Armed Forces (Flexible Working) Bill [HL]

Lord Tunnicliffe Excerpts

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

[Lord Tunnicliffe (Lab)]

My Lords, I, too, thank the noble Earl, Lord Howe, for introducing the Bill and for the briefing he provided. He has always been careful to provide very thorough briefings. However, the constant theme that has arisen during this debate is the lack of detail. Many concerns have been raised as a result of the great trouble that we have envisaging how the measure will work in practice and be compatible with military requirements.

It is a pleasure to wind up this debate. Although it does not have the longest of speaking lists, it was a matter of “feel the quality, not the width”. It was good that noble and gallant Lords spoke in a way that brought us up short. We so often have conversations about the military as though we are talking about industrial production and it is just another profession. The noble and gallant Lord, Lord Stirrup, hit the point when he said that this is about targeted military action. The noble Lord, Lord Sterling, talked about having the finest force in the world. Let us not lose sight of the fact that the military is about having personnel who are able to kill people, and who are willing to risk their own lives doing so. Other than a very small part of the police force, no other sections of our community are employed to do this; it is a very special way of working.

There were one or two outlying speeches, but curiously enough they came back to this special point. The noble Lord, Lord Dannatt, talked about mental health and its problems. The noble Baroness, Lady Eaton, talked about family support. I think this comes back to the fact that when you put people in these difficult environments, which we believe is essential to our nationhood, for want of a better term, you have to peculiarly and specially support them. So I look forward to possible amendments from the noble Baroness, Lady Eaton, and, indeed, from the noble Lord, Lord Dannatt, if he ventures some—because we should treat these people whom we are asking to do special tasks in a special way.

Talking about individual speeches, I am afraid that I must dissociate myself and these Benches from the remarks of the noble Earl, Lord Attlee, which apparently suggested that women should be excluded from various tasks. I trust the military—

[Earl Attlee]

My Lords, to be clear: certain tasks. The Liberal Democrat Front Bench spokesman alluded to my speech, and did so very carefully. There are plenty of roles in the Armed Forces that women are brilliant at, but in my opinion there are some to which they are not suited.

[Lord Tunnicliffe]

I thank the noble Earl for that intervention. I will go on. Where it is reasonably practical, I do not believe that it is appropriate to exclude women on the basis that they are female. I believe that it is entirely appropriate for the military to set standards of physical performance required for a task. I entirely accept that will mean that in some areas the probability of women achieving those standards may be quite low, but the test should be: are they capable and is this reasonably practical? In that sense, I dissociate myself from the noble Earl’s remarks.

But underlying all this, we support the principle behind the Bill, as I think does everybody. The Armed Forces have distinct, often highly demanding, working conditions. However, the distinct nature of life in the forces does not mean that we should not offer our loyal service men and women opportunities to work flexibly when circumstances allow. The world is changing about us and our institutions must change. My noble friend Lord Brooke described how reluctant organisations had subsequently found flexible working to be of value to them and their employees, and how problems could be overcome. Nevertheless, while accepting the general principle, we have reservations.

We have concerns that this shift may present a slippery slope that eventually coerces or even forces service personnel to reduce their hours to save the MoD money. I have total faith that the noble Earl, Lord Howe, would not do this, but I do not have total faith that subsequent generations would not do it. In my career I have employed large volumes of labour to do jobs where the demand changed. Frequently, I would have given my right arm to have flexibility—to have that labour solely when I needed it and not to have to employ it when I did not. Flexibility is a way of saving money. Indeed, a number of noble Lords mentioned that—including the noble Earl, Lord Attlee. The noble Earl, Lord Howe, himself said that while this is not a money-saving issue, it will save money in recruitment and retention. But the fact that it is there and the continuous pressures on budgets will mean that people will be tempted—and it will not be straightforward; it will be pressures at various unit levels—to coerce and to use these devices to save money.

We on these Benches worry that junior personnel, who have already been subject to pay caps, may lose out if the introduction of flexible working is used to justify a decrease in the X-factor payment. Most of all, however, we worry about the lack of detail in the Government’s proposals. Once again, I thank the Minister and his officials for the documents that they have provided so far. However, given that this commitment originates from the Government’s 2015 strategic defence and security review, it is disappointing that your Lordships’ House has not been presented with either a more substantial Bill or indicative regulations. The department’s policy statement mentions that these proposals were drawn up following “consultation with service personnel”. Again, we have not seen the detail. The noble Earl, Lord Howe, referred to a trial. Where was the trial, what sort of units were involved, and what was the impact on those units?

