Armed Forces (Flexible Working) Bill [HL]

Baroness Jolly Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 12th September 2017 Grand Committee

[Lord Craig of Radley (CB)]

My Lords, I shall speak also to Amendments 2, 3 and 5, which are in this group. The amendments in this group are tabled in my name and those of my noble and gallant friends Lord Boyce and Lord Walker, neither of whom is able to be present today, but I speak on their behalf.

As I suggested at Second Reading, I question the sense and the potential for misunderstanding and for belittling the reputation of the Armed Forces if the phrase “part-time” is specifically used in the mixed and more flexible working arrangements. Could a better, less questionable word or phrase be used instead? 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.

The first sub-paragraph of Amendment 1, sub-paragraph (i), seeks to retain the general concept of flexibility without specific reference to “part-time”. As the Minister has explained, the purpose of this short Bill is specifically to sketch out an additional flexible working scheme, described as serving on a part-time basis. Even so, it was notable that in his opening 10-minute speech at Second Reading, the Minister mentioned “part-time” only once, but he used “flexible” and “flexibility” at least 17 times, so it seemed worth reflecting that balance by referring to flexibility in a general way. It could be the basis for introducing further types of flexible working in the future.

The second provision of this amendment is to promote the use of unpaid leave of absence as an alternative approach to part-time. In his letter of 21 July, the Minister made specific reference to existing use of unpaid leave for flexible working. It said:

“Options already available for flexible working include both working patterns and the use of paid and unpaid leave”.


At present I am unclear about what so distances this Bill’s part-time basis from these other examples.

The Minister described “part-time” at Second Reading and in his letter of 21 July. In his speech he said:

“Service personnel will be able to temporarily reduce the time they are required for duty—for example, by setting aside one or two days a week”.—[Official Report, 11/07/2017; col. 1176.]


In his letter, he referred to women starting a family or those who wish to undertake long-term studies. These suggest to me a variety of periods and lengths of approved absences and—in part—appear to be more widely drawn than civilian-style part-time working. Fact sheet 2 also states that periods would be limited,

“to no more than 3 years at any one time”.

Will the request for absence be measured in reducing the 24/7 commitment to, say, 24/6 or 24/5, for example, over a period of weeks or months? A member of the Armed Forces does not sign up to work so many hours in a week. Would it not be confusing to measure “part-time basis” by a reduction in the number of hours worked? The commitment is to be available for service 24/7.

The Minister has stated that “part-time basis” would be of a different order to the existing forms of unpaid leave, but that is difficult to accept given the Minister’s examples of existing flexible working schemes and those in the fact sheets. Indeed, for clarity, a different definition of part-time service in Section 376 of the Armed Forces Act—definitions applying for purposes of the whole Act—would, I believe, be necessary if this subsection (2)(a)(ha) were ever inserted. Does the noble Earl agree?

Whatever the length and periods of absence, the noble Earl suggests that it is unlikely to involve much more than a thousand or two individuals at any one time. The noble Earl says:

“In practice, these new options will be temporary, limited to defined periods”.—[Official Report, 11/7/17; col. 1175.]


Surely this is so small scale; can this new scheme not be brigaded with other unpaid leave of absence arrangements? The Committee is familiar with the problems of unexpected consequences following enactments. Are there foreseen but undisclosed consequences for the Armed Forces Act which this Bill is to amend? The House has been assured that there is no intention to achieve savings in defence expenditure by this measure. Of course I accept that assurance, but it can only be for this Administration. The Armed Forces Act amended by this Bill will be renewed annually and re-enacted quinquennially into the foreseeable future. The Committee needs to be very satisfied that there is no devious hostage to fortune secreted in this Bill. To conclude on Amendment 1, leave is a well-understood and established arrangement for the Armed Forces, whether as a term for a holiday from work or a break from duties. Its meaning and purpose has been expanded to cover other types of absence, both paid and unpaid—even so-called gardening leave. Why complicate matters, and risk disparaging reactions and misleading reporting, by introducing a concept that suits working arrangements for civilian employment, with a working week of, say, 38 or 40 hours, but is alien to the fundamentally different concept of a commitment to 24/7 service? I expect that the noble Earl will try to justify the distinction that he seeks to draw between “part-time basis” and “unpaid leave”. A lot has already been said and written. I hope that other noble Lords will see merit in the “unpaid leave of absence” descriptor for this small addition to flexible serving arrangements and will speak in support of Amendment 1.

