Armed Forces (Covenant) Regulations 2022

Baroness Goldie Excerpts

Tuesday 18th October 2022 Grand Committee

Moved by

[Baroness Goldie]

That the Grand Committee do consider the Armed Forces (Covenant) Regulations 2022.

Relevant document: 11th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, the Government have delivered on their manifesto commitment to further incorporate the Armed Forces covenant into law by introducing a new duty in the Armed Forces Act 2021. The Armed Forces (Covenant) Regulations 2022 implement key provisions of the new duty by doing two things: bringing supporting statutory guidance into force; and defining “relevant family members” of service members and former service members for the purposes of that duty.

In the 11 years since the Government put the Armed Forces covenant on a statutory footing, we have seen excellent work across the UK in support of the Armed Forces community. However, there remained concerns that some members of the Armed Forces and their families continued to experience disadvantage when accessing public services, particularly as they moved around the country. This was largely due to a disparity in the level of awareness of the covenant among local service providers. To address this issue, the Armed Forces Act 2021 introduced a legal duty on specified public bodies to have due regard to the covenant principles when exercising relevant public functions in the fields of education, healthcare and housing. These are the most commonly cited areas of concern for the Armed Forces community.

Bodies in scope of this new duty will be required to consider the needs of the Armed Forces community when developing policy and making decisions in these key areas. In this way, the duty will raise awareness of the covenant and its principles, which in turn will help to ensure that members of the Armed Forces community are treated fairly.

Regulation 2 brings into force the statutory guidance supporting the new duty. When exercising relevant public functions, the bodies in scope of the duty must have regard to this guidance, as set out in the Act. The statutory guidance will help these bodies understand what is required of them under the new duty. It does this by explaining the principles of the covenant and how and why members of the Armed Forces community may experience disadvantage, and by providing good examples of mitigating actions.

The covenant principles relate to disadvantage faced by servicepeople, including the relevant family members of service members and former service members. Regulation 3 therefore defines who is a relevant family member in respect of the new duty. Quite deliberately, a broad approach was taken in this definition, as a family group may look very different depending on circumstances, and those outside what might traditionally be defined as family may well be impacted by service life. Where family members are affected, it is usually due to their cohabitation with, or dependency on, a service member. This has, therefore, been used as the basis for the definition, which extends beyond immediate family members.

By assisting public bodies to identify groups impacted by service life, including family members, to whom they must have due regard, the guidance will be a key tool in raising awareness of issues faced by the Armed Forces community, and will help promote better outcomes for them when accessing key public services. I beg to move.

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[Lord Coaker (Lab)]

My Lords, I shall start with my noble friend Lord Jones’s remarks. He mentioned the reserves and the covenant affecting military families. My son-in-law is an active member of 4 Mercian reserve. He was recently in eastern Europe and will be away again in a couple of weeks’ time. Given that my noble friend Lord Jones mentioned the reserves, I felt I should mention that for obvious reasons.

I thank my noble friend for his remarks. The point he made about Armed Forces Day is well made and speaks for itself. I agree with everything that the noble Baroness, Lady Smith, and the noble and gallant Lord, Lord Craig, said, the contributions that they have made to where we are now with the covenant, and the challenging questions they have put to the Government to try to improve it.

We too welcome the regulations relating to the Armed Forces Covenant as far as they go, but before asking some questions I shall remind the Committee, as the noble Baroness, Lady Smith, and the noble and gallant Lord, Lord Craig, did, that there was much debate about the covenant as the Armed Forces Act 2021 passed through your Lordships’ House. Many of us called for the expansion of the covenant to all areas of public policy and for it to apply to the national Government and the devolved Administrations. Alongside that we said that having “due regard” to the covenant should include other areas of public policy as well as education, healthcare and housing, which were outlined.

The Government resisted those calls, and we therefore felt the covenant was a missed opportunity by being too narrow, particularly the failure to place a duty on the national Government in the way that they placed a duty on others. They also failed to define what “have due regard” meant, how members of the Armed Forces community can seek redress if they feel let down and how the covenant is to be enforced. The Minister knows that we welcome the regulations and the new duties they place on specified bodies and persons to have due regard to the principles of the covenant when exercising certain statutory functions in the areas of healthcare, housing and education, but it could have gone further. Having said that, these are important regulations and will make a difference.

