statutory powers that this Government have now explicitly said that they will not be using, following the collapse of the commercial competitive tendering process.
Part 1 should be deleted because it provides for an untested and untried major change in defence procurement which this Government do not intend to introduce and for which they cannot and will not be able to produce any evidence that it will provide a better alternative at some time in future than either the existing arrangements—or, significantly, the further developed DE&S model, which does not even come into being until April this year.
By retaining Part 1 at the same time as they say that they want to develop further the DE&S+ option, the Government create a situation of continuing uncertainty over the future of the defence procurement organisation for a period of a few years at a minimum. It will not make it easier to recruit people, for the highest levels of the organisation at least, if it is faced within a relatively short period with the real prospect of becoming a GOCO under new private ownership, as it will be the most senior people in the new DE&S+ organisation who will be the most likely to be replaced by the new owners with their own appointees.
What is the Government’s objection to saying that we are now going down the road of DE&S++ and only if that does not deliver the improvements in defence procurement that we are seeking will we look at the other options? What is their objection to saying that, in the mean time, we are not even considering other options or providing legislative provision to introduce them with inadequate scrutiny—not least because we are talking about radically changed arrangements for the future delivery not of £10 million-worth of taxpayers’ expenditure but of £10 billion-worth of taxpayers’ expenditure each year?
A major change in the arrangements for delivering on such a large sum of taxpayers’ expenditure in an area of cutting-edge technology that is crucial to the nation’s security should be subject to the fullest parliamentary scrutiny, based on the facts available and the position in relation to any new procurement arrangements at the time that the change is proposed to be made, not on the basis of the virtually non-existent facts and details that appertained a minimum of three or four years previously, at a time when it had then been decided not to proceed with such a change in defence procurement arrangements.
The Government’s proposed amendment for affirmative orders as a means of providing parliamentary scrutiny in a minimum of a few years’ time, and possibly considerably longer, is, frankly, inadequate. There is no requirement as to how much information, including comparative information, should be provided, and by whom, with such affirmative orders, or the extent to which the information justifying the action and decision covered by the order should be subject to scrutiny.
That is quite important when we are talking about a significant, untried and untested change in the arrangements for procuring defence equipment worth, as I have said, some £10 billion per annum of taxpayers’ money and when we are talking about affirmative orders that cannot be amended but have either to be accepted or rejected as a whole. The Government’s proposed affirmative orders provide no proper checks or scrutiny, bearing in mind the magnitude of what we are talking about. I fear that no soothing or calm words from the Minister about what information might be provided, or however much debate or discussion there might be will alter that fact, not because such words would not be genuinely meant, but because nothing the Minister says commits the Government who would be involved to anything. For it will not be this Government who are in office when decisions are made on whether to continue with DE&S+ or establish a GOCO.
If the decision is made to establish a GOCO it will not be this Government but the next or a subsequent Government who will decide how much information should or should not be provided to Parliament. It cannot be right to pass legislation now which enables a future, unknown Government to make a major change in defence procurement at some time ahead in circumstances that are currently unknown without having to come back to Parliament with a Bill so that they can be made to justify their proposals in detail in the light of the circumstances at the time, with their proposals subject to possible amendment as well as rejection. That is a further reason why Part 1 should be deleted from the Bill. Since it will be a future Government who will take the decision to make a radical change in our defence procurement arrangements, if that is what they decide, it is that Government, not a Government who have decided not to make the change during their term of office, who should have their proposals and reasons for the change subject to full scrutiny by Parliament through a Bill.
How do we meaningfully discuss what the GOCO option will mean in practical terms and the many questions that will need answering when we are not discussing it with the Government determining what the GOCO option means in practical terms and giving responses to the questions that need answering? There are many questions that will need to be discussed and answered but these must be answered by the Government who are making the switch to the GOCO, if that is the stage that is reached. They include questions on the GOCO relating to conflicts of interest, impact on national security, treatment of intellectual property, retention of sovereignty, the operation of any civil and criminal penalties, actual risk transfer and retention of the skills base, for example.
There are other reasons why we should not be giving some future Government at some future, unknown date the power to make major changes to our defence procurement arrangements simply through affirmative orders without full parliamentary scrutiny. Such scrutiny would also take into account how effective the changes have been that are now proposed in the DE&S+ organisation, changes which this Government did not intend to test or evaluate before making a decision on the GOCO option, since it is only now that the Government have decided to make the further changes to the DE&S+ proposition. One would have thought that the Government would have done their utmost to keep defence procurement as a core business for the Ministry of Defence and would not even have considered outsourcing through a GOCO until all options which would keep it in house had been tried, to see whether the necessary improvements could be delivered through that channel. If that can be achieved it would have the advantage of retaining the procurement capability within the Ministry of Defence and the knowledge that goes with it, which will, at the very best, be significantly weakened under the GOCO proposition.
