Armed Forces Commissioner Bill

Baroness Kramer Excerpts

Wednesday 30th April 2025 Lords Chamber

[Baroness Carberry of Muswell Hill (Lab)]

My Lords, I commend the noble Baroness, Lady Goldie, on her tenacious championing of the interests of Armed Forces personnel. I know that that commitment long predates my arrival in this House, so I step with some trepidation on to the noble Baroness’s territory. But, together with my noble friend Lord Beamish, I hope she can explain and help us to understand better what the proposal in the two amendments adds to the powers that the Bill already gives to the new commissioner.

I have been trying to approach this question from the point of view of the ordinary member of the Armed Forces who, as it is, is faced with different channels to take concerns through. When the Armed Forces commissioner is in place, there will be yet another channel, and it is unclear to me, if I were put in that position, when I would consider myself to be someone who was availing themselves of the existing channels and when I might consider myself to be a whistleblower, and what the difference would be.

I confess that I am not totally clear about the array of routes that someone in that situation might be able to take, and I wonder how the average member of Armed Forces personnel already navigates their way through the possible routes. As I understand it, the existing channels—forgive me if I have got this wrong—include the Ministry of Defence complaints procedure, a facility whereby people can report serious matters confidentially and, in some cases, anonymously; so that is similar to being a whistleblower. Another route appears to be the MoD’s serious concerns reporting facility: another confidential mechanism for raising serious concerns, which can be done online, on the phone or through an app. There also appear to be internal MoD policies that are already committed to protecting whistleblowers from retaliation or other detriments. The support available to people includes nominated officers outside the chain of command and a confidential hotline team.

On top of that, as the noble Baroness, Lady Goldie, referred to in her introduction, there is the reformed complaints system, which will introduce a new specialist tri-service team for taking the most serious complaints—which will include bullying, discrimination and harassment —outside the single service chain of command. As I understand it, that has been welcomed by the family of Gunner Jaysley Beck, who always remains in our thoughts when we are discussing these matters. A spokesman for the family said that those running the new system need to be truly independent, properly trained and committed to real accountability and transparency. I suggest that those are all our aspirations for the new Armed Forces commissioner.

On top of the channels that I have already mentioned will be added the Armed Forces commissioner. Will the noble Baroness take the opportunity to explain to us again, so that we better understand it, what adding a whistleblowing facility to what already exists would achieve? I also invite my noble friend the Minister to give us further assurance that anyone who in future has recourse to the services of the Armed Forces commissioner will be able to do so anonymously, in the same way that anyone designated as a whistleblower under any other system would be able to do. If the Minister could give us that reassurance, that might go a long way towards meeting the concerns the noble Baroness outlined in moving the amendment.

[Baroness Kramer (LD)]

My Lords, I apologise for not taking part in the Bill earlier. As the House will know, this is not my usual territory, but I am grateful to the noble Baroness, Lady Goldie, and my noble friend Lady Smith of Newnham for drawing my attention to the whistleblowing issue in it. I very much support the amendments in the names of the noble Baroness, Lady Goldie, and the noble Earl, Lord Minto, which would add a whistleblowing function to the Bill and to the role of the commissioner.

Amendment 3 seeks to make it clear that someone who speaks out on the issues covered in the Bill—essentially, welfare issues—can take their concerns directly to the commissioner regardless of the service they are attached to, and will have the status of a whistleblower, with the respect and protections that come with that role, as established under our current whistleblowing law, the Public Interest Disclosure Act 1998, which include confidentiality. The commissioner will then be empowered to investigate again if the issues meet the criteria set out in the Bill—and investigation, as any survey of whistleblowers will tell you, is more important to those who speak out than even protection.

There is a distinction between someone who makes a complaint and someone who chooses to blow the whistle. A complainant is looking for very specific redress and quite rightly—there is nothing wrong with that; it is entirely appropriate—but a whistleblower, as we know from whistleblowers generally, is someone who has realised, recognised or seen the potential for something going seriously wrong. They are not looking for personal redress; they are raising the issue in order to achieve investigation. The commissioner can then make that decision, but that is a very different process and a very different aspect from making a complaint about an experience that you or a family member directly had. You may end up complaining and whistleblowing, but whistleblowing has to be recognised as a tool which directs investigators.

I spent part of this morning with the director of the Serious Fraud Office, who underscored the fact to an all-party parliamentary group that when you are an investigator, knowing where to investigate requires a flow of information. He said that the biggest help Parliament could give the Serious Fraud Office would be to empower whistleblowers, because that is where he finds the information and the direction that guide the investigation he needs to do. It seems to me that that applies just as much in the armed services—even if it is under the limited welfare umbrella—as it does anywhere else.

