Armed Forces (Flexible Working) Bill [HL]

Baroness Smith of Newnham Excerpts

Report stage (Hansard): House of Lords
Wednesday 11th October 2017 Lords Chamber

[Lord Touhig (Lab)]

My Lords, Amendments 1, 2, 4 and 10 will, if agreed, mean that regulations made necessary by the passing of this Bill will be subject to the affirmative procedure. It was a point well debated in Committee, and I do not need to rehearse those arguments again at length. It is worth pointing out, however, that the Delegated Powers and Regulatory Reform Committee, following its consideration of the Bill, stated:

“The Bill will confer novel and broad powers on the Defence Council to make provision for part-time service … 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, and that this is so despite the fact regulations under section 329 of the Armed Forces Act 2006 are generally subject to the negative procedure”.


I believe that there is agreement across the House that the Government should heed the committee’s recommendation. I thank the Minister for his willingness to engage in discussions, both in Committee and outside, on this matter and for his undertaking that the Government are listening to the comments that are being made.

This Bill introduces provisions enabling the Defence Council to make regulations regarding part-time working and the new forms of geographically restricted service. The Defence Council will also be able to make regulations setting out the circumstances in which agreements can be varied, suspended or terminated. The provision in the Armed Forces Act 2006 that governs the parliamentary procedure to which regulations are subject is Section 373. At present, any regulations made under Section 329 are subject to the negative procedure. However, our amendments will ensure that any regulations made under the new sections to be inserted by this Bill will be subject to the affirmative procedure. Section 373(3) sets out which regulations made under the 2006 Act are subject to the affirmative procedure, and the amendment inserts reference to regulations under the Bill into that list. The amendments also amend the wording of Clause 3(6) of the Bill to reflect the fact that Clause 1 now amends two sections of the Armed Forces Act 2006 and not just one. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I rise to speak to the amendments, particularly to Amendment 8 in my name and that of my noble friend Lady Jolly. My comments will be very much in line with the words of the noble Lord, Lord Touhig. In Committee, the Minister said:

“I am not in a position today to give any undertakings on the substance of this issue, but I undertake to reflect further on the matter in a constructive way ahead of Report”.—[Official Report, 12/9/17; col. GC 85]


If constructive reflection has occurred, it has not been visible in the form of any government amendment. Could the Minister explain to the House why no government amendment has been forthcoming and, in the absence of that, why noble Lords should not accept either the amendments of the noble Lord, Lord Touhig, or that of my noble friend Lady Jolly?

[Earl Attlee (Con)]

My Lords, to answer the noble Baroness, I suspect we are going to find out very shortly.

An essential characteristic of any good parliamentarian is curiosity, so I can understand why many noble Lords would like to debate the first relevant new Defence Council Instructions before they are implemented. However, in the future it may become apparent that it would be appropriate to make a slight amendment to the regulations concerning flexible working in order to make them work better, be fairer to service personnel or for some other desirable reason. Unfortunately, no such amendment is likely to be made unless it is absolutely essential. The reason is that, thanks to these amendments, an affirmative order will be needed and the MoD will simply not bother with it—it is just too much trouble, unless it is absolutely essential.

Why, then, is my noble friend likely to acquiesce to these amendments? The answer is that he will have told his officials that they have only one shot and they must get the regulations right first time. In short, my noble friend probably thinks that no amendments to the regulations will be needed for a long time, so it does not really matter. Unfortunately, these amendments would make the parliamentary scrutiny of Section 329 of the Armed Forces Act entirely inconsistent, as recognised by your Lordships’ DPRRC’s first report. The fact that a power is novel—in other words, innovative and broad—does not necessarily mean that it should attract the affirmative procedure; what really matters is if there was likely to be any difficulty with it.

The Bill and the subsequent regulations under Section 329 provide flexibility for service personnel, and that can only be positive for them as it will enable certain of them to continue to serve when otherwise they would have to consider leaving the services. However, any of these regulations under the Bill will attract the affirmative procedure.

Contrast the flexible working provisions that we are talking about with, for instance, Section 329(2)(d), which I suspect enables Defence Council regulations to impose golden handcuffs on a service person in exchange for attending a desirable course. For instance, if a soldier has completed his minimum term of service, he or she might want to be considered for training as a helicopter pilot. Quite understandably, the MoD would want to prevent that new pilot from leaving for civvy street immediately after qualification—hence the need for the golden handcuffs. But what if the MoD is experiencing a shortage of helicopter pilots? As far as I can see, the Defence Council could retrospectively increase the period for the golden handcuffs. However, these regulations, which could be very tough, are made under the negative procedure.