Defence procurement is not simply about what may be the best course of action in commercial terms, but involves a multitude of considerations including political considerations such as the impact of procurement decisions on national, regional and local economies and the future of the defence industry. Such decisions can have international and strategic implications on collaborative projects, for example. It is also the case that the provision of Armed Forces equipment involves uncertainty over both the cost and capability, now and over some years, of cutting-edge technology. This has to be capable of being upgraded or adapted as necessary to meet the increasing sophistication of the equipment deployed in the future by those we might confront in differing conditions in different parts of the world. In addition, the effectiveness of equipment used by our Armed Forces can only be definitively assessed once it has been used in action.
How all these issues and considerations will be addressed and covered in the terms of a GOCO also requires answering, but by the Government who decide to make the switch to a GOCO and not by the Government who do not, and by the Government negotiating the arrangements with the successful GOCO operator and not by the Government who are not. Questions of that magnitude and importance cannot be addressed and considered in a discussion on an affirmative order, as opposed to a parliamentary Bill. Neither can this Government say that there would not be time in the legislative programme for a further Bill dealing with defence procurement, because that would be a matter for the next or a subsequent Government to decide when determining their legislative priorities. One thing that we do know is that there will have to be a further Armed Forces Bill shortly after the next general election, which will provide a legislative opportunity if one is needed at an early stage.
The Government have stated their intention to change DE&S into a new, bespoke central government trading entity with effect from April and have said that the new organisation will be permitted significant freedoms and flexibilities agreed with the Treasury and the Cabinet Office. At Second Reading, the Minister referred to,
“getting the best out of freedoms that we have agreed with Her Majesty’s Treasury and the Cabinet Office, which are necessary for the new DE&S”.—[Official Report, 10/12/13; col. 771.]
Will the Minister now spell out what those freedoms are that have been agreed with the Treasury and the Cabinet Office, what changes they will lead to in the DE&S organisation from April that do not apply in the DE&S organisation as it is today, what their impact is expected to be and what their additional cost, if any, is expected to be? What goals, objectives or targets are being set for the DE&S organisation that comes into being in April and how will they differ from those applicable to the current organisation?
It rather appears as if the new DE&S organisation, in the eyes of this Government, is to be used as little more than a stalking horse for the GOCO, since the Minister said at Second Reading:
“We believe that a GOCO remains a potential future solution for transforming DE&S once we have put in place a more robust baseline from which to contract with a GOCO partner”.—[Official Report, 10/12/13; col. 768.]
That suggests that bringing in private sector support to transform DE&S further within the public sector is being regarded simply as a stopgap measure by this Government. Be that as it may, perhaps the Minister could indicate the extent and breadth of the private sector support that is being brought in now and the form that it will take and where it will come from. Is the private sector support going to come from companies that the Government would like to see as GOCO partners?
As I have indicated, our view is that Part 1 should be withdrawn from the Bill, for the reasons that I have already given, and I hope that at some stage that is what the Government will do. Likewise, for the reasons that I have mentioned, we certainly do not believe that the Government’s proposals that Part 1 should be capable of being brought into effect by some future Government, by the passage of affirmative orders in both Houses, represents adequate scrutiny or the potential for adequate in-depth consideration or challenge.
A further amendment that we are proposing, which we regard as very much the second-best option behind withdrawal of Part 1, is for a super-affirmative order, which would require to be passed by both Houses before Part 1 could be brought into force. The amendment provides conditions that the Secretary of State must fulfil before a statutory instrument containing an order under subsection (1) in respect of Part 1 can be made. Those conditions are set out in Amendment 25 and require the Secretary of State to lay before Parliament evidence-based impact assessments of the risks and merits of at least the DE&S model as modified in 2014, the arrangements for defence procurement as laid out in Part 1 of the Bill—that is, the GOCO—and other options as may be recommended following consultation with the House of Commons Defence Committee. It also requires the Secretary of State to lay before Parliament an independent report setting out the comparative advantages of defence procurement arrangements and options to which I have just referred and for the Defence Committee to report to Parliament its findings on the independent report.
If the Government are determined to leave Part 1 in the Bill, we believe that the measures set out in our amendment would at least help to ensure that the next or a subsequent Government, if they decide to go down the GOCO route, would have to justify their decision to Parliament in some detail based on hard evidence relating to the circumstances at that time before they can proceed and that Parliament, when making its decision, would have the benefit of impact assessments, an independent view of alternative defence procurement arrangements and a review and report on that independent report by its own Defence Committee in the House of Commons. That will be the minimum necessary if Part 1 is not withdrawn from the Bill to at least ensure appropriate scrutiny of a future Government’s proposals and reasons for establishing the GOCO option for defence procurement.
