Armed Forces (Flexible Working) Bill [HL]

Lord Touhig Excerpts

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

Moved by

[Lord Touhig]

1: Clause 1, page 1, line 2, leave out from beginning to “is” in line 3 and insert “The Armed Forces Act 2006”

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[Lord Touhig (Lab)]

My Lords, Amendments 1, 2, 4 and 10 will, if agreed, mean that regulations made necessary by the passing of this Bill will be subject to the affirmative procedure. It was a point well debated in Committee, and I do not need to rehearse those arguments again at length. It is worth pointing out, however, that the Delegated Powers and Regulatory Reform Committee, following its consideration of the Bill, stated:

“The Bill will confer novel and broad powers on the Defence Council to make provision for part-time service … These powers are conferred without any detailed provisions on the face of the Bill limiting or restricting how the powers are exercised. In the circumstances we consider that the affirmative procedure should apply, and that this is so despite the fact regulations under section 329 of the Armed Forces Act 2006 are generally subject to the negative procedure”.


I believe that there is agreement across the House that the Government should heed the committee’s recommendation. I thank the Minister for his willingness to engage in discussions, both in Committee and outside, on this matter and for his undertaking that the Government are listening to the comments that are being made.

This Bill introduces provisions enabling the Defence Council to make regulations regarding part-time working and the new forms of geographically restricted service. The Defence Council will also be able to make regulations setting out the circumstances in which agreements can be varied, suspended or terminated. The provision in the Armed Forces Act 2006 that governs the parliamentary procedure to which regulations are subject is Section 373. At present, any regulations made under Section 329 are subject to the negative procedure. However, our amendments will ensure that any regulations made under the new sections to be inserted by this Bill will be subject to the affirmative procedure. Section 373(3) sets out which regulations made under the 2006 Act are subject to the affirmative procedure, and the amendment inserts reference to regulations under the Bill into that list. The amendments also amend the wording of Clause 3(6) of the Bill to reflect the fact that Clause 1 now amends two sections of the Armed Forces Act 2006 and not just one. I beg to move.

[Baroness Smith of Newnham (LD)]

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

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


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

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[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, I said in Committee that the Government would reflect further on the recommendation from your Lordships’ Delegated Powers and Regulatory Reform Committee. That committee’s recommendation is to the same effect as the amendment of the noble Lord, Lord Touhig, and indeed the proposed amendment of the noble Baronesses, Lady Smith and Lady Jolly.

I am grateful to both the noble Lord and the noble Baroness for their thoughtful contributions to this Bill. I recognise the hesitations of my noble friend Lord Attlee around the affirmative procedure in this context, but the Delegated Powers and Regulatory Reform Committee rightly highlighted to the House that some of the new Defence Council regulations to be made under this Bill will go beyond matters of pure procedure. We have considered the committee’s recommendation and its reasons for making it, and we have decided on balance that it is right to accept it. I acknowledge the strength of feeling in this House to ensure appropriate scrutiny of those forthcoming regulations.

While the intended effect of the amendments of the noble Lord, Lord Touhig, and that of the amendment of the noble Baroness, Lady Jolly, is exactly the same, I hope that the noble Baronesses will not be unduly disappointed if on this occasion I agree to accept the amendments of the noble Lord, Lord Touhig, to the Bill, which I am pleased to do.

[Lord Touhig]

My Lords, this has been a very brief but successful debate all round, I think. I am grateful to the noble Earl, Lord Attlee, for having shared his views with me on a number of occasions. I understand his concerns. I have been in this House just seven years, but one of the striking contrasts I have found with the other place is our total and utter commitment to scrutinise and hold government to account, whether it is on large issues about platforms or issues that the noble Earl may consider to be of a much lesser degree of importance. We will want to continue that. I am grateful for the support, and I am very grateful to the Minister for accepting the amendment.

I pay particular tribute to the noble Baroness, Lady Fookes, who chaired the committee that brought forward the recommendation to which the Government have certainly listened. She has done a tremendous job, and we all wish her well and hope that she is back soon.

Amendment 1 agreed.

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[Baroness Butler-Sloss (CB)]

My Lords, I regret that I have come rather late to the Bill. I am also one of those who has never done any form of military service, so I speak as a genuine civilian. I have been listening with great interest to the argument and it does seem to me that there are great dangers in using the phrase “part-time”. I think it is a very clear case. I was particularly interested by the words of the noble Lord, Lord Condon. Will the Minister take into account what the police did when they did not use the phrase “part-time” but found other phraseology? If, in fact, there are legal reasons, as the noble Earl, Lord Attlee, pointed out—which I find difficult to understand—why “to take breaks” may not answer the case, it really is not beyond the ability of Ministry of Defence lawyers, I should have thought, to look at other phraseology, suitable for the police, that could be adapted to the armed services.