I will concede that the current whistleblowing law which frames whistleblower protections, the Public Interest Disclosure Act, is deficient and many of us are seeking to upgrade or replace it. But it is all we have today and at the very least, its protections should extend to the armed services. The Government have responded that they can simply put the protections into their policy document. Why does anybody think a policy document is legal protection? The Government also suggested, as the noble Baroness, Lady Goldie, mentioned, that they could introduce an anonymity clause for the reports the commissioners publish, but I cannot see that anything in this amendment rules that out.

I could suggest further changes within the scope of the Bill to enable a whistleblowing process for the Armed Forces, but I think we have something very powerful in front of us today. The Bill creates something really exceptional and valuable—a truly independent commissioner whose future career does not depend on any of the armed services or on the Civil Service. He or she in that role has the potential to be a real game-changer when it comes to speaking out.

Again, if what we had in place was perfectly adequate, would we have had that report today from BBC Wiltshire of three more members of the armed services coming forward with the most extraordinary and shocking experiences? We have to recognise that what we have in place is not achieving what we want it to. That is why this amendment and the change it proposes is so important.

As we get legislative improvements—in this area and in other areas—for whistleblowing, protections will be more effective. We will avoid not just the scandals we have seen within the services but those in other areas—for example, the Post Office. We have a real chance, then, that wrongdoing can be tackled. If we want to enhance the morale of the armed services, show people that they are genuinely valued and encourage recruitment into the services, we can make it clear that there is a simple channel to a trusted individual—someone people can go to with a whistleblowing issue, not necessarily a personal complaint. There are few things that would do more to encourage people to hold our services in the very high regard that service members deserve than to provide someone with investigatory powers who is aware of the situation and has the detail and background to allow an investigation.

--- Later in debate ---

[Lord Coaker (Lab)]

There is not. My noble friend is quite right to point that out.

The term whistleblower is not a universally recognised term in law. That may be irrelevant to us in considering the debate, but it is of relevance to us as a legislature. There is some limited precedence for its use, there is no single meaning, and it requires additional context to explain what the term means in each case. The amendment seeks to define the term in reference to certain people and topics, but it would not create any additional protections for those people, because, as I have said, the commissioner can already investigate everything that the amendment lists—as my noble friend Lord Beamish has pointed this out—whether it involves a whistleblowing-type situation to expose a general service issue or a personal issue that somebody wants to raise individually. The commissioner can already investigate any general service welfare matters that they choose. Anyone can raise such an issue with the commissioner, including the class of person defined in the amendments.

Once established, the Armed Forces commissioner and their office will automatically be bound by data protection legislation. This means that, for all individuals who contact the commissioner, the information and details they provide will be subject to stringent protections under the existing legislation. That includes the principle of protecting the integrity and confidentiality of their personal data.

None the less, as noble Lords know, to try to address the continuing concerns, the Government considered what more they might do. In considering this amendment, noble Lords should remember that the holy grail of all this is anonymity. People will not have trust and confidence in a system if they do not believe that, if they wish it, there is anonymity; they will be frightened of the consequences, whether of whistleblowing or of raising an issue on a personal level.

We are looking at this and, in addition to the substantial protections afforded by data protection legislation, we undertake to bring forward an amendment at Third Reading that would go further in respect of reports prepared by the commissioner to preserve the anonymity of individuals who make complaints. This will prevent a complainant’s details coming into the hands of the Secretary of State or the general public without the consent of the complainant, but it will not interfere with the commissioner’s ability to use the information in connection with an investigation. In other words, the Government have conceded that anonymity is an issue and commit to bringing forward an amendment at Third Reading that will put that in the Bill, to ensure that anonymity is protected in legislation.

I say again, because it is so important, that trust and confidence are everything. Who will come forward—whatever the legislation says—without trust and confidence in that system? At the heart of that is anonymity. That is the legislative proposal that we are seeking to bring forward at Third Reading, should we be in a position procedurally to do so.

There is a further issue that is not legislative— I think the noble Baroness, Lady Goldie, raised it. The Government commit to update our current “raising a concern” policy, which includes replicating the protections available to civilians under the Public Interest Disclosure Act 1998. This update will outline the role of the commissioner and ensure that similar protections for people under this policy are applied to disclosures made to the commissioner. This will include provisions relating to anonymity and confidentiality, ensuring that anyone who raises a genuine concern in line with the policy will be protected from unfair or negative treatment due to raising the concern.

[Baroness Kramer (LD)]

I ask the Minister for clarification. All those things will be in a policy document, as I understand it. Can he explain to me the legal standing of a policy document? That would be so helpful.