Lord Astor of Hever
My Lords, I will certainly reflect on that. We never ignore advice given by the people that the noble Lord mentioned. I am very happy to organise a meeting to discuss the issue, if he feels that that would be a way forward, before Report. I will certainly take it away to reflect on it. I have just been told there were eight sittings on this issue in the House of Commons.
The noble Lord, Lord Davies, said that cost-plus is the most appropriate type of contract for this class. The GOCO will have the commercial expertise that the MoD does not possess to identify the most appropriate contracting arrangements. In future, budgets will lie with the commands, ensuring that we can more quickly respond to changes in equipment requirements. The noble Lord asked about contracting arrangements for first-class major equipment. The target cost incentive fee contracting arrangements are one of the options available to the MoD for the reasons that he described and will continue to be utilised where they are the best option to deliver and support equipment procurement.
In the light of the government amendment and the points that I have just set out, I commend Amendment 24 to your Lordships; I will take away the point that the noble Lord, Lord Robertson, mentioned; and I urge noble Lords not to press Amendments 17 and 25.
Lord Rosser
First, once again, I thank the Minister for the consideration he has given to the amendments and for the detail with which responded to the points that have been made. I also thank all noble Lords who have contributed to this debate with varying degrees of support for the super-affirmative procedure and for the deletion of Part 1. I think it is fair to say that the noble Lord, Lord Palmer of Childs Hill, very much left his options open and was waiting to hear what the Minister said on the question of the super-affirmative procedure.
My argument for removing Part 1 is that this Government no longer intend to go down the GOCO road. It will be for the next or a subsequent Government to make such a decision one way or the other, and it is that Government who should have to justify their decision in detail to Parliament in the light of what improvements have or have not been achieved through the DE&S++ organisation after the changes being introduced after April this year.
The Minister referred to the freedoms and flexibilities that have been agreed with the Treasury in relation to the DE&S organisation from April of this year but, personally, I would find it helpful if he could put in writing what has and what has not yet been agreed with the Treasury and whether there is also agreement by the Cabinet Office; we understand that those freedoms and flexibilities have to be agreed with both, and I do not think that the Minister referred to the Cabinet Office.
One justification that the Minister gave for keeping Part 1 was that it would speed up the process of moving to a GOCO if the decision was made to go down the GOCO road. I do not think that speed is the most important thing. After all, it has already just been delayed for at least three years, so how can an argument be put forward that we need this legislation in place on grounds of speed? The Minister also referred to my amendment and the proposals within it as an unreasonable burden on the Secretary of State. The convenience of the Secretary of State of the day is not the matter we should be worried about. What matters is proper scrutiny of the proposals and getting them right through parliamentary scrutiny, not speed or the convenience of the Secretary of State of the day.
Lord Rosser
“Code of conduct
(1) A code of conduct shall be prepared by the Ministry of Defence governing contact between members of the armed forces and Ministry of Defence officials and employees or representatives of defence contractors.
(2) The code of conduct shall contain the following provisions—
(a) employees of the armed forces or the Ministry of Defence at or above the rank of Brigadier General or the equivalent Civil Service grade, shall be prohibited from undertaking paid employment with a defence contractor unless two years or more have elapsed since the termination of their contract with the armed forces or Ministry of Defence;(b) the appointment of an individual as described in subsection (1) by a defence contractor shall be treated as a public appointment;(c) individuals employed under the terms of paragraph (a) shall not, whilst in the employment of a defence contractor, undertake any activity that brings them into contact with the Ministry of Defence;(d) defence contractors shall publish on an annual basis a list of current employees whose appointment was under the terms of paragraph (a);(e) a register of gifts and hospitality shall be published quarterly by the Ministry of Defence;(f) any gift or hospitality to an employee of the Ministry of Defence, member of the armed forces at or above the rank of Brigadier General, or Civil Service equivalent, or spouse or partner of such, of a value greater than £660 from a defence contractor must be placed on the register prepared under paragraph (e).(3) “Defence contractor” means a company, organisation or person whose main business is in the manufacturing or provision of equipment, works or services for defence purposes.”
Lord Rosser
Amendment 6 seeks to insert the code of conduct outlined in the proposed new clause. It seeks to address what is sometimes called the “revolving door” issue among Ministry of Defence personnel which can potentially lead to undue influence or access when bidding for MoD contracts.
The matter is relevant to the Bill as many Ministry of Defence staff could have cross-over work with, and come into contact with, the GOCO. There is also the question of whether the revolving door will become a bigger issue than now with the new DE&S+ organisation from April this year which will have greater private sector involvement, greater freedom and flexibilities and be a separate government trading entity.