[Lord Touhig]

My Lords, before I comment on the amendment, I say at the outset that as I have reflected and listened to the debate I was very much struck by the point made right at the beginning by the noble and gallant Lord, Lord Boyce. His words convinced me that there is nothing in civilian life that compares to life in the services. We in this House and in the country must recognise that when you join the Armed Forces, it is not like joining Barclays or Tesco; you are joining an organisation in which you can put your life on the line to defend our country. We in this House and in the whole country, whenever we talk about defence, must remember that and remember that it is people we are talking about.

The noble and gallant Lord, Lord Craig of Radley, when he moved his amendment on this matter in Grand Committee, raised his concerns about the term “part-time”, questioning, as the noble Baroness, Lady Jolly, has said, whether it had,

“the potential for misunderstanding and for belittling the reputation of the Armed Forces”.

He therefore asked a very simple question:

“Could a better, less questionable word or phrase be used instead?”.—[Official Report, 12/9/17; col. GC 69.]


That is at the heart of this debate.

In Grand Committee I made it clear from these Benches that we are sympathetic to the noble and gallant Lord’s amendment, and that position remains unchanged. The men and women of our Armed Forces are truly exceptional. That is accepted around the world, and it is the duty of any Government to protect this reputation. However, terminology is all-important in these matters—a point I recall the Minister also making. Communication and language is complicated enough. Call me old fashioned, but I am sure that I am not alone in this House when I say that plain speaking is the best way to communicate.

In Committee we urged the Government to respond and come back at Report. In the interim, authors of various amendments in Grand Committee received very thoughtful, helpful letters from the Minister. While I accept that this is not the only concern behind the noble and gallant Lord’s amendment, I was pleased to see the Minister stress that the Bill could not be used by a future Administration to force an individual into part-time working. I hope that he will repeat that today.

Of one thing I am certain, and again I echo the words of the noble and gallant Lord, Lord Craig, in Grand Committee:

“First, let me confirm my acceptance in principle of flexible schemes which are viable, enjoy service support and do not detract from the operational 24/7 capability of the Armed Forces”.—[Official Report, 12/9/17; col. GC 69.]


We would certainly endorse that, but I am sure that I am not alone when I say that I do not want to jeopardise the opportunity to put the simple yet powerful aspiration that the noble and gallant Lord articulated so well into action. I hope that the Government will have a positive response to help us this afternoon.

[Earl Howe]

My Lords, I begin by apologising to the noble and gallant Lord, Lord Craig, and to the House for the guidance that I gave him in my letter following Committee when I said that according to the advice I had received, it would not be possible to amend the Long Title of the Bill. That advice resulted from an honest interpretation of the Companion to the Standing Orders. It was given in good faith but it was clearly incorrect in light of further advice from the Public Bill Office, and I am sorry.

These amendments stem from concerns previously expressed by noble and noble and gallant Lords over the use of the phrase “part-time” in the Bill; namely, that its use serves to belittle the reputation of our Armed Forces and perhaps even puts those personnel who choose to work part-time at risk of some form of denigration from colleagues amounting even to bullying and harassment, because the Armed Forces will see part-time working as somehow less worthy. I have to say to the noble and gallant Lord that I do not agree with that analysis, and nor do the service chiefs.

It is important to appreciate the context of what we seek to do. The measures in the Bill are part of a series of steps we are taking to modernise the Armed Forces’ terms of service. They are entirely of a piece with some of the other forward-looking steps we have taken in the recent past, such as lifting the ban on women in close combat roles, which have helped to further modernise our Armed Forces, making them a more attractive career choice to wider sections of our society. We must continue down this path if we are to be truly representative of the people whom we serve.

As I have mentioned previously, this measure has the full support of the service chiefs. Our use of the word “part-time” is absolutely deliberate. The meaning of statute has to be clear. We want to be clear to Parliament and to our people that part-time working is indeed what we are introducing, albeit with certain constraints to protect operational capability. Personnel will be able to reduce their commitment to less than full-time and their pay will be adjusted accordingly. Whichever way one tries to explain it, this is part-time working and that is the main reason why the Bill is drafted as it is and why we continue to believe this wording to be appropriate. The noble and gallant Lord’s amendment seeks to disguise what we plan to do. I do not think that legislation should ever go down that sort of path. Legislation should make its meaning clear.