If we accept these amendments—as I expect we will—not only will we make the parliamentary scrutiny of Section 329 of the Armed Forces Act entirely inconsistent but we will be getting ourselves deep into the weeds. Apparently, the MoD is considering whether two landing platform docks should be taken out of service, while your Lordships want to look at the minutiae of flexible working for a few service personnel. If we can trust Ministers and the Defence Council to make really difficult strategic or operational decisions, sometimes on a very short timescale, I think that we can safely allow them to amend the original flexible working regulations on their own.

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Moved by

[Baroness Smith of Newnham]

9: After Clause 1, insert the following new Clause—
“Accommodation
After section 329 of the Armed Forces Act 2006 insert—“329A Accommodation(1) A person to whom section 329(2)(ha) applies is entitled to service family accommodation or single living accommodation.(2) Six months after section 329(2)(ha) comes into effect, and every three years thereafter, the Secretary of State must lay a report before both Houses evaluating the impact of that section on family accommodation and single living accommodation, and providing information on future accommodation needs in the light of trends of serving on a part-time basis.””

[Baroness Smith of Newnham]

My Lords, this amendment, too, replicates an amendment that was brought in Committee and refers to an issue that is fundamental to recruitment, retention and forces’ welfare, as well as the welfare of forces families: accommodation. In his response in Committee the Minister suggested that the numbers of people who might avail themselves of the opportunity to work part-time under the arrangements of the Bill would perhaps be sufficiently limited that they would not impact on forces accommodation. The idea was welcomed that all members of Her Majesty’s forces, whether full-time or part-time, if they are regulars, would be entitled to the same accommodation provisions.

However, if more people are acquired because some people work part-time, so that you might have three people instead of two people doing the job, each of those individuals would be entitled to accommodation, and at some point this might have an impact on the requirement for accommodation as a whole. Clearly, as the Minister stated in the discussion on Amendment 7, there may be cases where this will be overcome by Help to Buy and through the new employment model. However, to the extent that this is not the case, it is hugely important for service men and women and their families to believe that Her Majesty’s Government will provide adequate accommodation for them.

For that reason, we have again tabled an amendment on accommodation, both to restate that service men and women who avail themselves of this flexible model are entitled to appropriate family accommodation or single-living accommodation, and, perhaps more importantly in the longer term, to have certainty that the Government are reviewing what forces accommodation is available and whether it will be suitable for the number of service men and women we have.

One of the key things is what is available and habitable and the extent to which the accommodation, and the maintenance contracts which deal with it, are fit for purpose. We have been told on various occasions that CarillionAmey now meets its key performance indicators, yet there are still many complaints. If it meets its key performance indicators, does that mean that they are not the right ones? While this might not be the appropriate amendment to bring that forward, it would be welcome if the Minister could at least explain when we might be able to discuss such things.

[Lord Touhig]

My Lords, I am grateful to the noble Baronesses, Lady Smith and Lady Jolly, for tabling a further amendment on service accommodation. As the noble Baroness, Lady Smith, noted in Committee, there are already significant pressures on service accommodation, and that is before we even begin to consider the move to the future accommodation model from 2019.

I will not go into the detail about our concerns on the future accommodation model, but clearly there are urgent questions for the Government to answer on how the Bill will affect personnel who rely on service accommodation, particularly when the system is shaken up. There will also be more questions for the Government to answer in the future as the new system is rolled out. I am therefore glad to see the addition of the second part of Amendment 9, which would require the Secretary of State not only to provide a periodic snapshot but to be proactive in anticipating future accommodation needs. I hope that the Minister will provide us with some answers—perhaps in a further round of letters before Third Reading—and offer a firm commitment; it is important that these things are reported back to Parliament.

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I am very willing to have a meeting with the noble Baroness to discuss repairs and maintenance of the defence estate, which falls slightly outside the scope of her amendment, but I hope that, for the purposes of the amendment, she has been reassured by what I have been able to say today and that she will agree to withdraw it.

[Baroness Smith of Newnham]

I thank the Minister for his very full reply. It would be nice to think that Her Majesty’s Government as a whole and, in particular, the Chancellor of the Exchequer will ensure that the money put aside for defence will enable all those words to be brought about in practice and that we do not need to worry about the money that will be put aside for accommodation. In the light of the discussion about the future accommodation model, the idea that proposals will come forward later in the year and the suggestion of putting questions into the Armed Forces covenant report, I am content to withdraw the amendment. However, I should very much like to take the Minister up on his suggestion of a meeting.