We would like to see a code of conduct which precludes Ministry of Defence or military personnel of certain rank and above from working for defence contractors, say, for at least two years from the termination of their contract, requires contractors to publish annually a list of employees who have worked for the Ministry of Defence at the specified rank or above, and requires the creation of a register of gifts and hospitality over a certain value. Such a code of conduct would go some way towards slowing down the revolving door between the Ministry of Defence and defence contractors, and also reduce the brain drain or loss of skills in the Ministry of Defence.
Published information, compiled apparently from freedom of information requests, suggests that senior military personnel and former officials from the Ministry of Defence have taken up 3,500 positions with defence contractors since 1996. This trend continues today and clearly is not an issue that relates to a particular Government.
The Advisory Committee on Business Appointments appears to have insufficient influence or power. As rules can effectively be broken, or so it would appear, without sanction, there is surely a case for legislation which will bring greater accountability and transparency to this area. We suggest, as set out in the amendment, a code of conduct with tighter guidelines. I beg to move.
Lord Astor of Hever
My Lords, before I address this amendment, perhaps I may reassure the noble Lord that I will write to him, answering as best I can the points he raised. I mentioned the Cabinet Office in my earlier answer.
Lord Rosser
Perhaps I may express my regrets. I did not hear it. I accept fully what the noble Lord has said.
Lord Astor of Hever
I shall certainly write. I said that officials were in discussions with Her Majesty’s Treasury and the Cabinet Office regarding the nature of the delegations required within the DE&S budget. As far as I am able, I will write as detailed a letter as possible to the noble Lord and make sure that copies are sent to all other noble Lords who have taken part in this Committee. I can reassure the noble Lord, Lord Robertson, that I will organise a meeting to see whether we can come to some meeting of minds. We all want to do what is best for the Armed Forces and for procurement. I shall organise that meeting as quickly as I can.
On Amendment 6, I am grateful for the points raised by the noble Lord. I fully accept the critical importance of protecting the interests and integrity of decision-making within the Ministry of Defence and wider government by maintaining the highest standards of propriety of those Crown servants within the Ministry of Defence, which includes civilian staff as well as members of the Armed Forces, who interact with defence contractors. I believe strongly that the integrity and propriety of those Crown servants who may be in a position to influence decision-making should be seen to be beyond reproach.
However, I must resist the inclusion of the amendment as the issue is already effectively addressed. The code of conduct that the noble Lords wish to include seeks to address general concerns that senior government officials could be perceived to be in conflict or have vested interests when dealing with defence contractors in their day-to-day work. Further, the noble Lord, Lord West of Spithead, in his evidence session of 3 September to the House of Commons, also made mention of Title 10 of the US code, the section of the code relating to the Armed Forces of the United States.
The code of conduct that the noble Lords seek already exists within the Ministry of Defence in two forms. The first is in the form of the business appointment rules, which govern situations in which Crown servants wish to take up a relevant offer of employment within two years of leaving the Ministry of Defence. The second is the gifts, reward and hospitality rules, which govern situations in which Crown servants are offered a gift or hospitality. Together, these two important sets of rules set out the standards of conduct expected of Crown servants within the Ministry of Defence. For civilian officials within the Ministry of Defence, both the business appointment rules and the gifts, reward and hospitality rules are contained within the Civil Service Management Code, which was issued under Part 1 of the Constitutional Reform and Governance Act 2010. For military officials, the rules are contained within the Queen’s Regulations for each of the services, and the provisions of the business appointment rules have been in effect since July 1937.
The Civil Service Code states that civil servants must not accept gifts, hospitality or benefits of any kind from a third party that might be seen to compromise their personal judgment or integrity. The Queen’s Regulations lay down the conduct and procedure to be observed by service personnel on the acceptance of gifts, rewards and hospitality. In all cases, any offers of gifts or hospitality must be registered by the individual in receipt of the offer. The provisions of the business appointment rules for both military and civilian officials differ depending on the seniority of the individual, with the most senior officials requiring permission from the Prime Minister to take up an appointment following the end of their service within the Ministry of Defence.
The specific provisions of the business appointment rules are as follows. For the most senior officials in the Civil Service—at three-star level or their military equivalents—the rules require that they submit an application, which must be referred by the department to the Advisory Committee on Business Appointments, which will provide advice to the Prime Minister to enable a decision to be taken. Due to their role at the highest level of Government and their access to a wide range of sensitive information, all Permanent Secretaries will be subject to a minimum waiting period of three months between leaving paid Civil Service employment and taking up an outside appointment or employment. As a general principle, there will be a two-year ban on civil servants at three-star level and above lobbying the Government—communicating with a view to influencing a government decision or policy in relation to their own interests. For civil servants at two-star level and their military equivalents, the rules require that an application be made to the Permanent Secretary, who is responsible for making a decision and providing a written recommendation to ACOBA—the Advisory Committee on Business Appointments.
