Armed Forces (Flexible Working) Bill [HL]

Earl Howe Excerpts

3rd reading (Hansard): House of Lords
Wednesday 25th October 2017 Lords Chamber

Moved by

[Earl Howe]

That the Bill do now pass.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, in moving that the Bill do now pass, I express my appreciation to all noble Lords, noble and gallant Lords and right reverend Prelates for their interest in the Bill and for their thoughtful contributions to what have been constructive debates during its passage through your Lordships’ House. I am grateful for the positive engagement and support of noble Lords on the Opposition Benches and from around the House.

The Government have responded positively to the concerns of this House that the Defence Council regulations should be subject to the affirmative procedure. I know that the noble and gallant Lord, Lord Craig, and others will be disappointed with our response to his concerns about the use of the term “part-time” in the Bill. I hope that in due course he will see that his fears about people disparaging the good name and full commitment of the Armed Forces are unfounded, once people are able to apply to work part-time or have protection from being separated from their home base for prolonged periods.

Of course, encouraging the right cultural attitudes and behaviours in the Armed Forces will play an important part in ensuring the success of these measures. As I said at the outset, the Bill is designed by the services for the services, and all three remain involved in the plans to make this a success. We are immensely proud of the achievements of our Armed Forces; they work hard for us and we owe them a great deal. Flexible working will provide our brave and courageous service men and women with an opportunity for some respite from their full-time commitment when they need it most. This Bill is for them and I beg to move.

[Lord Craig of Radley (CB)]

My Lords, when the noble Earl responded to my Amendment 3 on Report, he began with a frank and gracious apology to the House and to me for saying in his letter of 29 September that it would not be possible to remove the word “part-time” from the Long Title of the Bill. As he said, this was incorrect but given in good faith. To my embarrassment and regret, I failed, when I spoke again, to thank him for his apology—which of course I fully accept. I have spoken and written to the noble Earl to apologise for this discourtesy but would like to put the record straight.

In the same letter the noble Earl sought to allay concern by saying that the use of “part-time” was not unprecedented: it had been, he said, in previous Armed Forces legislation. So far, it has been found but once in all such Acts, going back over 60 years—and that once was in a 1955 Act, long repealed, and with a totally different meaning from contemporary usage. Both of these were weak—and, indeed, inaccurate—claims. The noble Earl would have done better to note that our objection to introducing “part-time” into the Bill was not that it would be unprecedented but that it should be there at all. The noble Earl said that he did not agree with my analysis, but a dozen speakers sympathised and agreed with the noble and gallant Lords and myself. More than 50 unwhipped Peers supported us in the Lobby.

The noble Earl said that the purpose of this novel type of flexible working was to enable individuals to take breaks from their 24/7/52 commitment to their service. Both in Grand Committee and on Report, our amendments were aimed at providing for just that, with appropriate subordinate legislation. We were being direct, not devious, as the noble Earl chided us. The Government’s approach—that the individual must first commit to serving on a part-time basis before becoming eligible to apply for breaks—is far less straightforward.

The arrangements for time away are all to be set out in subordinate legislation—but, we are told, cannot be guaranteed unless individuals are formally released from full-time duty to the Crown. But are they released? They are still beholden to the Crown because they remain under the Armed Forces Act. Would the military or civil police be responsible for investigating a crime committed by an individual while on a break? As a law tutor might say to his class of students, “discuss”.

I hope that the Government noted that the noble and learned Baroness, Lady Butler-Sloss, strongly suggested that phraseology other than “part-time” could be adapted for the armed services in legislation—as did the police, with detail in subordinate legislation to guarantee arrangements. However, the noble Earl said that what was intended was,

“distinctly different … and therefore the way we describe it needs to be very clear”.—[Official Report, 11/10/17; col. 249.]

I have since seen the noble Earl’s response to criticism by the Delegated Powers and Regulatory Reform Committee. He wrote:

“There is no intention at present to enable part-time service for all enlisted regulars”.


“No intention at present” really does make it distinctly different from just providing compassionate flexibility. Is this the intended direction of travel? Do the Government want this primary legislation to spawn part-time service in further and wider applications than those proposed now?

A statutory door is being primed to spring open—a far cry from the assurance given by the noble Earl in that letter of 29 September in which he wrote:

“The amendments to primary legislation simply provide us with the power to make regulations to enable these particular forms of flexible working”.


The Bill will enable far greater powers than that. There is no place in the Armed Forces Act 2006 for such an untrammelled, undefined, catch-all “part-time basis” phrase, unless Governments want a broad statutory power to recruit and re-muster our armed services little by little into becoming a force of part-timers. Perhaps, having reviewed all that has been said during the passage of the Bill in your Lordships’ House, wiser counsel will prevail in the other place. I certainly hope so.

--- Later in debate ---

[Baroness Jolly (LD)]

My Lords, I agree with the noble Lord, Lord Tunnicliffe. I thank the Minister and his team very much for supporting the House and us in our deliberations on the Bill. We are pleased that the Government have accepted the view of the Delegated Powers and Regulatory Reform Committee on parliamentary scrutiny and on the adoption of the affirmative procedure. I worked quite closely on this with the noble Lord, Lord Touhig, and with both spads. We agreed amendments between us: so it is an example where, on occasions, opposition parties can work successfully together, and I wish the noble Lord success in whatever he is doing.

On a personal note, this is my last defence hurrah. I have now moved to health and have come back just for Third Reading. It occurred to me as I was walking into the Chamber that ever since I came into this House I have been either opposite or alongside the noble Earl in my deliberations and those of the House. I thank him very much for his courtesy and consideration; I learned an awful lot from him.

[Earl Howe]

My Lords, I much appreciate the remarks from the Front Benches opposite and reciprocate the warm feelings that have just been expressed by the noble Baroness, Lady Jolly.

I hope that both noble and gallant Lords who spoke will accept that I have listened with care to the arguments they put forward. The Government have taken due note of their concerns about the use of “part-time” in this legislation. We have had debates in Committee and on Report, and the matter was settled by a vote on Report. There is a convention in your Lordships’ House that at Bill Do Now Pass we should not continue the debates of previous stages. Nevertheless, in so far as I have been asked questions by noble and gallant Lords and the noble Lord, Lord West, I undertake to write after the conclusion of this stage of the Bill. Let me make it clear that the service chiefs fully support this legislation. As I said in my opening remarks, the Bill is designed by the services for the services. All three remain involved in the plans to make this a success and I hope that all noble Lords will agree that that is now the imperative.

Bill passed and sent to the Commons.