The noble Baroness, Lady Jolly, said, over and over again, that we need to see the detail. The Minister should know that there is one thing your Lordships’ House does well, and that is detail. We need that in the Bill. I therefore hope that the Government will be more generous in providing information before Committee. Colleagues have asked legitimate questions during today’s debate, and I hope that they will receive detailed answers, either in the Minister’s remarks or by letter.

While the scope of the Bill is narrow, this debate has given us an opportunity to consider some related issues. In their 2010 SDSR, the Government committed to cutting 25,000 civilian jobs in the MoD by 2015. Unfortunately for the former Defence Secretary and current Chancellor, a miscalculation necessitated a further reduction of 3,000 civilian roles in order to come in on budget. Previous Governments of both parties have pursued a thoroughly sensible programme of getting the military out of uniform where they were effectively doing civilian jobs. It was a splendid programme that meant that you did not have people in uniform doing certain jobs, particularly in the increasingly complex areas of procurement, programming and all the various support roles the modern military needs. Instead they went into civilian jobs, where they could have a lifestyle like civilians, with the same flexibilities, and in general they cost less. There was almost a philosophy building up that people in the military—people in uniform—were the ones who did the real, active military stuff. They were deployed overseas at notice, fought in the front line and manned combat platforms. I wish that that had gone on, because if it had, we would have a clearer distinction to talk about now.

Combined with the lowest-ever recorded levels of satisfaction with the basic rate of pay and pension benefits, it is little surprise that some see their future outside the Armed Forces. I hope that this is one of the areas being looked at as part of the wider Armed Forces People Programme, because the introduction of flexible working can be only part of the answer to the ongoing retention problem.

We all know that service personnel form close bonds with their units. These bonds see our service men and women go to great lengths for each other, working not only for Queen and country but for each other. This includes, at times, laying down their life to save that of a comrade. The noble Lord, Lord Dannatt, said that these arrangements must be used sparingly; the noble Baroness, Lady Jolly, said that there would possibly be unintended consequences; and the noble and gallant Lord, Lord Walker, was uncomfortable about how these geographic arrangements would work. We hope that all these issues can be overcome but, before we pass this legislation, we need to know just how it will apply.

This may not be a reason to oppose these measures but can the Minister confirm whether any thought has been given to the possible impact of some personnel in the same fighting unit having significantly different working patterns from those of their comrades? Can he say a few words about what steps, if any, would be taken by commanding officers to mitigate any issues that arose? The noble and gallant Lord, Lord Craig, talked about these matters and was worried about the concept of part-time working. He felt that the words themselves were somehow incompatible with commitment.

Can the Minister also commit to providing more information about the specific criteria against which applications will be judged and about how each of the forces will go about the constant task of assessing the compatibility of flexible working with their operational needs?

In conclusion, Labour supports any attempt to strengthen the rights of working people, whether in civilian life or in the Armed Forces. It is vital to ensure that the Armed Forces can recruit and retain the best talent. Providing flexible working opportunities has a potentially important part to play, but it is certainly not the only answer.

In the spirit of cross-party co-operation, referred to by my noble friend earlier, we very much look forward to working with the Minister and his team to improve this Bill and to improve the lives of our hard-working service men and women. However, we will need much more detail to understand exactly how the legislation will work.

[Earl Howe]

My Lords, as always, and as the noble Lord, Lord Tunnicliffe, rightly said, we have had a good debate, and I thank noble Lords for their insightful contributions. I was very grateful for the supportive comments of many speakers regarding the Bill’s purport.

I will try my best to respond to as many as possible of the questions and points that have been raised but I hope that noble Lords will bear with me if I do not manage to address each and every one today. I will of course write to any noble Lord where I have something to add.

I begin with the contribution of the noble Lord, Lord Touhig. I was disappointed by his sceptical reaction to the Bill. In fact, uncharacteristically, his remarks came over as sceptical bordering on the cynical. I just ask him to give some credit to the services. I believe that we need to support them, in the first instance, for having identified a gap in the current offer to the Armed Forces and, secondly, for coming up with proposals to address that gap in a way that reflects best employment practice in industry and commerce.