Lord Astor of Hever
My noble friend makes a very good point, which I was just going to mention. The period is three months but obviously, if a Permanent Secretary has any conflict of interest, that would be extended to two years under the normal rules. My noble friend makes a very good point.
Lord Rosser
Once again, I thank the Minister for the thoroughness of his reply on the amendment explaining the current situation, which has clearly caused some surprise in relation to some aspects. Clearly, we will want to look at what he has said when we read Hansard. I assume from his reply that the Government as a whole are satisfied with the present arrangements, and that they are being adhered to—and that there is no problem with the rules being broken, which is what I suggested might be the case. It would be helpful if the Minister could confirm that as far as the Government are concerned, there is no significant or worrying breach of the rules. Perhaps he could also comment on the role and effectiveness of the Advisory Committee on Business Appointments, as that is a matter that I and my noble friend Lord Robertson of Port Ellen raised.
I will be withdrawing the amendment, but I hope that the Minister will be able to reply to those points. I am loath to keep asking him whether he will reply in writing, as I appreciate that what he says will appear in Hansard but, bearing in mind some of the concerns that have been raised, it would be helpful if he could put in writing what he said about the distinction between the three-month period, and the circumstances in which that applies; and the two-year period, and the circumstances in which that applies.
Lord Astor of Hever
My Lords, I will be very happy to do that; in fact I was going to offer to write to the noble Lord, Lord Robertson, with copies sent to other interested noble Lords. I have been handed a fairly detailed brief on that point. Rather than reading it out, I would like to put it in a letter and address all the concerns that have been raised.
Lord Rosser
“Duty of Secretary of State to report to Parliament on increases in cost of defence contracts
(1) Where it is proposed that the total price payable for the provision of goods, works or services, procured from another person for defence purposes under a contract entered into by the Secretary of State, or a contractor acting on behalf of the Secretary of State under the provisions of section 1, should rise beyond that detailed in the original terms of the contract, the Secretary of State shall—
(a) lay before both Houses a report detailing the circumstances requiring the increased price,(b) withhold approval of any adjustment of the total price for the contract until the report has been laid, and(c) write to the chairs of the relevant parliamentary committees indicating that such a report has been laid.”
Lord Rosser
This group also contains Amendment 9. Amendment 7 addresses the issue of scrutiny and transparency over increases in the cost of defence contracts, whether entered into by the Secretary of State or a contractor acting on behalf of the Secretary of State. The second amendment provides for scrutiny of financial assistance given to a contractor by the Secretary of State under the terms of Clause 2.
The form of scrutiny provided for in the amendments is parliamentary, through reports to both Houses, and with two other requirements as set out. The Secretary of State would not be able to approve any adjustment of the total price provided for in the contract or provide financial assistance to a contractor unless the required reports had been laid.
With the responsibility for keeping within the original financial terms of the contract likely to become more remote from the Ministry of Defence and the Secretary of State if the provisions of Clause 1 are implemented, there is a need to be precise about what checks and controls will be in place and how Parliament will be kept advised and aware of increases in the cost of defence contracts. Likewise, with the Secretary of State being given power under the Bill to give financial assistance to a contractor on terms and conditions that the Secretary of State thinks appropriate, there is a need to be precise about what checks and controls will be in place over the use of that power and of taxpayers’ money, and how Parliament will be kept advised and aware of how and when the power is being used.
In that regard, perhaps the Minister could give some examples of the kind of circumstances in which this power for the Secretary of State to give financial assistance might be used and is intended under the terms of Clause 2. It would be helpful if the Minister could say whether the new DE&S organisation that will come in from April as a bespoke central government trading entity with greater private sector involvement and new freedoms and flexibilities will lead to any changes in the current arrangements for reporting on or dealing with any increases in the cost of defence contracts or changes in the role of the Secretary of State in that regard. I beg to move.
Lord Roper
My Lords, I would be grateful if my noble friend in replying to this debate could give us more information on why Clause 2 is necessary and what sort of financial assistance we are discussing here.
Lord Astor of Hever
My Lords, I totally agree with my noble friend. Before Committee I had a long debate with the team about this, and we changed my speaking notes radically. We changed “‘contractor” to “GOCO” in many cases. The answer to my noble friend’s question is GOCO, but the terms “contractor” and “GOCO” are interchangeable as far as the Bill is concerned. One can use both when describing provisions in Part 1 of the Bill, but for consistency and clarity we have decided, in my speaking notes, to use the term “GOCO” as far as possible. I note that a “contractor” slipped through the net.
In the light of what I have just said, I need to resist these amendments as unnecessary, and I hope the noble Lords will withdraw Amendment 7 and not move Amendment 9.
