Armed Forces Commissioner Bill (Third sitting)

Graeme Downie Excerpts

Committee stage
Thursday 12th December 2024 Public Bill Committees

[Mr Francois]

I beg to move amendment 8, in clause 1, page 2, line 2, at end insert—

“(5A) The Commissioner shall operate independently from –

(a) the Ministry of Defence;

(b) the armed forces; and

(c) any other government bodies

and shall be free from any influence or interference in the exercise of the Commissioner’s functions.”

This amendment would require the Commissioner to be independent from the Government and the armed forces and from any interference in the carrying out of their duties.

Amendment 8 has been tabled to facilitate a debate on how truly independent the proposed Armed Forces Commissioner will be from the Ministry of Defence. The Committee may recall that this topic cropped up a number of times during our public evidence sessions on Tuesday. A number of Committee members asked witnesses about the extent to which the new Armed Forces Commissioner, as envisaged in the Bill, would be at arm’s length from the Department and therefore able to exercise truly independent judgment.

The two generals, as opposed to the three tenors—Lieutenant General Sir Nick Pope, the chair of Cobseo, the Confederation of Service Charities, and Lieutenant General Sir Andrew Gregory, the controller of SSAFA, the Armed Forces Charity; I had the privilege of serving with both at the Ministry of Defence—both commented on this point. General Gregory in particular stressed that whoever takes up the commissioner’s job would have to work hard to earn the trust of members of the wider armed forces community. He suggested that one good way of doing that would be to get out and about—make visits to garrisons, naval bases and air fields to meet service personnel and their families and to hear their concerns face to face. There is an old infantry saying: “Time spent in reconnaissance is rarely wasted.” This would perhaps be another good example of that principle in action.

One reason for the concern is that the Armed Forces Commissioner and their office, including their staff, will be funded by the Ministry of Defence rather than by Parliament. I am mindful of the old saying: “He who pays the piper calls the tune.” To draw an analogy, members of the House of Commons Defence Committee, who are elected by this House to hold the Department to account, are paid for by the Independent Parliamentary Standards Authority on behalf of the taxpayer and not directly by the Government. I would also draw an analogy with what has happened to the Office for Veterans’ Affairs.

Under the previous Government, the OVA was deliberately set up as an entity outside of the Ministry of Defence, having its home in the Cabinet Office and with a very proactive Minister in the Cabinet in Johnny Mercer. He was able to not only hold the Ministry of Defence to account in Government but liaise with other Government Departments that had an important influence on veterans’ affairs. As an example, the Department of Health and Social Care is obviously very important to veterans. Once they leave the armed forces they are no longer reliant on the Defence Medical Services for their medical needs, and they transition to the NHS. The decision by the incoming Government to take that office and roll it back into the Ministry of Defence has led to some criticism, including from the veterans community themselves. If I am lucky enough to catch your eye, Mr Efford, I might return to that in more detail under new clause 2.

For now, I remind the Committee that on multiple occasions on Tuesday the word “trust” was used, both by witnesses and members of the Committee questioning them. I ask the Minister what he can do this morning to reassure the Committee that the Armed Forces Commissioner, who, we understand from Tuesday’s session, is not likely to be up and running until early 2026, is going to be able to win the trust of service personnel and their families. Will the commissioner truly be in a position to act independently on their behalf and in their best interests? I hope the Minister can understand the context in which these questions are being asked. I eagerly look forward to what he has to say.

[Graeme Downie (Dunfermline and Dollar) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Efford. I want to make a couple of small points. I have worked with ombudsmen in the past; ultimately, as we heard in the evidence earlier this week, somebody has to pay for an ombudsman. Often that is funded in other ways. I have previously worked with the energy ombudsman, whose funding comes from the energy companies. It is important to put that on the record.

Furthermore, just because an amendment says that someone is independent, that does not make it so. As the right hon. Member for Rayleigh and Wickford said, building trust will be crucial for the person in this role. Later clauses make clear the independence the commissioner will have—whether that is their ability to enter premises without notice, should they see fit, or to consider a range of different requests. My feeling is that the intent of the amendment is already covered by the Bill. It is important that we make sure that the commissioner builds that trust, as was pointed out by several witnesses on Tuesday.

[Pam Cox (Colchester) (Lab)]

I want to make a point about the wording of the amendment, which reads:

“The Commissioner shall operate independently from”.