I have some specific questions. As some of the responders to the guidance consultation asked, why does the guidance not include prescriptive actions that bodies in scope should follow to demonstrate that they are meeting the duty of having due regard? The guidance notes the value of good recording as a means of demonstrating having due regard to the covenant. However, as the Government themselves note in the guidance that they have published, it is voluntary. Why was there never a statutory requirement to record actions that show and demonstrate that a public body is having due regard to the covenant?

How, therefore, more generally—the noble Baroness, Lady Smith, in particular, alluded to this—is the covenant to be enforced? What redress is there for an individual, family or organisation if they believe that the covenant is not being properly followed or implemented? As the noble and gallant Lord, Lord Craig, asked—and I will come also to something else mentioned by the noble and gallant Lord—what action will the Government take to publicise their new regulations to ensure that awareness is as wide as it should be?

I completely endorse the position taken by the noble and gallant Lord, along with the noble Baroness, Lady Smith, that paragraph 14.1 in the regulations is crucial. In response to the amendments made and the ping-pong that took place on the Armed Forces Act, the Government have said—to be fair to the Minister, she will have argued this within the MoD—that they will come forward in 2023 with a report on how the covenant has operated. I say to the Minister that the noble Baroness, Lady Smith, the noble and gallant Lord, Lord Craig, and I will be looking quite carefully at how paragraph 14.1 is implemented and how the Government meet their commitments. As the noble and gallant Lord, Lord Craig, said, it is a particularly important point.

I come to something that the Minister has explained to me before, but it is important that this is put on the record. Tucked away in regulations will often be things understood by MoD officials and so on. The regulations that we have before us cover England, Wales, Scotland, Northern Ireland, the Isle of Man and the British Overseas Territories, except Gibraltar. Will the Minister explain why Gibraltar is excluded from these covenant regulations? Clearly, Gibraltar is extremely important to us as a base for our Armed Forces. It seems a little strange. I am sure there will be a good reason for it —some treaty or other that makes its inclusion unnecessary —but it is important to have it in the record to help those who read our deliberations to understand why that “except Gibraltar” is there.

These questions highlight once again the importance of paragraph 14.1, which basically says that the Government will assess how well the covenant operates with respect to due regard and whether there are other areas of public policy that could usefully be added to the scope of the Act as it is now. We all look to see what happens under paragraph 14.1. These regulations are an important step forward. We welcome them; we just wish they could have gone a bit further. The implementation will be everything.

[Baroness Goldie (Con)]

My Lords, I thank noble Lords for what admittedly has been a fairly short debate but not in any way lacking in quality and penetrating questions, which is entirely what I would expect from the contributors. I shall deal first with the comments of the noble and gallant Lord, Lord Craig. I thank him for his very useful historical context of the evolution of the covenant. It is worth remembering the journey that the covenant has travelled. I accept that progress may at times have been somewhat plodding, but I feel that, in recent years, we have got to a good place. These regulations are the manifestation of the important progress that has been made.

I pay tribute to the noble and gallant Lord, Lord Craig, for his perseverance in drawing attention to the role of central government and whether it should be brought within the ambit of the covenant statutory duty. I remember that we had informed and interesting exchanges at the time the Armed Forces Bill went through this House. We certainly felt that this was not an issue that should be summarily dismissed as being without merit. Our concern was that we were already biting off quite a lot in terms of what we were introducing in that Bill and in what was to be further covered by delegated legislation, and we did not want to bite off more than we could chew. The provisions now to allow for a review are meant to reassure, and I shall say a little more about them.

The review will consider the roles of the UK Government and the devolved Administrations in conducting the functions already in scope of the duty. It will also consider the extent to which they currently consider the covenant principles, as well as the benefits and costs of bringing them into scope. As the noble and gallant Lord is aware, the reason why I resisted his persuasive blandishments to include the scope of central government in the Armed Forces Act was because we did not think that it was quite within the scope of the original Bill. The Government are responsible for setting the overall strategic direction and national policy but they do not directly deliver the relevant healthcare, education and housing services to citizens.

Let me give your Lordships a little more information on the review itself. Members of Parliament will have the opportunity to assess and comment on the review in the debate on the 2022 covenant report. The Government have been working with stakeholders to establish an open and transparent evaluation process by which to investigate the evidence about whether new policy areas should be added to the scope of the duty; that point was specifically raised by the noble Lord, Lord Coaker, who was naturally interested in what criteria might be deployed to assess this. Potential additional functions will be assessed against clear and robust criteria that have been established and agreed with covenant stakeholders in order to provide advice to the Secretary of State, with whom the final decision rests.