Lord Rosser
Once again I thank the Minister for his detailed response. I make two brief comments. Clearly the point of Amendment 7 was to seek to ensure that Parliament would still be kept advised on cost increases in defence contracts in the changed circumstances of the GOCO.
In relation to Amendment 9, if I have understood the Minister correctly, one could argue that if there is provision for financial assistance, it would mean that the risk was not being transferred to the GOCO operator but would remain ultimately with the taxpayer. That raises an important issue about the GOCO operator and the proposals: what risk is being transferred? The response given by the Minister suggests that, come the crunch, not much risk at all is being transferred. However, I do not intend to pursue the matter any further, certainly at the moment. I beg leave to withdraw the amendment.
Lord Rosser
“Transfer of employees
Employees transferred to a company by virtue of arrangements mentioned in section 1 may not be required to geographically relocate outside of the UK without full and proper consultation.”
Lord Rosser
The amendment inserts a new clause after Clause 1 to provide that employees transferred to a company under Clause 1 may not be required to geographically relocate outside the UK without full and proper consultation, which, frankly, one would hope in reality would mean that it would be done only by agreement, although that specific wording is not in the amendment.
There will be an opportunity under later amendments to consider all the possible implications for the employees affected by being transferred to a GOCO contractor organisation, and indeed of being part of the new DE&S organisation after April, with its greater flexibilities and freedoms. However, this amendment deals with a specific issue: the need to provide assurance that staff transferred to a GOCO consortium made up of at least some major international companies will not find themselves being told they must move to a position outside the UK when it is not something they would wish to do, nor would have been compelled to do when part of the current DE&S organisation. I am assuming that this could not happen under the new post-April 2014 DE&S organisation, but it would be helpful if the Minister could confirm that that is the case.
The provisions of the amendment would at least reduce the prospect of such transfers being required against the wishes of the individual concerned. This is not some minor point, because requiring an employee to move abroad is a not unknown way of either removing an employee who has fallen out of favour, or is no longer needed, out of an organisation in the UK, or alternatively if they refuse, out of a company altogether. I very much hope that the Minister will be able to provide some assurance on this point. I beg to move.
Lord Astor of Hever
My Lords, going back to the previous amendment, the noble Lord asked me about risk. I can confirm that risk is transferred but must be capped; otherwise no company would bid for a GOCO, due to unlimited liability. The noble Lord may wish to come back on that.
Amendment 8 raises an important issue. I am grateful for the points that the noble Lord raised and I agree that it is important that we protect the interests of those members of DE&S who would be transferred to the GOCO. I believe strongly that the interests of the transferring employees should be protected in the event that the new company should decide to relocate some or all of the services outside the UK. However, I must resist the inclusion of the amendment because it is not needed. Those employees transferring to the GOCO would be sufficiently protected by UK employment legislation in this regard and, accordingly, there is no requirement to include this provision in the Bill.
Noble Lords may recall the note on the Transfer of Undertakings (Protection of Employment) Regulations 2006—SI 2006/246—provided in another place for reference, which explained the protections that those regulations afford to transferring employees. In summary, the TUPE regulations protect employees if the business in which they are employed changes hands, or the services that they provide are to be provided by another organisation. The effect of the regulations is to transfer employees and any rights, powers, duties and liabilities associated with them from the old employer to the new employer. This includes any rights specified in their contract of employment, statutory rights and the right to continuity of employment. Additionally, the new employer cannot change the terms and conditions of employment of transferred employees if the sole or principal reason for the change is the transfer. This is also the case where the sole or principal reason is connected to the transfer, unless there is an ETO reason for the change, usually requiring a change in number of the workforce. This often makes it difficult, if not impossible, for new employers to amend terms and conditions of employment of staff immediately after a TUPE transfer.
The fact that this Bill makes it clear that the TUPE regulations would apply to the transfer of employees to the company would have the effect of protecting the employees’ terms and conditions of employment in place at the point of transfer, as well as representational rights. The terms of employment that will be protected include any obligation with regard to mobility. Civil Service terms and conditions of employment generally contain a mobility obligation within the UK and abroad for all but the most junior of grades. Some employees who would transfer to the GOCO will have, on previous occasions, relocated for work-related reasons both within the UK and abroad throughout their career in the Civil Service. Any proposed change of work location would be subject to general employment law constraints, which require that any enforcement of a mobility obligation must be fair and reasonable, dependent upon the personal circumstances of the individual concerned.