The noble and gallant Lord will no doubt argue that his amendment encapsulates the Government’s policy in different words. It does not. The phrase,

“take breaks from full-time service”,

could describe a variety of different things, including some of the flexible working opportunities already in place, such as unpaid leave, career intermissions and maternity leave. We are introducing something through the Bill that is distinctly different from those things and therefore the way we describe it needs to be very clear. The services are not afraid of plain language and plain language is what we are providing here.

It may help if I repeat what I mentioned in my round-robin letter—that “part-time” has been used in a previous Armed Forces Act. This is not an unprecedented use of the phrase in our legislation. It occurs, for example, in Section 2(1A) and 2(1B) of the Armed Forces Act 1966. It has never caused problems in the past. Circumlocution is therefore not only a wrong approach in my view, it is also unnecessary.

When the noble and gallant Lord advances an argument, I take it seriously, as does the Ministry of Defence, but I cannot agree with his premise. We do not accept the argument that the use of “part-time” will denigrate the individual who works under this arrangement, or denigrate the services in any way. Neither do we agree with the suggestion that those who choose to work part-time for a limited period are not the type of people we need in today’s Armed Forces. On the contrary, it is arguable that those who choose to work part-time, for a temporary period, for reduced pay, rather than leave the services, display an admirable commitment to serving their country. This is precisely the calibre of person that we need to retain and recruit in today’s Armed Forces.

Times move on. Working part-time is a modern, widely recognised and practised working pattern, including for those whose service and work are a vocation, to pick up the point made by the noble Lord, Lord West, quoting the noble Viscount, Lord Slim. As noble Lords may recall, I held a briefing session on 11 July this year, which some noble Lords attended, where two serving commanding officers were also in attendance. Both those officers genuinely welcomed the introduction of part-time working, which they saw as another tool to help us look after our people at times in their lives when they need it most. They had no difficulty with either the concept or the terminology we are using to describe it. The reason that they had no difficulty is that these new measures and others that we are introducing elsewhere to help improve the overall offer to our people will encourage service men and women to stay and may attract others to join.

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Moved by

[Lord Touhig]

4: Clause 1, page 1, line 17, at end insert—
“( ) In section 373 (orders, regulations and rules), in subsection (3), after paragraph (e) insert—“(ea) regulations under section 329(1) which make provision of a kind mentioned in section 329(2)(ha), (i), or (j),(eb) regulations under section 329(3A),”.”

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Moved by

[Lord Touhig]

5: After Clause 1, insert the following new Clause—
“Protection of pay and allowances
(1) Nothing in this Act shall lead to the full-time equivalent level of remuneration provided to persons serving with a regular force being reduced.(2) In this section, “remuneration” means—(a) basic pay;(b) the x-factor allowance; and(c) any other universal payments,provided to persons serving with a regular force.”

[Lord Touhig]

My Lords, Amendment 5 repeats our amendment on pay and allowances from Grand Committee. Taken together with Amendment 6, it offers greater protection and security to our service men and women who may need to use the option of flexible or part-time working as described and set out in the Bill.

I was grateful to the Minister for his response in Grand Committee and for following it up with letters to me and to other noble Lords. In Committee, the Minister offered reassurances, saying that,

“the introduction of part-time working will not be used to lower the full-time equivalent basic rate of pay, the x-factor allowance or any other universal allowances or payments available to personnel”.—[Official Report, 12/9/17; col. GC 95.]

This commitment was very much welcomed. As we have seen on so many occasions, the views of one Minister cannot be taken as representative of the views of all future Ministers, although we on this side hope that this particular Minister stays for a long time yet. I hope that the Government will accept this and feel able to put our amendment into the Bill, thus demonstrating commitment to our hard-working service men and women.

I now turn to the existing options for flexible working and, in doing so, seek to build a bridge to demonstrate that there is a clear link in the objectives of these two amendments. In a letter that the Minister sent last month, he outlined three options for flexible working that now exist: working from home, compressed hours and variable start and finish times. His letter explained in detail how these options work and, while this information was welcome, I look for assurance that the three flexible working options will continue to be available alongside the new part-time working arrangements enshrined in the Bill. The Minister’s letter did not quite make that clear. The letter said that existing flexible working arrangements recognise that a small variation in an individual’s working arrangements can have a positive impact on their working lives, which is true. It went on to say that there will be circumstances where existing options will not be sufficient and a significant reduction in working hours over a longer period can be facilitated by a part-time working arrangement.

