Armed Forces (Terms of Service) (Amendments Relating to Flexible Working) Regulations 2018

Earl Howe Excerpts

Wednesday 10th October 2018 Lords Chamber

Moved by

[Earl Howe]

That the draft Regulations laid before the House on 18 July be approved.

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

My Lords, the instrument that we are considering today will make consequential changes to the terms of service regulations for regular personnel in the Royal Navy, Royal Marines, Army and Royal Air Force. The changes are necessary to enable defence to operate and manage part-time service and restricted separation service, described collectively as “flexible service”, from 1 April 2019.

As noble Lords will recall, in February this year, the Armed Forces (Flexible Working) Act 2018 became law. In the informative and productive debates that we held in the lead-up to Royal Assent, it became clear that there was a genuine desire to understand how flexible service will operate legally, fairly and efficiently for our people and their families, who will benefit from these new opportunities, and for the chain of command, who will manage them while continuing to deliver operational capability. Indeed, I recall that when we were debating the flexible working Bill some noble Lords used the phrase “the devil will be in the detail”. The Government have acknowledged the desire to scrutinise the fine detail that will enable flexible service to operate. Accordingly, today we are introducing an important piece of secondary legislation that provides that detail.

We have worked with the Armed Forces to ensure that while the changes introduced by the instrument will usher in new, modern opportunities for our people, they are at the same time balanced with the need to protect the Armed Forces’ ability to deliver operational capability. This, we are clear, must be our red line. I hope this and the debate that follows will assure noble Lords that the MoD has appropriately balanced the overriding need to maintain the operational capability of our Armed Forces with the need to support those who deliver it, and their families, with opportunities to take flexible service.

I draw the House’s attention to some of the main content of the instrument. It enables regular service personnel to serve on a part-time basis. It also enables them to restrict the number of days for which they can be required to serve away from their home base—up to 35 days in any 12-month period. The instrument sets out the overall time limits for periods of flexible service and the flexible service application process, which has been designed to be fair and efficient. It enables service personnel to apply voluntarily for flexible service and empowers the service to consider applications. However, it does not guarantee that an application will always be successful. In addition, the instrument outlines the actions required by each party during the application process. Importantly, the process is designed to ensure that service personnel cannot have flexible service terms imposed on them.

There may be occasions when, a flexible service arrangement having been agreed, circumstances require changes to be made to the arrangement, either permanently or for a specific period. We have therefore set out the conditions under which a flexible service arrangement may be varied, suspended or terminated. In the interests of national security, we conclude that in extremis it is essential for the services to be able to recall personnel back to their full-time duties immediately, either as a permanent termination of the flexible service arrangement or a temporary suspension of it. However, this will only be used sparingly, and only where a 90 days’ notice period would have an unacceptable impact. Individuals will also be able to terminate their arrangement with 90 days’ notice, or to apply to suspend or vary it.

We want to give service personnel as much certainty as possible over any flexible service arrangement that they enter into. Otherwise they will not apply, if they feel an arrangement is likely to be cancelled without warning or explanation. However, we are very clear that this must be balanced with service need above all else. We recognise that service personnel may not always get the outcome they had hoped for when applying for flexible service; therefore, we judge it right and fair that we make provision for an appeals process in the instrument. However, the scope of any appeal will be limited to requesting that the appeals authority reconsider the decision that the serviceperson is unhappy with. Service personnel will be limited to one appeal against a decision. Outside of this process they will retain their normal access to the Service Complaints system.

As noble Lords will note, the working detail beneath the main headlines that I have outlined ensures that we achieve our main policy aim effectively and fairly—that is, to give our people access to new, modern, flexible service opportunities, but at the same time recognising that maintaining operational effectiveness is paramount.

My Lords, the House’s approval of this legislation will be a key step in the journey towards the introduction of flexible service on 1 April 2019. As well as the primary purpose of making changes to the Armed Forces terms of service regulations, it will also enable the finalisation of some other important related activities. These include, first, the amendment of subordinate Armed Forces regulations; secondly, the publication of a suite of policy guidance material for those who may consider applying for flexible service and those who will administer it; and thirdly, our ongoing comprehensive communications campaign, which will promote and explain flexible service but also manage expectations and not over-sell it.

All this activity, together with other consequential changes to Armed Forces pension scheme and compensation scheme legislation, and the changes we need to make to our IT systems to enable flexible service to operate, are firmly on track for delivery in time for launch on 1 April 2019.

To conclude, noble Lords have already demonstrated their overwhelming support for the concept of flexible service. Today we can crystallise that support by approving the detail that will make flexible service a welcome reality for our Armed Forces, who continue to serve us with distinction around the world, often in challenging circumstances. I beg to move.

[Earl Attlee (Con)]

My Lords, with his usual skill and clarity my noble friend the Minister has made more or less the same points that were made when we debated this matter during consideration of the primary legislation. I am entirely happy with his Motion. What I do not understand is why noble Lords opposite, and your Lordships’ Delegated Powers and Regulatory Reform Committee, sought the affirmative procedure for this very minor matter. Noble Lords should be aware that Ministers have the power to make much more significant changes to the terms and conditions of service than these very minor flexibilities. I hope the Opposition Front Bench have some substantive points or questions that are relevant to the regulations.