I turn to Amendment 2. When checking what was to replace Section 329(2)(i) of the Armed Forces Act, I found that this subsection in the Act provides for,

“enabling a person to restrict his service to service in a particular area”.

This Bill’s replacement submission provides for,

“enabling a person’s service with a regular force to be restricted”.

“To be restricted” to service in a particular area: why is this significant change being proposed? The original wording seemed to be in tune with assurances given at Second Reading which indicated that the flexible initiative lies with the individual, not the Ministry of Defence. I refer to my earlier comment about the risk of untoward outcomes from this legislation. The Committee should learn why the original phrasing has been replaced. Might it become a convenient handle with which to enforce reduced service or as a savings measure at some future date? I commend Amendment 2 to avoid this trap.

Amendment 3 proposes deleting the phrase,

“to be subject to other geographic restrictions”.

It has been suggested that this is to arrange for the individual not to be separated from their normal place of residence. Why cannot this be included in the meaning of the phrase “service in a particular area”? It seems an unnecessary complication. The purpose of this probing is to seek a fuller explanation of the proposed geographical restrictions. How would they assist individuals more easily to combine military and private commitments? Why are they not satisfactorily covered by the existing phrase,

“service in a particular area”,

which, as I suggested, could include location of family accommodation? I also note that the wording of Section 329(2)(j) says that a person may be required,

“to serve outside that area … not exceeding a prescribed maximum”,

but the replacement paragraph makes reference only to serving outside a “geographic restriction”, not a particular area. Why is the latter omitted by the Bill and said to differ from the former?

Finally, on Amendment 5, I questioned the use of the word “right” in new subsection (3A). The only reference to “right” in Section 329 of the Armed Forces Act is in subsection (3), which refers to,

“any right conferred … by … subsection (2)”,

which includes paragraphs (i) and (j), which this Bill seeks to replace. Why is it not satisfactory to rely on this overarching, less-deterministic phrase rather than introduce into Section 329 of the Armed Forces Act subsection (3A) with a specifically identified and explicit right applying to only three of 10 paragraphs in subsection (2)—a right that the noble Earl admits in his letter of 21 July is not absolute? Fact sheet 2 says that personnel will not have the right to work under the new flexible working arrangements. This amendment seeks an alternative approach to the matter of rights conferred while retaining the varied and other circumstances of new subsection (3A). I beg to move.

[Baroness Jolly (LD)]

My Lords, I shall speak to Amendment 14 in my name and that of my noble friend Lady Smith of Newnham, who, because of the Statement immediately after Questions, has got herself in the wrong place at the wrong time and has had to go into the Chamber. It is a very straightforward amendment. It asks for information to be provided by the Defence Council at least a year in advance to all members of the Armed Forces, giving them information about the scheme, how it will operate, how to apply and what alternative forms of flexible working are available.

[Lord Stirrup (CB)]

My Lords, when I spoke at Second Reading I indicated that I was supportive of the principle that the Bill seeks to enshrine. After all, who could argue against increased flexibility? But I did have a number of caveats and cautions. It seems crucial that whatever we do does not undermine the ethos that is essential to a successful fighting force. I raised a number of issues, not all of which have been dealt with to my satisfaction, but I set those to one side for the moment to focus in particular on Amendment 1.