Amendment 9 withdrawn.

Armed Forces (Flexible Working) Bill [HL]

Baroness Smith of Newnham Excerpts

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

[Earl Attlee (Con)]

My Lords, I am grateful for the noble Lord’s forbearance with my amendment. I have some slightly difficult personal circumstances which mean that I have not been able to prepare quite as well as I would like, and therefore I shall not speak to my Amendment 18.

If these two proposed new subsections to affect the main clauses in the Bill were part of the wider quinquennial Armed Forces Bill, would we look at them in such great detail? I think that if we are honest, we would say probably not. I can understand the thinking of the Delegated Powers and Regulatory Reform Committee in recommending the affirmative procedure. The committee rightly recognises that your Lordships will want to look closely at the detail. However, as drafted I believe that even the most minor amendment in the future would have to be debated by both Houses, and I am not convinced that that would be a good use of parliamentary time. Worse still, a situation may arise where some minor change is desirable but the change is delayed, or even worse not made at all, because of the effort required. Noble Lords should be aware that putting an affirmative order through Parliament is not an exercise in rubber stamping; it is a complicated process. Would it not be better to use the affirmative procedure for the first set of regulations and then revert to the negative procedure for subsequent amendments? I wonder whether the noble Lord would like to consider that.

[Baroness Smith of Newnham (LD)]

My Lords, I shall speak to Amendment 18 tabled in my name and to Amendment 6 which is tabled in the name of the noble Lord, Lord Touhig. The amendments are similar. In contrast to the noble Earl, Lord Attlee, we believe that it is important that Parliament should play its full role in legislation. If the Defence Council is to have new powers conferred on it, it would be appropriate to make an affirmative decision rather than use a negative instrument. The noble Lord, Lord Touhig, took the words out of my mouth. I was in this Room last week taking part in a debate about reporting on the process of Brexit. The issues being discussed included questions about the role that Parliament plays in that. The Henry VIII clauses which are in the EU withdrawal Bill cover a bigger set of issues, but the noble Earl, Lord Attlee, has asked, “If these clauses were part of a bigger Bill, would we be bothered about them?”. Perhaps not, but that is not the point. At the moment there seems to be a tendency on the part of Her Majesty’s Government to say, “If the Government have an idea, it should be accepted without any amendment or scrutiny”. It is important that your Lordships’ House and Parliament as a whole play their part in scrutinising legislation, and it is right that this should be done through the affirmative procedure.

On reports, the noble Lord, Lord Touhig, reminded us that there now is information; I am grateful to the Minister for ensuring over the summer that further information was provided regarding the sort of questions we were looking for. As my noble friend Lady Jolly said, Amendment 4 was a probing amendment, but obviously, the more information that can be given and made available to people and the more detail we have, the greater the opportunity for this to be successful.

[Lord Touhig]

Perhaps I may comment on the point made by the noble Earl, Lord Attlee. His suggestion would not be the right way. He discussed it with me last week. The Bill substantially depends on regulations to bring in its measures, and how would one decide what we would bring in the first tranche and the second tranche, and so on? Therefore everything that relates to this matter should be subject to the affirmative procedure.

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[Earl Attlee]

My Lords, in those halcyon days when I was an Opposition Front Bench spokesman, I would have been proud to have tabled any of these amendments, something I did many times. I leave it to the Minister to say whether they are a good idea, but I draw the Committee’s attention to Amendment 15, which has not yet been spoken to, although it is in the grouping.

We need to know how many servicemen are taking advantage of these provisions, because otherwise the stats on the strength of the Armed Forces are to an extent meaningless. Perhaps the frequency of the report is too great but I would like some reassurance from the Minister that we will know, from time to time, how many members of the Armed Forces take up flexible working.

[Baroness Smith of Newnham]

My Lords, I will also speak briefly to Amendment 15. Picking up on the points made by the noble Earl, Lord Attlee, it is hugely important that we have clarity on what percentage of our Armed Forces are working full-time and what percentage part-time. At Second Reading the noble Lord, Lord Touhig, frequently asked whether this was a cost-saving measure. While we listened respectfully to the Minister and understand that it is not a cost-saving exercise, the question is whether, if a significant number of our Armed Forces are working on a part-time basis, there may be a cost saving, but equally a loss in capability. Having this basic information will be important in giving us a sense of whether we are up to full strength. If there were significant numbers of people working part-time, would there be a necessity to create new part-time or full-time posts equivalent to the time that they are not working—up to 40%?