Those arguments might seem perfectly reasonable, but I have some concern. Many service personnel, faced with some domestic or other problem causing them to seek to change their service work commitment will, nevertheless, have great difficulties if the only option on offer involves a cut in pay and a reduction in pensions. Bearing in mind that part-time working, as set out in the Bill, will involve a cut in pay and pensions, can the Minister assure us that each application for changing service work commitment will be looked at on its merits and that using the flexible working options that he outlined will be considered alongside the part-time working arrangement?

I turn to Amendment 6, which relates to the future status of Joint Service Publication 750, which outlines the range of flexible working options that I have just spoken about. It had been a concern of all sides that the introduction of part-time working—which, as I have said, will take a proportionate amount of pay and pensions from applicants—was a drastic overreaction to a genuine need for greater flexibility. I know that the Minister will not accept that, but he is aware of the concerns on this point. We were pleased, therefore, with clarification on the provisions of JSP 750 and the anticipated take-up of the part-time offer. I believe that many of the worries expressed across the House have been addressed by the Minister’s response. However, while part-time working will have a statutory footing following the passage of this legislation, this is not true of the existing flexible working options.

This amendment seeks to ensure that the options in JSP 750 will continue to be available and that, if that document is ever withdrawn by a Secretary of State, regulations must be brought forward to make a similar provision. I beg to move.

[Baroness Jolly]

My Lords, in this group I will speak to Amendment 7. We all want flexible and part-time working to be a success. Therefore it is important to monitor whether these arrangements are helpful in convincing some who may not have ordinarily thought of joining the Armed Forces so to do—I beg your Lordships’ pardon. I am very sorry, I am speaking to the wrong group.

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[Lord Touhig]

My Lords, the Minister was right when he said that I had some responsibility for the 2006 Act. I introduced the Bill, but I can take no credit for its passing because, before it did so, the then Prime Minister rang me to award me the DCM—“Don’t Come Monday”—and I was no longer a Minister, so I never actually saw the Bill through. Nevertheless, I was responsible for introducing it.

I thank the Minister for his positive response, which reassured me. We do not want to abandon what has already become established and is worth while, so I hope that the Government will see that through, as the Minister indicated. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

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Moved by

[Lord Touhig]

7: After Clause 1, insert the following new Clause—
“Inclusion in the Armed Forces Covenant Annual Report
(1) Section 343A of the Armed Forces Act 2006 (armed forces covenant report) is amended as follows.(2) After subsection (3), insert— “(3A) In preparing an armed forces covenant report the Secretary of State must—(a) outline the options available to persons serving with a regular force in relation to part-time working and serving subject to geographic restrictions; and(b) provide his assessment of what impact the options in paragraph (a) have had on recruitment and retention.””

[Lord Touhig]

My Lords, Amendment 7, if accepted, would afford the Government the opportunity to enhance the value of the Armed Forces covenant annual report. The Government deserve credit for the full implementation of the covenant and for ensuring that there is an annual report. The report shines a light on the way this country treats those who put their lives on the line to defend our freedom. It is made even more valuable by the fact that there is an external members reference group which can pick and choose what it wants to consider and comment on. So why not go one step further and ensure that, when preparing the report, the Secretary of State for Defence must take into account the two tasks that would be placed on him by paragraphs (a) and (b) in this amendment?

We discussed this in Committee and have returned to it again on Report because, on reading the Hansard report of the Committee’s deliberations, there seemed to us to be some ambiguity in the Minister’s response. In replying to me, he said:

“I share the view of the noble Lord about the importance of measuring and reporting on the impact of the changes that will be introduced through this Bill. I want to ensure that it is done in the most appropriate and effective way for both the MoD and Parliament”.


However, he concluded:

“it is likely that a future report will include a section on the introduction of the measures included in this Bill … That would be entirely appropriate”.—[Official Report, 12/9/17; cols. GC 99-100.]

This debate is really about allowing the Minister the opportunity to state without any doubt that a report on the measures included in this Bill will be included in the annual Armed Forces covenant report. I beg to move.

[Baroness Jolly]

My Lords, I apologise to the House for jumping the gun earlier.