At Second Reading, the noble Earl took me to task for using the term “flexible employment”. He pointed out to me that service personnel are not employees as such. He is of course quite right, although the waters are somewhat muddied when the MoD itself uses terms such as “new employment model”. Service men and women have always understood and accepted that they are liable to be called to duty at any time— 24 hours a day, seven days a week, 52 weeks a year. The Bill seeks to change that. In doing so, though, it introduces the term “part-time” and part-time is a concept which in the military has never been recognised for regular service. It implies something that is completely removed from the ethos that is essential to a fighting service.

We all know what the Bill is talking about. We all know that it does not intend to undermine that ethos. But we also know that Bills which become Acts can have unintended consequences, and this Bill has to be treated with a great degree of caution, in my view, because of the fundamental nature of the changes that it introduces. As the noble and gallant Lord, Lord Craig, has already pointed out, the use of such terms as part-time is anathema to the military. Why use such a term when much more appropriate terms are there, ready to be employed? I therefore support very strongly Amendment 1.

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Moved by

[Baroness Jolly]

4: Clause 1, page 1, line 14, at end insert—
“( ) After subsection (2) insert—“(2A) With regard to the rights conferred on a person by subsection (2)(ha) to (j), the regulations must specify—(a) whether and for how long a person must have served in a regular force before being entitled to apply for those rights;(b) to whom and in what manner a person must apply;(c) how many times a person may apply to exercise those rights;(d) whether there is any limit on the number of times a person may have an application approved;(e) for what specific periods of time a person will not be required for duty or liable for overseas deployment;(f) if the application is approved, for how long the agreed arrangements may remain in place;(g) the factors that may be taken in account when considering an application;(h) how the agreed arrangements may be altered or suspended; and(i) if an application is refused, how a person may appeal the decision.””

[Baroness Jolly]

My Lords, Amendment 4 is a probing amendment. I am very grateful to the Minister and his team for the meeting that we had—it seems a very long time ago—just before we rose for the Summer Recess. We went through these issues with him. As the noble Lord, Lord Ramsbotham, said, employment patterns are changing. The idea of joining the service man and boy—or perhaps it is girl and woman these days—seems very much a thing of the past, or at least not what is always expected. We want to understand exactly how this works and what the Government’s intentions are behind it—hence the probing nature of the amendment. We are after the what, the how, the how long and the how many.

The devil in this sort of thing is very often in the detail. We on this Bench have some concern that a lot of the detail will be in secondary legislation. I know that we will be dealing with that and I know that my noble friend Lady Smith will be dealing with those issues later. However, I would be grateful if the Minister would respond to these points—he has had the summer to look at them with his team—and then we will see how we can move forward from there.

[Lord Touhig]

My Lords, Amendment 6 in my name and that of my noble friend Lord Tunnicliffe relates to the powers conferred on the Defence Council by Clause 1. It is a simple but important amendment and it is one that has the full support of the House’s Delegated Powers and Regulatory Reform Committee. If I may, I will echo the comments made in the Chamber last week about the noble Baroness, Lady Fookes, who chaired the committee when it produced its report. We all wish her well and look forward to her speedy recovery and return to Parliament.

In its report on the Bill, the committee noted:

“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”.


The timing of the Bill, with the so-called repeal Bill and its many proposed delegated powers, which was approved in the other place in the early hours of this morning, is significant. We in this House always pay attention to the granting and use of delegated powers and it is only right that if additional powers are conferred on the Defence Council or on Ministers, a proper level of parliamentary scrutiny is guaranteed.

Following meetings and discussions with the Minister, it is my understanding that the Government intend to accept that view and will either agree to this amendment or table a similar one; we will wait for the Minister to tell us. The introduction of part-time working and reforms to geographically restricted service represent fundamental changes to the terms and conditions of our Armed Forces. By ensuring appropriate scrutiny of the forthcoming regulations, the House will be fulfilling its duty to our hardworking service men and women.

Perhaps I may say a brief word about Amendment 4. We certainly do not oppose the amendment moved by the noble Baroness, Lady Jolly, but much of the information it seeks is in the supporting documents that the Minister has provided. The key question that we want the Minister to answer is to assure us that this information will be put into regulations. If that is the Minister’s intention, it may not be necessary to put this provision into the Bill.