To clarify, a blanket inclusion of all UK Government and devolved Administration bodies would not be appropriate to include within the list of specified bodies to which the duty applies because the “due regard” duty applies to specified functions that are precisely defined in law. Due to the broad-ranging work of the UK Government and the devolved Administrations, it would be impractical to seek to define precisely such functions for these bodies.

One of the questions asked by, I think, the noble and gallant Lord, Lord Craig, during our debates on the then Armed Forces Bill concerned why the duty was not extended to central government because it has a duty of care to the Armed Forces. However, the purpose of the covenant duty is to raise awareness among providers of public services of how service life can disadvantage the Armed Forces community in accessing key public services. That is why we have focused on these three areas of health, education and housing. As the noble and gallant Lord is aware, central government is directly responsible for the Armed Forces and the MoD has always looked after the welfare of service personnel. As he knows, there are various ways in which the Government can be held to account, from the requirement for Ministers to appear at the Dispatch Box and explain what has been happening to the facility for Members to put down Questions and seek debates. There is a variety of methods available for parliamentarians to call the MoD to account for what it has been doing.

Accompanied by the noble Baroness, Lady Smith, and the noble Lord, Lord Coaker, the noble and gallant Lord raised the issue of central government. I tried to cover the points that were made in my comments addressed to him. One other point that he mentioned concerned why the guidance refers to those who are ordinarily resident in the UK. The “ordinarily resident in the UK” restriction applies only to veterans. This restriction on veterans is in the Act, which is why it is in the guidance. The guidance clearly says that serving personnel are in scope

“wherever they are located—in the UK or abroad.”

Veterans who live overseas and are having issues accessing public services due to their service career will find that those issues are best raised with the relevant authority or embassy in the area in which they live because such services fall outside the responsibility of the UK Government.

[Lord Craig of Radley (CB)]

Mentioning embassies in that sense seems to bring in the possibility of central government interests and the FCDO.

[Baroness Goldie (Con)]

It may do so, but only tangentially, because the FCDO has a UK government responsibility to UK citizens abroad, which is a standard duty. It is why we have a diplomatic presence, and it is the role of embassies and consulates to assist these citizens. I suggest that that is different from placing a broad duty of care on central government in relation to the Armed Forces Act.

The noble Baroness, Lady Smith, specifically raised Regulations 3(3)(a) and (b) and the use of the phrases

“is akin to a relationship”

and, similarly,

“formerly akin to a relationship”.

I said in my opening remarks that the attempt to define family members had deliberately been made broad because, as a consequence of service within the Armed Forces, we often find circumstances which confront personnel that will not affect them in civilian situations. We are trying to be as flexible as possible.

The noble Baroness legitimately asks about there being a disagreement with armed service personnel; what if the veteran says, “I think that I was in what was akin to a relationship, and that is why I should get a house” or “be entitled to particular medical support”? It will be for the applicant who is seeking help or a particular service, in conjunction with the deemed provider of that service, to discuss whether they can resolve the matter. The regulations are not meant to be phrased unhelpfully—quite the opposite. They are meant to be as broad as they can be to ensure that this widespread blanket of support reaches as many people as possible.

This brings me to a point pertinently raised by the noble Lord, Lord Coaker, about enforcement—the teeth that can apply to this legal duty and how providers operate it. Enforcement is a complex area in general and I will deal with it in detail. Before I do, let me address the contribution from the noble Lord, Lord Jones, and a final point raised by the noble Baroness, Lady Smith, on dentistry. That very important issue will come under the health “due regard”, but it will not cover private dentistry, only the public service provider of dentistry services.

I thank the noble Lord, Lord Jones, for a very positive contribution in which he praised Armed Forces Day. I agree it is an important opportunity to acknowledge our service personnel and veterans. Within my own area of Scotland, it is something we celebrate with great respect, pride and pleasure. I was interested to hear what happens in the noble Lord’s area of Wales, as clearly Armed Forces Day has a pan-United Kingdom appeal, which I am pleased to have confirmed.

The noble Lord particularly raised reservists, and I was interested in his observation that they are perhaps underacknowledged. If he looks at the provisions regarding Future Soldier—the new model for how we see our military, infantry and army going forward—he will see some very exciting opportunities in there.