We all want to make flexible and part-time working a success, and it is therefore important to monitor whether these arrangements are helpful in convincing some who might not ordinarily have thought of joining the Armed Forces so to do, or in persuading some existing members to remain in the Armed Forces if they were considering leaving. The Armed Forces covenant annual report is the report on the state of the armed services to the nation, so I ask the Minister not to close the door on this level of reporting. It would be helpful if he could assure the House that, in the future, the MoD would consider doing just this.

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[Lord Touhig]

My Lords, I thank the Minister for his reply. I do not have the copper-bottomed “will” that I sought, but in this case I have to say “near enough is good enough” and I will therefore withdraw my amendment.

Amendment 7 withdrawn.

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[Baroness Smith of Newnham]

My Lords, this amendment, too, replicates an amendment that was brought in Committee and refers to an issue that is fundamental to recruitment, retention and forces’ welfare, as well as the welfare of forces families: accommodation. In his response in Committee the Minister suggested that the numbers of people who might avail themselves of the opportunity to work part-time under the arrangements of the Bill would perhaps be sufficiently limited that they would not impact on forces accommodation. The idea was welcomed that all members of Her Majesty’s forces, whether full-time or part-time, if they are regulars, would be entitled to the same accommodation provisions.

However, if more people are acquired because some people work part-time, so that you might have three people instead of two people doing the job, each of those individuals would be entitled to accommodation, and at some point this might have an impact on the requirement for accommodation as a whole. Clearly, as the Minister stated in the discussion on Amendment 7, there may be cases where this will be overcome by Help to Buy and through the new employment model. However, to the extent that this is not the case, it is hugely important for service men and women and their families to believe that Her Majesty’s Government will provide adequate accommodation for them.

For that reason, we have again tabled an amendment on accommodation, both to restate that service men and women who avail themselves of this flexible model are entitled to appropriate family accommodation or single-living accommodation, and, perhaps more importantly in the longer term, to have certainty that the Government are reviewing what forces accommodation is available and whether it will be suitable for the number of service men and women we have.

One of the key things is what is available and habitable and the extent to which the accommodation, and the maintenance contracts which deal with it, are fit for purpose. We have been told on various occasions that CarillionAmey now meets its key performance indicators, yet there are still many complaints. If it meets its key performance indicators, does that mean that they are not the right ones? While this might not be the appropriate amendment to bring that forward, it would be welcome if the Minister could at least explain when we might be able to discuss such things.

[Lord Touhig]

My Lords, I am grateful to the noble Baronesses, Lady Smith and Lady Jolly, for tabling a further amendment on service accommodation. As the noble Baroness, Lady Smith, noted in Committee, there are already significant pressures on service accommodation, and that is before we even begin to consider the move to the future accommodation model from 2019.

I will not go into the detail about our concerns on the future accommodation model, but clearly there are urgent questions for the Government to answer on how the Bill will affect personnel who rely on service accommodation, particularly when the system is shaken up. There will also be more questions for the Government to answer in the future as the new system is rolled out. I am therefore glad to see the addition of the second part of Amendment 9, which would require the Secretary of State not only to provide a periodic snapshot but to be proactive in anticipating future accommodation needs. I hope that the Minister will provide us with some answers—perhaps in a further round of letters before Third Reading—and offer a firm commitment; it is important that these things are reported back to Parliament.

[Earl Howe]

My Lords, Amendment 9 is similar to the amendment to which I spoke in Grand Committee—I think it was Amendment 13 on that occasion—which sought to amend the Bill to ensure that personnel who successfully apply to work part-time will still be entitled to service family accommodation and resettlement support.

The noble Baroness, Lady Smith, will recall that during discussions in Grand Committee I provided assurances that regular service personnel undertaking part-time working would retain the entitlements currently available to full-time regulars. I was able to give those assurances because providing our people with service accommodation is pivotal to the work we are doing to enable personnel and their families with mobility in support of defence capability.

To support my earlier reassurances, I stress again that regular service personnel who successfully apply to work part-time following the introduction of these new measures will be entitled to service accommodation commensurate with their personal status category and other qualifying criteria in the same way as their full-time colleagues. There is no reason to alter the entitlement to accommodation for those who undertake part-time working in the future since these individuals will retain an enduring liability for mobility and will still be subject to the same moves associated with new assignments as others in the regular Armed Forces.

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Moved by

[Lord Touhig]

10: Clause 3, page 2, line 25, leave out “section 329” and insert “sections 329 and 373”