Indeed, I stress one key point to the noble Lord and to the noble and gallant Lord, Lord Walker. The new flexible working options have the full backing of the three services. They have been consulted and engaged throughout the design process, and they will continue to be involved as we implement the changes. As I said earlier, the chiefs of the services support these proposals, and they have regularly provided direction and guidance during their development. That development work continues, which is why I do not currently have all the answers requested by the noble and gallant Lord, Lord Stirrup.

As I said, we have consulted the services throughout this project and their advice has helped to shape the design of the new flexible working arrangements. We recently engaged with the three services’ families federations, which have collectively said that they welcome the MoD’s plans. We continue to engage with a range of key stakeholders, and that process will intensify as we continue to develop and finesse our policies in the lead-up to the introduction of the new arrangements in April 2019.

Let me deal with another misconception. There is no question of the services or the MoD imposing flexible working on anybody. Flexible working will only happen following an application by an individual. Far from imposing on regular personnel, these changes provide further protections to personnel in enabling them to achieve a better work/life balance to suit their circumstances.

The noble Lord, Lord Touhig, and the noble and gallant Lord, Lord Walker, suggested that this could all be a plot to reduce the pay bill and/or deprive people of pay. No it is not. The new arrangements have been designed with cost neutrality in mind. As I have stressed before, this change is predominantly about giving service personnel more choice over the way they serve. It will help the Armed Forces to retain our current personnel and to attract and retain future joiners. I thought that the question posed by my noble friend Lord Attlee was very apt: why should we lose personnel because of their family set-up? The answer is, we should not, and I hope the Bill will help us to address this.

Of course, those wishing to vary their commitment will see a commensurate variation in their reward. That variation will be fair and reasonable, both to those who work flexibly and to those who do not. Pay will be calculated on a proportional basis. Further work is under way to determine the precise impact on pensions and the full range of allowances, against the principle that the outcome will be fair and proportionate. We already offer the ability to undertake flexible start and cease-work times for no loss of pay. However, the Bill is designed to offer the ability to work less than others. Therefore, it is right and fair to others to reduce pay proportionately.

As I have just said, flexible working should be seen as filling a gap in the flexible working arrangements already available in the Armed Forces. The noble Baroness, Lady Smith, was right to point out that flexible working is something of an umbrella term in this context. A number of formal flexible working arrangements, such as variable start and cease-work times, have been available for some years subject to local chain of command approval, but these invariably involve doing the same amount of work over a different working pattern, rather than a formal agreement to work less for less pay. We recently introduced a number of progressive flexible working changes, including new leave options and improvements for those taking career breaks, but these flexibilities are limited in their applicability and do not go far enough. As a snapshot, some 2,000 applications were approved across the services in the last six months, covering the various arrangements currently available.

The noble Baroness, Lady Jolly, asked whether the Bill could enable other types of flexible working, such as working from home. I have largely dealt with that and, as she will appreciate, that is not necessary because we already offer opportunities to work from home, as I know she is aware of from her own experience.

The noble and gallant Lord, Lord Craig, asked some detailed questions, including on entitlement to service accommodation. I reassure him that entitlement to service-provided accommodation is a key element of the conditions of service that support the mobility of personnel, and that entitlement will not change as a result of flexible working because it will not change personnel mobility.

The noble and gallant Lord also asked what this will mean for reserves. Reserves are already able to serve in a range of different commitments, so legislative change is not required for them. Under Future Reserves 2020 we have expanded reserves’ terms and conditions of service to meet developing service needs, and there will be no change in entitlement to medical and dental services. Regulars will remain subject to service law at all times, even when they are working part-time. As the noble and gallant Lord knows, the duty to serve and obey, enforced through disciplinary action, is central to the functioning of the Armed Forces. It will remain essential for commanders to be able to issue lawful commands to personnel undertaking part-time or geographically restricted service. Those commands must be followed. However, it will clearly not be lawful for a commander to order a regular to attend for duty on one of their agreed days off or to serve outwith the prescribed maximum number of days of separation.

Keeping part-time regulars subject to service law at all times has the added advantage of absolute clarity for all. There will be no difficult questions for personnel or commanders to consider about whether someone is or is not subject to service law on a given day. The noble and gallant Lord, Lord Craig, asked me a number of other questions and I hope that he will allow me to write to him on those.