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[Baroness Smith of Newnham]

My Lords, I shall speak to Amendment 13 on accommodation. As the noble Lord, Lord Touhig, mentioned, this is an important issue. We have had some indications that those service men and women who avail themselves of flexible working will not be adversely affected, but there is already pressure on service accommodation, in particular a lack of single living accommodation. Moreover, we are looking at new accommodation through the future accommodation model. The question I have for the Minister is this: to what extent has planning been made to ensure that there will be sufficient accommodation for part-time service men and women? If the overall number of personnel remains unchanged, clearly the pressures will not change from what they are now. However, if there is a need for more personnel because some people are working part-time, has consideration been given to providing additional accommodation to ensure that those who work part-time will have the access to service accommodation that they have been promised?

If it is the case that there are more personnel in total because some people are working part-time, that would suggest the need for additional service accommodation. Not only would this not be a saving, there could potentially be a cost in this. Is the Ministry of Defence willing to consider additional accommodation being made available and meeting the costs that that might entail? If not, how does it envisage squaring the circle?

[Baroness Burt of Solihull]

My Lords, I wish to speak to Amendment 16 tabled in my name and that of my noble friend Lady Jolly. Before doing so, however, I want to make a comment about Amendment 9 tabled in the name of the noble Lord, Lord Touhig. It seeks to protect the full-time equivalent level of remuneration for regulars. As the noble Lord has pointed out, there are components to this such as universal payments, basic pay and the x-factor, which until recently I thought was something else entirely, but I shall not go into that. The idea is to protect against any reduction in pay being slipped in for individuals who will be affected by this Bill. But since we are not changing the classification of a regular, these components will not change, including the 14% which is the current x-factor payment. It will remain throughout the term of an individual’s employment. My view is that this should be a matter for concern and we would appreciate an assurance from the Minister that that indeed will be the case.

I turn to Amendment 16, which ensures that a person can be promoted regardless of whether they work part-time. We would welcome a reassurance from the Minister that the new arrangements will not affect someone’s career progression. The situation is complicated and not necessarily what people outside the Armed Forces might imagine. As I understand it, the current performance appraisal, postings and promotion system is not based primarily on competence. It relies heavily on direct comparisons being made with immediate peers in a unit. A tick-box system is used whereby someone has to have done certain jobs in order to get the next job. In that way, an individual can score enough to go before a promotion board. Under the current system, anyone working part-time will inevitably be penalised, particularly if they are on geographical restriction as one. They are unlikely to do all the posts they need to do to remain in the promotion thread, and they may not score as well in direct comparison with peers. If the Government accept the premise that promotion should not be affected by using the flexible employment scheme, does the Minister also accept that the appraisals-posting promotion structure really could do with a massive overhaul?

Armed Forces (Flexible Working) Bill [HL]

Baroness Smith of Newnham Excerpts

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

[Baroness Smith of Newnham (LD)]

My Lords, like most noble and noble and gallant Lords who have spoken this afternoon, I welcome the Bill, but with a degree of caution. I have a few more questions to add to the myriad that the Minister already faces. I, and the Liberal Democrat Benches as a whole, are less sceptical about the proposals than the noble Lord, Lord Touhig, but we have some concerns, and we might even agree with him on at least one point.

The Bill is intended to assist with recruitment and retention, and may help in particular with the recruitment and retention of women. As several noble and gallant Lords have pointed out, the devil is in the detail—or, at least, the devil would be in the detail if we could find any detail. At the moment, we are still waiting. The issues in the Bill are potentially profound. They may be extremely beneficial to those people who are able to use flexible working, but they raise concerns for all the services, and for those members of the Armed Forces who are not making use of flexible working. That is something that I want to come back to with regard to the impact on morale of those still doing their normal hours. Will they face further constraints and difficulties?

We have a set of issues about morale, particularly those raised by the regular Armed Forces Continuous Attitude Survey results from 2017. While family life and work/life balance may be important, other factors are also important—most notably, accommodation. As several other noble Lords have sought the indulgence of the House to raise other issues, such as mental health, families and counselling services, I crave the House’s indulgence for a moment to ask the Minister what work the Government are doing to deal with one of the biggest issues that affects service families—the nature of accommodation and, in particular, the maintenance of service accommodation. There are still regular complaints and a very serious sense that CarillionAmey does not deliver. One issue is that its contract is not sufficiently well specified. But if you have cold water instead of hot water or a cooker that does not function, there are real questions about how quickly it will respond. What scope is there through this Bill—although it will probably not be through this Bill—or through the course of this Parliament to look at ways in which to enhance service accommodation? That is one issue that affects family life in the services and, by extension therefore, morale, and potential questions of retention.