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[Lord Tunnicliffe (Lab)]

My Lords, we will, of course, support these regulations. I fear the noble Earl, Lord Attlee, has in many ways the wrong challenge. The requirement that these be subject to an affirmative order has an effect that one comes across again and again in complex organisations: the knowledge that something will be scrutinised at the highest level produces very high-quality work. One of the key factors noticeable in these regulations—I take them together with the notes for the service personnel who will use them—is that virtually every question left unanswered in the primary legislation has been answered in them. Therefore, I welcome and support them. I have only one question related directly to the regulations, which is about the reporting procedure: will the frequency of their use be reported in the public domain, and if so, where?

The problem of being a Minister in your Lordships’ House is that nobody is here to enforce the rules. Accordingly, I looked at the Explanatory Memorandum to see if I could find something to say. I noted that one reason for these rules was to improve recruitment and retention in the Armed Forces. Essentially, it was an important piece of morale-boosting, which this Government certainly need. Total outflow from the Armed Forces has exceeded intake every year since 2011. I looked into this a little bit further; the way to find out what morale is like in the Armed Forces is to go to the regular Armed Forces continuous attitude survey. It is a brilliant document in terms of information—and a deeply depressing one for anybody who reads it. I will quote one or two statistics from it: satisfaction with pay has gone from 52% in 2010 to 31% now; satisfaction with service life in general has decreased—among both officers and other ranks—from its peak of 61% in 2009 to 41% now.

Dissatisfaction has been particularly acute in the Royal Marines. Members of this House have fought a little battle to keep ships retained for the use of the Royal Marines, yet we find that service morale among officers—that is, ratings for high morale—has gone from 64% two years ago to 23%; for other ranks, it has gone from 32% two years ago to a staggeringly low 9% now. I would defend the right of the Minister not to respond to this, but I hope he will rise to the occasion and give us some indication of how this crisis is being addressed. I put it to him that one of the reasons is leadership—I am not talking about people in uniform; I am talking about the politicians. SDSR 2015, which was published on 23 November 2015, promised annual reviews. That was a good thing, as I think it has emerged that the SDSR was underfunded.

The Government met their commitment and, roughly a year after that publication, they produced an annual review—the first annual report. The second annual report should have been published on 23 November 2017 but it was overtaken by, of all things, a review by the Cabinet Office. There must have been some squabbling because that metamorphosed into something called the Modernising Defence Programme. We were told that its main points would be published by the time of the NATO summit of 2018, and indeed we got a letter from the noble Earl. As ever, it read brilliantly the first time—these letters are always well drafted—but the second time you read it through you realised that it said absolutely nothing. There was not a single concrete piece of action in it.

If the noble Earl wants to rise to the occasion, I hope he will say when we will see real progress on the review and when the Armed Forces will recognise that they have a serious morale problem, with a programme to address it directly. Although I have served in the VR, I am not a military man in the sense that I have not served full time or been presented with any hostile forces, but I have talked to a lot of people who have. My summary of what they have said to me is: if you want effective forces, you have to have leadership, equipment, training and morale. These are not additives; they are multiplicities, and if any of them is at a low level, that affects all of them and you have wasted your money. We are not at all happy with the equipment area or the training area, and now we are not at all happy with the morale area, and I hope that the Minister will be generous enough to provide some answers.

[Earl Howe]

My Lords, I am grateful to all noble Lords who have spoken in response to the introduction that I gave. Beginning with my noble friend Lord Attlee, whom I thank for his supportive comments, I think it is fair to say that Ministers felt duty-bound to respond to the recommendation of the Delegated Powers Committee to make these regulations affirmative. One reason that the committee felt as it did was that there would be a great deal of significant detail and that would really matter in the way that the arrangements were rolled out. I hope that, in common with the noble Baroness, Lady Smith, noble Lords will feel that, having read the statutory instrument, the devil is absent from the detail. Indeed, I hope that the Archangel Gabriel has exercised an influence on it, not least in the way it is expressed, which, as the noble Baroness helpfully said, is designed to be as clear as possible.

Perhaps I may turn to the questions put to me by the noble Lord, Lord Tunnicliffe. First, on whether and to what extent we will publish the statistics relating to take-up after the scheme is launched, initially and going forward we will capture this type of data on our internal systems for analysis purposes and make adjustments where necessary. We do not plan to report publicly on the numbers who take up flexible service in the early years following the launch of these new opportunities. As we have said previously, a more valuable measure of the effectiveness of flexible service will be the long-term effect on recruitment and retention. That is the principal aim of these new policies.

The numbers who initially take up these opportunities will be modest. I have no doubt that they will grow over time but I think they will grow slowly. We envisage that it is unlikely that they will account for more than 1% of individuals—approximately 1,400—so we want to avoid undue focus on numbers for numbers’ sake. We feel that regular collating of external reporting information on such a small cohort would not be particularly beneficial. Having said that, we have pledged to report on the introduction of flexible service in the Armed Forces covenant annual report. If in future we have meaningful data on take-up, we will include it. We will of course provide information in the normal way in response to external ad hoc requests.

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[Lord Craig of Radley]

Will the pensions and pay abatement regulations be put before Parliament or will they just be handled internally? In order to avoid any delay, perhaps the noble Earl would like to write to me?

[Earl Howe]

My understanding is that they will not be put before Parliament, and that they will be administrative arrangements and not the subject of regulations. If I am wrong about that, I will certainly correct myself in a letter.

Motion agreed.