However, what I can and should say to the noble and gallant Lord, Lord Stirrup, with great respect to him, is that this is not about flexible terms of employment. Regulars are not employed, so the legislation refers to terms and conditions of service. The noble Baroness, Lady Jolly, and the noble and gallant Lord, Lord Stirrup, asked about levels of uptake. The answer is that we expect a small but significant number to take up the new arrangements. We will manage expectations and explain that applications will be approved only where the MoD can accommodate the arrangements without unacceptably affecting operational capability. We expect that the majority of service personnel will remain on full-time commitment arrangements. So in answer to the noble and gallant Lord, Lord Walker, there will not be a specific cap on numbers, but the services will have full control over the number of people they can allow to work flexibly and will have the controls to vary this over time.

The noble Baroness, Lady Jolly, and others asked about implementation. We plan to allow the first applications from 2019, as I mentioned earlier, and we anticipate that applications and the services’ ability to accept them will grow slowly. This will take careful management and a change of culture in some areas. Implementation will include a communication campaign, along with training and guidance for commanding officers and potential applicants alike.

The noble Lord, Lord Touhig, the noble Baroness, Lady Jolly, and the noble and gallant Lord, Lord Walker, asked about the decision-making process. Commanding officers will not make the final decision on applications to work flexibly. They will be considered by an approvals authority within each service at headquarters level, which will be informed by advice from the chain of command, manpower planners, career managers and other relevant parties. The process is still being finalised, but our aim is for an agile system that will be able to administer applications efficiently.

As regards the applications that are considered, of course some will be refused, as the noble Baroness, Lady Jolly, rightly anticipated. A new flexible working application is more likely to be refused if personnel are in a role that is delivering a critical output or is highly deployable, such as on a ship or in a high-readiness unit, or have already been warned to be ready to deploy to an operational theatre. An appeals process will be put in place to reconsider applications that have been rejected. Each service will have its own separate appeals review body, which will include career managers and other subject matter experts. Personnel will retain their right to enter a service complaint if their appeal is unsuccessful, which will have the oversight of the independent Service Complaints Ombudsman.

Let me stress again that maintaining operational capability will be at the forefront of any decision on allowing a serviceperson to temporarily reduce their commitment. We will also retain the ability to recall personnel to their full commitments in cases of national crisis. We judge that in time this will enhance our national defence as it takes effect and we experience the benefits of improved retention, a more diverse workforce, and the ability to deploy a broader spectrum of our people, both regular and reserve, when and where we need them through the flexibility which this initiative will bring.

The noble Baroness, Lady Jolly, asked whether personnel will be able to join the services and take flexible working straightaway. My noble friend Lord Attlee was quite right on that point. We envisage that personnel will be expected to complete both their initial and trade training along with a period thereafter to settle in and consolidate their training before flexible working is considered.

The noble and gallant Lord, Lord Walker, asked about the legal risks of refusing applications. Decisions on applications will be subject to a robust process, taken at a senior level on advice, and, as I said, with an appeal available. A disappointed applicant will have avenues available to them to seek a remedy. Those appeals or complaints will be considered carefully, with oversight as necessary from the independent Service Complaints Ombudsman. As a result, we would not anticipate a rise in discrimination claims in this context.

The noble Baroness, Lady Jolly, raised an interesting point about workloads, wondering, if I can put words into her mouth, whether these arrangements will mean there will be more work for those who do not avail themselves of flexible working. We will manage the levels of flexible working permitted and therefore will be able to ensure that the right levels are maintained to deliver defence outputs. It is envisaged that capacity surrendered to flexible working arrangements will either be within reducible capacity or otherwise be sourced through other means, such as employment of reserves. Like other organisations with part-time workers, the organisation will change over time to better accommodate flexible working.

The noble Lord, Lord Touhig, asked what skills have been lost so far. I simply say that all personnel who depart take hard-won skills and experience with them, as he will know. Saving any of those skills will clearly help. While figures on the number of skilled service leavers are not held centrally, the Ministry of Defence is absolutely committed to ensuring that our personnel who leave the Armed Forces make a successful transition to civilian life.

The noble Lord also indicated that he would propose that new Defence Council regulations should be subject to the affirmative resolution procedure. The changes will be made by amending existing Defence Council regulations, which are subject to the negative procedure. The matters to be set out in new regulations will be procedural—the right to apply, the right to appeal and so on. The negative procedure is appropriate in this context.