Accommodation is one issue, but pensions is another and pay is another. There is a range of issues that need to be dealt with. This Bill deals with a very small aspect of morale—the issue of flexible working. One question that I would like the Minister to address, which has come up and on which, although I hate to suggest it, there is a degree of confusion on some Benches, is about the elision there seems to be between part-time and flexible working. My understanding is that those two things are distinct and that flexible working would not necessarily entail a reduction in pay. Part-time work would, as it would in any walk of life, but engaging in a degree of flexible working, which could entail home working or flexible hours, would not in and of itself necessarily entail a pay cut. If the Minister could clarify that, it might be helpful to the progress of the Bill.

There are clearly questions of recruitment and retention. These proposals—assuming that the detail is appropriate—may assist with retention. Serving men and women may at the margins think that the ability to undertake flexible hours or to take leave to deal with caring responsibilities would help them to make the decision to remain rather than leave the services. That clearly could be beneficial to the individuals and the services, as well as to the UK as a whole, if we are not losing skilled people.

My noble friend Lady Jolly raised the question of information. How do serving men and women find out about this? The Armed Forces Continuous Attitude Survey suggests that only about one-quarter of servicemen and women actually think that leading officers give them adequate information. That has been one of the problems with the new employment model: there is a feeling among service men and women that they do not necessarily understand the detail. What is going to be different about this flexible working Bill? How are service men and women going to find out about the provisions? Are they going to have some general information? How far are we going to get into the details with them of whether there is going to be a cap on the number of service men and women who will be allowed flexible working at any one time?

The positive side is retention of people who may be looking for flexible working, but what about full-time regulars who may have to take on an additional burden if some of their colleagues are no longer available for deployment outside a particular geographical area or for a certain amount of time? That could give opportunities for reservists to be called up, as the Minister suggested, but it also raises questions about people who are still doing full-time work. I have had feedback which suggests that full-timers may then feel under additional pressure. If that is the case, what impact will it have on their retention rates? Have the Government undertaken any work into the impact on retention for full-timers?

I will look next at recruitment. Some work done by PricewaterhouseCoopers on public opinion suggests that there are very high levels of trust in the Armed Forces, right across the spectrum, but younger people are slightly less prone to trust them. About 80% of respondents thought that the Armed Forces are important for jobs, skills and training. Once again, as with trust in the Armed Forces, fewer young people are aware of the skills and training available. What are the Government doing to make recruitment more attractive; to enable young people—particularly young women—to understand the potential opportunities? I will correct something that the noble Earl, Lord Attlee, touched on. He seemed to imply that my noble friend Lady Burt had suggested that we could let in women or other people who did not meet the appropriate physical standards. What my noble friend actually said was that, as the nature of warfare changes, so the variety of skills and talent may change. For example, for cyberwarfare you do not need the physical attributes of a Royal Marine. There may be people from all sorts of backgrounds who would never have dreamed of joining the Armed Forces. They are not necessarily opposed to the Armed Forces or disagree with them—they are not pacifists—but they would never want to do some of the physical things. They are so computer savvy that they would be brilliant recruits, but they are not about to go along to the local recruitment office. What are the Government doing about a wider approach to recruitment?

Many questions have already been raised and I do not want to reiterate them. We clearly need to think about manning levels generally and ensuring that flexible working does not damage operational capabilities. I assume that Her Majesty’s Government have looked into this and believe that the proposals being put forward will not create any problems for operational capabilities. The Minister certainly suggested that they are evidence-based, yet they have raised several concerns. Can the Minister reassure the House that they are not aimed at cost saving; that manning and deployment proposals have been thought through; and that the high-level support for flexible working will be there through the ranks? Like the noble Lord, Lord Touhig, the Liberal Democrat Benches would like to see regulations subject to affirmative rather than negative procedures. It is important that this House and the other place can actually see what is being proposed. We would also like to know how the military regulations are promulgated and scrutinised, as was touched on earlier.

In conclusion, these Benches give the proposals a cautious welcome. My noble friend Lady Burt said, in effect: “What’s not to like”. There is very little in here to disagree with, but we clearly need to be very careful to ensure that the proposals are fit for purpose. We therefore look forward to the clarifications that the Minister will give this evening. We look forward even more to elaboration in Committee on the many questions that have come up this evening.