I do not know whether it is the intention of the noble Earl, Lord Attlee, to speak to his amendment, but I shall say a brief word about it because he and I discussed it last week. I agree with him that there are too many instances where legislation is passed and commencement never seems to occur. I certainly sympathise with him on that point. However, I believe that the Government have made it clear that they want this option to be available from 2019, and in those circumstances I wonder whether that might well suffice.

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Finally, I welcome the attempt by my noble friend Lord Attlee to ensure that flexible working for the Armed Forces does not slip from the agenda, which I take to be the purpose of his amendment. I wish to reassure my noble friend that our plans to introduce flexible working are firmly on the table. Indeed, they are an essential part of the Armed Forces people programme, which is designed to explore new ways of modernising the employment offer for our Armed Forces, better to allow defence to attract and retain the right mix of people and skills. We propose to implement the new flexible working arrangements in 2019, as I mentioned, and we have no plans to change that timescale. In view of the positions that I have outlined, I hope that my noble friend will agree that it is not necessary for the Bill to be amended. I hope, too, that following the assurances and information that I have provided the noble Baronesses and my noble friend will agree not to press their amendments.

[Baroness Jolly]

My Lords, I am happy to withdraw my amendment.

Amendment 4 withdrawn.

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Moved by

[Baroness Jolly]

7: Clause 1, page 1, line 17, at end insert—
“( ) After subsection (5) insert—“(5A) Within three years of paragraphs (ha) to (j) of subsection (2) coming into force, and annually thereafter, the Secretary of State must lay a report before each House of Parliament evaluating the impact of those paragraphs on recruitment and retention of members of the armed forces.(5B) The report must include—(a) an assessment of recruitment and retention of technical specialists in the armed forces;(b) a comparison of recruitment and retention between Her Majesty’s naval, military and air forces; and(c) a comparison of retention between those serving on a full-time basis and those serving on a part-time basis.””

[Baroness Jolly]

My Lords, this amendment is intended to look at the impact of the measures in the Bill on recruitment and retention, including on technical specialists across the forces. The amendment provides that, within three years of the new flexible working arrangements coming into effect, the Secretary of State must lay a report before Parliament evaluating the impact of the arrangements on recruitment and retention in the Armed Forces. The report must include an assessment and comparison of the recruitment and retention of technical specialists in the three Armed Forces—the Royal Navy, the Army and the RAF—and those serving on a full-time and part-time basis. Our intention is that “technical specialists” in proposed subsection (5B)(a) should also include those working in areas where specialist training or qualifications are required and which are significantly understaffed at present.

We hope that the Government might look at including these factors in a wider report on recruitment and retention in the Armed Forces. The Armed Forces continuous attitude survey and families continuous attitude survey go some way towards this but do not dig deeply enough into why morale is low and people are leaving. The top reason for leaving cited in the Armed Forces continuous attitude survey is impact on family and personal life. That is a broad statement and it is difficult to see how the Armed Forces or the Government can take effective action to address the issue. It needs to be broken down into factors such as hours, time away, impact of frequent moves, problems with military accommodation, spousal employment and other covenant issues.

Another issue that needs to be looked at is the impact of welfare and community services on retention. “Patch life” provided by such things as SSAFA, with well-funded facilities, clubs and community services, is a large pro for members staying in the Armed Forces as a family. Anecdotally, concerns have been raised with us that the prospect of this life disappearing in the face of cuts and the FAM is turning into a reason for leaving rather than staying.

Amendment 15, in my name and that of my noble friend Lady Smith of Newnham, seeks to find out how those who are working part time or restricted to a particular geographical location will be recorded in the PID or JPA. These exist only if the military has assessed that it needs the posts to carry out a capability. Therefore, any significant disparity between the number of posts and the target number of personnel in the military is statistical evidence that the Government are asking it to do more than it has the personnel to do, even if fully manned. There will also be more posts than personnel to allow for flex. However, we get the sense that the disparity is currently more than it has been historically, and more than it should be. In the context of this amendment, it is critical that part-time workers do not count as a full person in a post to avoid the disguise of manning shortfalls. What is the current number of PIDs/JPAs in the military? Can the Minister provide this figure broken down into the three forces? He might not be able to do that now but we would appreciate the figures as and when. I beg to move.