The noble Baroness, Lady Jolly, asked what the prescribed circumstances would be to vary or terminate the new arrangements. These will be set out clearly in new Defence Council regulations, scrutinised as necessary by Parliament. The new arrangements will be terminated only when absolutely necessary—for example, as I indicated, in a national emergency or when there is a major manning crisis.

The noble and gallant Lord, Lord Walker, suggested that we should prohibit those availing themselves of flexible employment from undertaking secondary employment. I simply say to him that this Bill is not about enabling secondary employment. Regulations already exist with stringent controls over the types and forms of employment that may be accepted, but only with authority. As in all cases, service duty takes precedence.

The noble Baroness, Lady Jolly, asked whether flexible working would affect someone’s chance of promotion. Many factors affect promotion, as she is aware, but a period of flexible working will not of itself impact on promotion. In designing the new arrangements we have agreed a number of principles with underpinning activities aimed at ensuring that very thing. These include that we would wish to avoid intentional or unintentional career penalties for those who undertake flexible service. We will create the opportunity for individuals to maintain or regain career momentum. We will seek to maximise accessibility of transfer between the regulars and reserves in both directions by minimising negative career impact. When one thinks about it, a decision on promotion is very largely forward-looking, rather than looking back. It is very substantially about the person’s potential.

The noble and gallant Lord, Lord Walker, asked whether personnel would be able to dodge deployments. In the right circumstances some will be able to avoid being deployed, but a request on those lines will be approved only where the service can continue to deliver its operational capability. It will be refused where that cannot be achieved. Protection from deployments for a limited period where possible will retain some of our skilled personnel.

The noble Baroness, Lady Smith, asked how personnel would find out about flexible working. We have a communications plan in force already to build on the reality of the flexible duties trial, but I shall be able to give her further particulars of that in due course.

My noble friend Lord Sterling raised the important issue of service ethos and was worried that our proposals might damage it. I hope that, as the Bill proceeds, I can convince him that that will not be so. In fact, we expect that the arrangements will enhance ethos over time by helping us to retain and recruit the best people for defence. The evidence that we have gathered from published research literature, consultation with our people, surveys and an ongoing trial tells us clearly that personnel have reported consistently that the impact of service life on family and personal life is the most important factor that might influence them to leave. The three most frequently cited benefits of flexible working are that it helps employees to reduce the stress and pressure they feel under, it enables better work/life balance and it encourages people to stay with their current employer.

I was grateful to my noble friend Lady Eaton for her contribution about family stability and support. I will write to her about the points that she raised. I should be glad if she could provide evidence of the gaps that she feels exist and that are not currently provided for by other statutory bodies in family support, so that I can understand what type of additional support she feels is needed by service families. We need to understand whether families want that additional support, because finding a balance between paternalism and an intrusive approach against making that support readily available is clearly very important.

I listened carefully to the noble Lord, Lord Dannatt, who argued for better mental health service availability for serving personnel. I will gladly follow up the points that he raised after this debate. I also listened carefully to the noble Lord, Lord Brooke of Alverthorpe, regarding his Private Member’s Bill on the abuse of military honours. The Government were well disposed in principle towards the Bill introduced in the previous Parliament; I should be happy to talk to him about the introduction of a similar Bill in your Lordships’ House and the scope for giving it appropriate debating time, which of course is a matter for the usual channels. We explored whether it might have been possible to amend this Bill in the sense that he has suggested, but the advice that I had was that it was not within the scope of the Bill’s Title. As I have said, I would be glad to talk further to the noble Lord.

[Lord Tunnicliffe]

Where the Minister responds in writing to Members, I would be grateful if he could copy it electronically to all of us who have taken part in the debate.

[Earl Howe]

I should be glad to do so.

I am conscious that in the time available I have not responded to the noble Earl, Lord Listowel, on his concerns about families, the noble Baroness, Lady Burt, on BAME recruitment and other matters, and the noble Baroness, Lady Smith, on families’ accommodation. I will do so, however, in writing.

I hope that, despite the reservations that have been voiced, this Bill will receive a fair wind from your Lordships. Our Committee proceedings will doubtless enable us to explore a number of areas of detail about which, quite understandably, noble Lords have raised questions. Until then, however, I commend the Bill to the House.