Armed Forces Commissioner Bill

Baroness Goldie Excerpts

2nd reading
Wednesday 5th March 2025 Lords Chamber

[Baroness Goldie (Con)]

My Lords, I first place on record my admiration for and appreciation of our Armed Forces personnel. They are great. They make incredible sacrifices to keep us safe, as the Minister so eloquently and poignantly described, as do their families, and they deserve our unqualified gratitude and support.

His Majesty’s Opposition will adopt the same approach to the Bill as our colleagues in the other place. We want to be a critical friend. The Bill is well intended; we respect that it is a government manifesto commitment, and we shall support it. But for the sake of our Armed Forces, we owe it to them to ensure that the new position created by the Bill—an Armed Forces commissioner—does what it says on the tin, and that everyone is quite clear what the tin looks like. Our scrutiny will be diligent but, I hope, constructive. We have to be sure that the abolition of one structure and the creation of another creates neither gaps nor unintended consequences. I thank the Minister for his customary courtesy in engaging with me and my noble friend Lord Minto on the Bill.

I will start with a couple of process observations. Clauses 1 and 2 establish the job spec of the Armed Forces commissioner. As the Minister articulated, these are important functions: the general welfare of service personnel and their family members, and improving the public’s understanding of the welfare issues faced by service personnel and their families. Clause 1 also contains a wide suite of extensive powers. Clause 2 abolishes the role of the previous Service Complaints Ombudsman, so the new Armed Forces commissioner is taking on a very big job.

There needs to be greater parliamentary scrutiny of the initial appointment of the commissioner. Interestingly, the German model on which this is based is a parliamentary model, and that has not been totally replicated by the provisions of the Bill. I am not quite sure why that is, but perhaps the Minister can offer clarification in his wind-up.

As the Minister said, the commissioner is very free standing and deliberately independent, as far as possible, of the Ministry of Defence. For these reasons, the Defence Select Committee in the other place should offer an advisory opinion to the Secretary of State for Defence on the suitability of the candidate prior to any formal appointment.

The Bill makes explicitly clear that the individual will be neither from the Armed Forces nor a civil servant, so two obvious areas of expertise are excluded. That is fine in principle, but there needs to be total transparency about the chosen candidate, their qualifications to do the job, their relevant experience and of course their security suitability. Similarly, the commissioner’s accountability to Parliament needs to be more explicit, but that is something we can explore further as the Bill proceeds.

One broad but important issue that I have identified as emerging from the Bill, which I have shared with the Minister, is quite simply the proper balance of power between the Secretary of State for Defence and the commissioner. While the commissioner must be independent, the MoD is one of the most sensitive departments in government, and proper and responsible regard must be had to the delicate security issues surrounding defence premises, widely defined under the Bill. These could include nuclear facilities, Porton Down or premises that are the subject of operational activity.

I should like to see the commissioner’s deference to the Secretary of State on issues of security and safety more fully spelled out. There is recognition of this but, for example, if I understand the Bill correctly, if the commissioner proposes to exercise these powerful provisions for entry to premises, notice must be given to the Secretary of State within a period determined by the commissioner, and if the premises are in the United Kingdom, the commissioner is not required to give any notice at all if the commissioner considers that it would defeat the object of exercising the power. While the Bill quite rightly says that the Secretary of State can prevent or restrict the exercise of that power on grounds of national security or safety, that is a little challenging when they may not have received any notice from the commissioner that entry to premises is happening.

Would it not be more sensible to turn this around and to require the commissioner to give a minimum notice period of seven days to the Secretary of State of intended access to premises, unless the commissioner considers that there are extraordinary issues of potential loss of evidence or usage of currently unsafe premises, when the notice requirement would be suspended? In the latter case, the commissioner should be required to give the Secretary of State an explanation in writing for proceeding without notice. The advantage of that approach is that it would minimise compromise of national security and safety and avoid potential direct confrontation between the commissioner and the chain of command. The Secretary of State would at least have knowledge of any intended access.

The Bill will achieve an amalgam of what the Service Complaints Ombudsman used to do. I too pay tribute to Mariette Hughes and thank her for her unstinting hard work. That is a big block of work that will now land with the new commissioner, in addition to the new duties of general service welfare, as previously described.

There needs to be a clear separation of what the Armed Forces commissioner is reporting on in his annual report. There are two separate sets of distinct responsibilities here; we need to achieve clarity as to how they are being addressed under the new arrangements. That leads on to a question about resource. I am sure the Minister will be able to reassure the House that proper thought has given regard to that. However, from looking at the ombudsman’s annual report for 2023, we see that the current workload is hefty. We are talking about a significant volume of work falling on this new commissioner.

I will move on to the issue of drafting. I am smiling as I see former chair of the Constitution Committee, the noble Baroness, Lady Drake, is in her place. I became aware under her wise stewardship, as a member of that committee, just how important the drafting of legislation is, and how we should not inhibit those who have a responsibility—such as the noble Baroness’s former committee—from pointing out where they think there are issues.

This legislation achieves effect by changing another Act. That means it is quite difficult to get the whole picture from looking at the Bill; you have to do a bit of detective work behind the scenes. We have to live with that and I realise why that has been adopted as a modus operandi, but there is reliance on secondary legislation. I have shared with the Minister that that is quite extensive. As he is aware, there are various provisions in the Bill that provide for subordinate legislation, such as new Section 365AA(2)(b) and (5), and new Section 340IA(4)(e) and (8).

I hope the Minister, with his Bill team, can look at this and seriously consider whether we can put more information in the Bill. For example, the functions of the commissioner are the functions, so why can we not just define them and leave it at that? The Bill seeks to specify what the Armed Forces commissioner cannot investigate. Fine; if that is it, that is it. Equally, the Bill seeks to specify “family members”. Surely the Bill can be much clearer about who they are. I would have thought immediate family members within the circle—perhaps those residing with Armed Forces personnel—would likely be included, and I do not think it is meant to be a wider family connection, but I would not have thought it was beyond the skill of drafting to try to be more explicit about that.

The noble Lord is well placed to set a good example in drafting. He is a model Minister in every respect, and I know he will not disappoint me on this front either. I look forward to hearing his thoughts on whether we can make a better fist of trying to make the Bill a little more explicit.

In conclusion, we cannot anticipate what issues of general welfare may arise that the commissioner will feel obliged to investigate, but the tragic case of Jaysley Beck, to which the Minister referred, and her death, so recently reported on by the coroner, was deeply troubling. Our thoughts and sympathies are with her family. I am aware that far-reaching changes have been made in the MoD since Jaysley’s death in December 2021. The chain of command no longer investigates complaints, there is zero tolerance of unacceptable sexual behaviours —an instructor found to have engaged in such behaviour will be immediately dismissed—and where criminal activity has taken place there is now the Defence Serious Crime Unit and a victim support unit. However, Jaysley’s case demonstrated that she did not feel able to complain in the first place through fear of what that would mean for her career.

No matter how effective other processes and procedures are, the only way to address that fundamental fear is to have some type of anonymous whistleblower system. If the Minister is sympathetic to that, that function could sit well in the new Armed Forces commissioner’s office. I do not know whether we need statute law to establish it; it may be within the executive authority of the Secretary of State for Defence to do it now. I offer the proposal as a serious suggestion, and I welcome the Minister’s comments in his winding-up speech. Like him, I also look forward to the maiden speech of the noble Baroness, Lady Carberry. Finally, I look forward to the debate on this Bill. These Benches wish it well, and I look forward to the Minister’s response.