Noble Lords will be aware that amendments to the TUPE regulations came into force last week, and those amendments will not have a detrimental impact on employees. Further to the protections afforded to employees by the TUPE regulations, part IV of the Information and Consultation of Employees Regulations 2004 (SI 3426/2004) places a general obligation on employers to provide information to, and consult, employee representatives. Consultation is the process by which management and employees or their representatives jointly examine and discuss issues of mutual concern. It involves seeking acceptable solutions to problems through a genuine exchange of views and information. Consultation does not remove the right of managers to manage—they must still make the final decision—but it does impose an obligation that the views of employees will be sought and considered before decisions are taken.
To comply with their obligations under the ICE regulations, employers must provide relevant information to, and consult employee representatives on, all matters in relation to: first, recent and probable development of the undertakings activities and economic situation; secondly, the situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged—in particular, where there is a threat to employment within the undertaking; and, thirdly, decisions likely to lead to substantial changes in work organisation or in contractual relations. The information must be provided at such time, in such fashion and with sufficient content as are appropriate to enable the representatives to conduct an adequate study and prepare for consultation.
Furthermore, any consultation must be appropriate in terms of timing, method and content, and conducted with a view to reaching agreement on decisions within the scope of the employer’s powers. In other words, the employer must ensure that any consultation that is conducted must be meaningful, and commensurate to the change which is being consulted on. For example, if an employer were planning to move their current premises to a new building half a mile from where they were currently located, with no effect on working practices or workforce numbers, it could be deemed that the impact of this change would be minimal and, accordingly, a minimal time period of consultation of two to three weeks would be appropriate. However, if the proposal were to relocate to new premises at the other side of the UK, or even abroad, this would have a significant impact on the workforce and a period of two to three months would probably be deemed more appropriate.
I do not have an answer to the noble Lord’s question, except “confirmed”, and I would need to pad that out in the form of a letter to him. In summary, established UK employment legislation provides the required protection to the employees that this new clause is seeking to achieve and I therefore ask the noble Lords to withdraw their amendment.
Lord Rosser
I thank the Minister for his detailed and considered response, which I will read carefully in Hansard. In the mean time, I beg leave to withdraw the amendment.
Armed Forces: Widows’ Pensions
Lord Rosser Excerpts(10 years, 3 months ago)
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Lord Astor of Hever
My Lords, there are 10 categories of widow or widower under the Ministry of Defence pension and compensation schemes. I have discussed this very complex issue with the noble and gallant Lord. We both agreed that I should place a letter of explanation in the Library setting this all out, which I have done this afternoon.
Defence Ministers have enormous respect for the Forces Pension Society and for the War Widows Association of Great Britain and will continue to work very closely with both of them. Successive Governments have reviewed pensions for life, but changes cannot be taken in isolation from other public sector schemes, including those for the NHS, teachers, police and the fire service, which have similar rules in place for their older schemes.
Lord Rosser (Lab)
My Lords, we associate ourselves with the condolences expressed by the Minister to the family and friends of Captain Holloway. His death on active service in Afghanistan is another reminder of the enormity of the sacrifices that continue to be made on our behalf by members of our Armed Forces.
We have had questions before on service pension issues, including the impact of redundancy just prior to the relevant pension qualifying date. If the money is unavailable to ensure that what some would regard as the basic principles of fairness are not overlooked in some cases over service pensions, why is the money readily available to bail out the Secretary of State over misjudgments on, for example, the Joint Strike Fighter and the IT system for Armed Forces recruitment?
Lord Astor of Hever
My Lords, I remind the noble Lord that it is a fundamental principle, which has been applied by successive Governments, including that of the noble Lord, that public service occupational pension terms should not be improved retrospectively for those who are no longer active members of these pension schemes or for their dependants.
Ministry of Defence: IT Systems
Lord Rosser Excerpts(10 years, 4 months ago)
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Lord Rosser (Lab)
I thank the Minister for repeating the Answer to the Urgent Question asked in the other place earlier today. This is another example of things not working out as planned in the Ministry of Defence under this Government’s watch, following the Joint Strike Fighter U-turn, the defence procurement competition with a distinct lack of competitors and now this with the online IT recruitment scheme. The story has broken in today’s Times newspaper of a report by an IT research company on the costs and consequences of this flawed IT system. It is a pity the Secretary of State was not prepared to tell Parliament the details himself, bearing in mind the fact that he has been aware of the difficulty since early last summer.
What impact has this failure had on recruitment for both regulars and reserves, and how far behind schedule is the recruitment partnering project? What is the Government’s total figure for the additional costs that have been and will be incurred as a result of the flawed IT system, and how many Armed Forces personnel have had to return to or remain in recruitment posts as a result of this failure?
Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013
Lord Rosser Excerpts(10 years, 5 months ago)
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Lord Empey (UUP)
My Lords, the Minister will know that my interest in these matters goes back to the passage of the Armed Forces Bill in 2011, when a number of amendments were discussed in relation to ensuring that the military covenant was applied universally throughout the United Kingdom, particularly in Northern Ireland. One of the points made at that time was that many of the services that are required to be provided for soldiers, former soldiers and their families are devolved matters in different parts of the United Kingdom. The question then arose: how could the Secretary of State for Defence prepare and deliver a report to Parliament, given that he or she would not be in control of many of the services required in the regions? It was also based on the general principle that these services should be as universally available to eligible personnel throughout the UK as possible.
There are a couple of aspects to this. I understand the technical matters that the Minister has addressed, and the fact that the legislation has had to be reintroduced. However, I seek the Minister’s assurance on a couple of issues. First, the welfare issues are currently before the Northern Ireland Assembly. I have no doubt that amendments will be tabled in that Chamber. Whether they affect any of this is unclear, but sooner or later the Welfare Reform Bill will be passed in Stormont, and then we will see where that takes us. Any amendments may well involve a cost to the Northern Ireland Assembly from the block grant. I think people realise that is the case.
The issue that concerns me more than that is that the Minister is saying that the Government have received the consent of Northern Ireland Ministers from the relevant departments for these proposals. Does that mean that the Government will require a legislative consent Motion to come from the Stormont Government or the Assembly, or is there sufficient administrative flexibility for Ministers in Northern Ireland, on their own, to give the Minister and the department the assurances they seek?
The second point is one I made during the passage of the Armed Forces Bill, and I know the Minister is aware of my concern. Although the fact—if it is the case—that he has the consent of Northern Ireland Ministers is welcome, Ministers in various departments will change from time to time. Therefore, the consent of Ministers cannot be guaranteed in the long term. What does the Ministry of Defence do in the event of a Minister refusing his or her consent? That was a point I made during the passage of the Bill. In the short term there is no problem; however, in the long term there may well be one.
I therefore seek an assurance from the Minister that the Government will take all necessary steps, legislatively if necessary, to ensure that the services provided to injured personnel and their families will be provided throughout the United Kingdom, even if there is opposition from the local Administrations. I fear that a pattern has developed whereby we are hiding behind the Sewel convention, to the extent that it is now regarded as a shibboleth. Is Parliament devolving powers or giving them away permanently to local Administrations? That is a big issue for devolution generally.
The specific issue before us is that currently the consent of Ministers in Belfast is required. I understand that. At the moment, it appears that that consent is being given, and I am glad about that, but in the long term it might not be. I say to the Minister that when the next Armed Forces Bill is introduced, which I gather will be around 2016, I would be willing to bring forward proposals to correct any difficulties that might arise because the ministerial team in Belfast had, by then, changed. The issue that concerns me could arise—we have seen it already with the National Crime Agency, where it is not yet resolved.
I feel very strongly about this issue. The House accepted, during the passage of the Armed Forces Bill, that regardless of where they come from or live in the United Kingdom, the services provided to help former soldiers and service personnel who have served in the UK Armed Forces should be available as equally as possible. Nobody should suffer discrimination because they happen to come from a devolved region. This is Parliament’s responsibility, because the Armed Forces are an excepted matter under devolution. In my opinion, it will never be a devolved issue. Therefore, this Parliament has an overarching responsibility to see that these services are provided on an equitable basis, irrespective of where the recipient comes from. I seek the Minister’s assurances on all these matters.
Lord Rosser (Lab)
My Lords, the Minister has reminded us that we debated this matter on 15 October when the order was agreed and we expressed our support for it. The Minister has explained why we have to approve the order again, and that is certainly not an issue on which I wish to dwell.
I have just a couple of brief points, since I do not intend to repeat what I said on 15 October. In responding to points I raised then, however, the Minister said that the number of,
“seriously injured service or ex-service personnel … covered by this order relating to Northern Ireland … is fewer than 20”.—[Official Report, 15/10/13; col. GC 213.]
I simply ask, since the order is not coming into effect on 28 October as was envisaged, whether anyone has lost out as a result, as the order itself indicates that it comes into force on the day after that on which it is made. It would be helpful if the Minister could clarify what date that is likely to be, and whether anyone has lost out as a result of this apparent delay in bringing the order into effect for the reasons the Minister mentioned.
Lord Astor of Hever
My Lords, I thank the two noble Lords for their contributions to the debate. I very much agree with the noble Lord, Lord Empey, that all services and benefits should be universally available throughout the United Kingdom.
Five Ministers of State for Northern Ireland provided consent for these amendments to be made. The departments are the Department for Social Development, the Department of Justice, the Department for Employment and Learning, the Department of the Environment and the Department of Health, Social Services and Public Safety. No further Northern Ireland government approval is required for this SI, but the noble Lord asked me about a possible future situation where a Minister refused consent. I am afraid that I do not have an immediate answer with me, but I undertake to write to the noble Lord on this important point.