Reviews that I have conducted of the powers of other commissioners do not explicitly state that. There are many special interest commissioners these days, so this would be an unusual provision in that regard. Like my hon. Friend the Member for Dunfermline and Dollar, I think the building of trust is essential to the smooth operation of the commissioner’s work with the armed forces and their families, which we so badly need. But that will be done in so many ways through the office of the commissioner. I do not think it would depend on this particular amendment.

--- Later in debate ---

[Graeme Downie]

Further to the intervention from my hon. Friend the Member for Colchester, I think the difference between the American system and the British system is stark, not least because of the level of parliamentary scrutiny in this place.

As the Minister has outlined, there is obviously a role for the Defence Committee to pass an opinion. That is our convention, and I think it works very well, in addition to the scrutiny we see from Members of all parties. If that became a problem, I am sure that both Opposition and Government Members would be tabling written questions, motions and whatever else. On Second Reading, the Chair of the Defence Committee, my hon. Friend the Member for Slough (Mr Dhesi), was clear that his Committee would look carefully at that. There is a strong difference between the American system and the British parliamentary system in that regard.

The full independent public process that will be followed for the appointment is another key difference. It is unlike the US system, which has a presidential appointment and under which there is no vetting; anyone can be appointed. We therefore have an additional stage of security, both for public and for parliamentary scrutiny. I feel that amendment 5, although well intentioned, is unnecessary.

[Luke Pollard]

I thank the hon. Member for Epsom and Ewell for her amendment 5. As with amendment 7, it is good to be able to place on the record our intention for how this process should work.

Amendment 5 would insert a requirement for the House of Commons Defence Committee to conduct pre-appointment hearings and to state a positive or negative opinion on the appointment of the Secretary of State’s preferred candidate for commissioner. The Secretary of State would be able to recommend their preferred candidate to His Majesty only following a positive opinion from the Committee.

I draw hon. Members’ attention to the Second Reading debate, during which the Secretary of State confirmed that the Government are keen for the Committee to exercise rigorous pre-appointment scrutiny of candidates to ensure that we appoint the best person to be the independent champion for the armed forces and service families. The hon. Lady’s amendment would certainly set a precedent for wider Government discussion. I suggest that her argument might best be directed in the first instance to the Cabinet Office, given its cross-Government leanings, rather than to the Ministry of Defence.

The Government have said that the pre-appointment scrutiny by the House of Commons Defence Committee should be vigorous and thorough. We expect it to go above and beyond the current process, precisely because the commissioner will report their recommendations to Parliament via the national security scrub in the MOD, so their role is somewhat different from the role of other commissioners who might receive pre-appointment scrutiny from other Select Committees. Their powers are designed to be greater, so a more prominent role will be given to Parliament. We are confident that the existing practices and arrangements in Parliament are robust, that they can address any concerns that the Select Committee may have about a candidate, and that we will be able to take the Committee’s views fully into account before making a recommendation to His Majesty.

--- Later in debate ---

I am not a lawyer myself, but if someone goes into court it is handy in certain circumstances to have a KC’s opinion. I hope that the hon. Member for North Durham and the Committee can follow the rationale of what we are seeking to do.

[Graeme Downie]

rose—

[Mr Francois]

At this point, I give way—hopefully it will save the hon. Member for Dunfermline and Dollar the trouble of tabling multiple parliamentary questions.

[Graeme Downie]

I thank the right hon. Gentleman for giving way. Perhaps I can assist him by drawing his attention to schedule 1 on page 10 of the Bill. It specifically says:

“The Secretary of State may…provide staff in accordance with arrangements made with the Secretary of State by the Commissioner”.

My reading of that is that the commissioner, should they wish to, would be able to hire a King’s counsel for specific issues. At the same time, it would preserve the independence of the commissioner: we would not be putting anything into the Bill to make Parliament direct them, and we could make sure that independence was maintained.

[Mr Francois]

I commend the hon. Gentleman for his accurate reading of the legislation. On Second Reading, the Minister made the point that the legislation is drafted to be facilitative. For instance—we will come to this later—it does not necessarily define exactly what are and are not “general service welfare matters”. It provides a broad remit. But for the reasons that I hope I have been able to articulate, we believe that although the schedule that the hon. Gentleman mentioned would facilitate the Armed Forces Commissioner in seeking to appoint a legal adviser, that would have a spending implication. It could be—it is not inconceivable—that some in the Ministry of Defence would baulk at that. The intention of putting the provision into the Bill is to include beyond peradventure the right of the commissioner to seek to appoint a senior legal adviser. In a sense, it does not compel the commissioner to do that, but it gives them that power very clearly.