[Baroness Burt of Solihull]

My Lords, Amendment 8 is in my name and that of my noble friend Lady Jolly. This may be an appropriate moment to apologise to the Committee, rather than to the House, for my misuse of terminology. I also apologise to the noble and gallant Lord, Lord Craig. I have not been here a long time and I find this issue a bit confusing. I ask for noble Lords’ patience.

This amendment provides that, three years after the new arrangements come in, the Secretary of State will lay annually thereafter a report before Parliament evaluating the impact of diversity within the Armed Forces. By “diversity” we mean all protected characteristics. Diversity is about not just gender and race. In fact, the Act covers age, disability, gender assignment, marriage, civil partnership, pregnancy, maternity, race, religion, belief and sexual orientation. Although we have to be pragmatic in what realistically can be set before the House in parliamentary reports, I am trying to get to the spirit of this issue. Unless and until the Armed Forces are truly diverse, they will not make the best decisions to achieve their optimal effectiveness. Until everyone feels included, we will not have the team cohesiveness that the forces so prize, and which is so important to operational functionality in times of danger and stress.

It is also important to report on these characteristics by rank. The Minister pointed out in his letter over the summer that as the services are “base-fed” organisations, some of the improvements will take time to feed through. That is all the more reason why we should measure this as time goes on because what you do not measure you cannot change. As I understand it, the Bill lacks any mechanism to track future progress or lack of it. Therefore, we hope that the Minister will be sympathetic to this amendment.

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[Earl Howe]

My Lords, the introduction of new flexible working measures is designed to attract, recruit and retain people from a more diverse cross-section of society who have the knowledge, skills and experience that we need to deliver operational capability.

Currently, service personnel who have dedicated themselves to public service sometimes struggle to meet their full military commitment—for example, due to a short-term change in personal or family circumstances—and the only option in such circumstances has been to leave the Armed Forces. This represents a loss to the individual and to defence. New flexible working options aim to address this so that in such situations personal circumstances are no longer a barrier to continuing service. We believe that these measures will benefit a small but significant cohort; for example, women and men starting a family, those with caring commitments or those who wish to undertake long-term studies. Moreover, our evidence derived from external reports, comparison with other nations, internal surveys, focus groups and our ongoing flexible duties trial shows that providing our people with modern choices will help us retain highly skilled personnel who might otherwise leave and join organisations which provide these choices. In short, through these new measures we are aiming to modernise the terms of service for the Armed Forces with a view to improving recruitment and retention into the future.

Many other external factors, such as the economic climate, have the strongest influence on recruitment and retention and are likely to mask the impact of these new flexible working arrangements in the short to medium term, and we have to bear that point in mind. Defence is experiencing many of the same skills and recruitment challenges that are being faced nationally. To meet those challenges are proactively as possible, we are modernising the employment offer for our Armed Forces, as I have described. These collectively are being managed under the Armed Forces people programme, which comprises projects including the new joiner offer and enterprise approach. The new joiner offer should support and improve retention by developing a new, more modern and more relevant offer for new joiners that better supports service personnel throughout their career. We also aim to improve retention by better management of critical skills across defence through the enterprise approach project. Changes to enable members of the Armed Forces to work more flexibly originate from the flexible engagement systems project, which forms a further part of the people programme.