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[Baroness Goldie (Con)]

I think I was addressing the contribution from the noble Lord, Lord Jones, when we were summoned by Division Bells. I was talking about the role of reservists. Following the important review of reservists carried out by my noble friend Lord Lancaster, some really helpful and interesting virtues were identified. One quite simply is this: we have among our reservists skills that we might not regularly have in the regular Army. One of the desires is to ensure that we can offer reservists a more flexible career opportunity: that is, if we have need of a particular skill and a reservist possesses it, we can draw them in for a fixed period that they can work with and that their employer can cope with. That is why Future Soldier creates a template for an exciting future for our Armed Forces. Reservists will play a critical role in that.

The noble Lord, Lord Jones, also asked about engagement and consultation, specifically the matter of focus groups. The engagement that took place in drafting the guidance was comprehensive. We worked with our stakeholders to develop the statutory guidance, but we engage with a wide range of groups, including the devolved Administrations, covenant partners across government, the Armed Forces community, local authorities, relevant ombudsmen, and the service charity and welfare sectors. That gave us a very broad basis on which to frame our guidance.

[Lord Jones (Lab)]

That is a very broad answer. I did ask a specific question, but I know that time is of the essence.

[Baroness Goldie (Con)]

I looked at the Explanatory Memorandum. My understanding is that focus groups are designed specifically to encompass those groups that have an interest and have knowledge. I hope it is clear from the list that I just enunciated to the Committee that there has been very broad consultation, importantly, with the people who know about this, understand it, and have a stake in making sure that it works.

The noble Lord, Lord Coaker, raised a number of points, some of which I have already addressed, but particularly the important issue of the statutory duty of “due regard”. As a former lawyer, I well understand why he homed in on what exactly that means. The purpose of the statutory guidance is to help organisations understand and discharge their obligations. On enforcement, the duty we have created does not mandate particular outcomes. It is very important to be explicit about that. That is because it is not within the ability of the MoD to control what the deliverers do, whether they are devolved Administrations, local authorities or health boards. That is not what we want to do. It would therefore be inappropriate for the guidance to include a level of prescriptiveness that goes further than what is already set out in law.

We expect that, by raising awareness, we will reduce disadvantage. We do not seek to penalise or police public bodies because we are not in position to do so, but we do not want to do that anyway; they are autonomous and freestanding, and have their own responsibilities to discharge. If there was a disagreement or dissatisfaction, we imagine that the starting point would be that complaints would be pursued in the normal way, whatever that was for a health board, a hospital, an education facility or a housing complaint. I think that the vast majority of complaints would be resolved in that manner. Certainly in the first instance, any grievance should be pursued through the internal complaints process of the relevant local authority or public body. If the matter is still unresolved, I suggest that the relevant ombudsman would be able to consider the matter if the complainant did not think that the authority had followed its own policy correctly. In our work supporting the implementation of the new duty, we will certainly promote these mechanisms among our Armed Forces community.

As a last resort, and this would be a very heavy hammer to deploy, the opportunity to challenge an alleged failure to comply with the duty would be by way of judicial review. That would obviously be an unattractive prospect to many, but it could well be a legal option available to a class group of people if they were dissatisfied. To take the example of dentistry from the noble Baroness, Lady Smith, it might very well be that the provision of dentists is not a problem in one part of the UK but it might be a huge challenge in another. I imagine that if veterans or service personnel in that area felt aggrieved then they could very easily put pressure on, and they might very well have resource to bring a class action. Remedies are there.

It is important to remember that the duty does not require certain outcomes to be achieved, just that these public bodies need to consider the covenant. That will lead to better policy and decision-making in relation to the Armed Forces. I hope that reassures the noble Lord that thought has been given to this and that we anticipate the system being workable and, for providers, deliverable.

Finally, the noble Lord asked me about Gibraltar. I recall—no doubt he will correct me if I am wrong—writing to him about this. My recollection is that Gibraltar is outwith the scope of the Act and not within its jurisdiction. However, it can apply the Act using its own legislation: technically, if it wishes to invoke in respect of its own forces provisions that we have introduced in the Armed Forces Act, it can use its own legislative powers to achieve that. So it is a technical issue of being outwith the jurisdiction of and not encompassed by the Act.

I have tried to deal with the points that were raised. I hope that I have covered them. If I have omitted to deal with anything, I will gladly undertake to write to your Lordships, of course. In the meantime, I thank noble Lords for their contributions.

Motion agreed.