These amendments seek to place various obligations on defence to publish reports on the effects of flexible working on the Armed Forces. I am sure the Committee is aware that intake, outflow and strength by rank, trade and specialisation are monitored and managed on a regular basis at service level and centrally by the MoD. The MoD already publishes detailed information and analysis in the UK Armed Forces Monthly Service Personnel Statistics. This publication provides statistics on the number of service personnel by strength, intake and outflow in the UK Armed Forces, and detail is provided for both the full-time Armed Forces and reserves. We carefully monitor information on trade, specialisation and sub-specialisation by rank and service, and routinely release on a regular basis, as part of official statistics publications, a wide range of information on outflow from the UK Armed Forces.

We also publish comprehensive data in the UK Armed Forces Biannual Diversity Statistics. This statistical release presents information relating to the gender, ethnicity, nationality, religion and age of personnel employed by the MoD and meets the department’s obligations under the public sector equality duty to provide information on its workforce in relation to the protected characteristics identified by the Equality Act 2010. Information on numbers of personnel undertaking and returning from maternity and shared parental leave is also provided as part of this publication.

It is important to highlight the evidence from trials and surveys commissioned by the Armed Forces, which indicates that take-up for options that enable service personnel to work more flexibly is likely to be low in the early years of implementation. Furthermore, while the MoD promotes the importance of the Armed Forces being appropriately representative of the diverse society they exist to defend, with operational effectiveness being dependent on inclusion and fairness, we estimate that the overall numbers taking up the new opportunities will be small to begin with. Therefore, assessing any correlative impact that flexible working has on increasing diversity in the Armed Forces is likely to be difficult, particularly in the early stages. This will mean that any detailed evaluation of the impact of flexible working measures on overall recruitment and retention rates, skills retention and outflow, and diversity in the Armed Forces will be difficult to achieve in the early years of operation.

The recording requirements for any pattern of work for our Armed Forces are stipulated in policies and recorded on the joint personnel administration system—JPA. JPA is already used to process applications for existing flexible working options. There is planning in place to enable all instances of part-time working or geographical restriction by personnel to be recorded on JPA when these options are made available. It will be crucial to ensure that all cases of flexible working are properly recorded and monitored to provide personnel and commanding officers with a record of all discussions and agreements. However, since it is estimated that the number of applications is likely to be low in the early stages, collating and reporting information on a monthly basis to provide figures on the number of personnel undertaking flexible working as a proportion of the total of full-time serving members of the Regular Forces would not provide significant or beneficial data.

It is important to emphasise again that the new arrangements are aimed at improving recruitment and retention in the long term, as part of a series of projects being delivered through the Armed Forces people programme. The long-term effects of these collective initiatives should be the measure of how effective the new arrangements are, rather than short-term reporting and figures on take-up.

We judge that formal annual reporting for a small cohort would not add value or provide a real sense of the impact of introducing these new opportunities. However, my department recognises the importance of keeping the delivery and effect of these changes under continuous review, in terms of both the benefits to personnel and the impact on operational capability. We will closely monitor the rates of uptake for new flexible working options by service, rank and specialism and will carefully examine any long-term trends and links to overall retention rates and diversity.

As noble Lords will be aware, the Secretary of State is required to lay an annual report before Parliament each year outlining the Government’s progress in delivering the Armed Forces covenant. The introduction of the new flexible working opportunities falls within the scope of the covenant and we envisage that the introduction of these measures in 2019 will be monitored during the first year of implementation and will be reported on in the covenant annual report and yearly thereafter.

The noble Baroness, Lady Jolly, asked about FAMCAS and AFCAS and drilled down with some further questions. I will write to her on the questions that she asked. I will need to consult the department to understand what further information it would be possible or practical to provide her with, but what information we do have I will be happy to give her. She also asked how flexible working could be introduced within a fixed headcount. The simple answer is that 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 can otherwise be resourced through other means such as the employment of reserves. Like other organisations with part-time workers, the organisation will change over time to better accommodate flexible working.

I do not believe that it is necessary for the Bill to be amended in this way. I understand that these are largely probing amendments and I hope that the explanations and information I have given to the Committee will be helpful to noble Lords and that they will not press their amendments.

[Baroness Jolly]

My Lords, I am happy to withdraw Amendment 7.

Amendment 7 withdrawn.