Armed Forces Bill

Lord Astor of Hever Excerpts

Tuesday 6th September 2011 Grand Committee

[Lord Rosser]

My Lords, I wish to speak to Amendments 4, 5, 16, 18 and 19. Most of the comment on and interest in the Bill has centred on the Armed Forces covenant and the Secretary of State’s report. It is therefore not surprising that by far the largest single group of amendments should relate to this issue.

The Bill places a duty on the Secretary of State for Defence to produce an annual report to Parliament on the effects of membership or former membership of the Armed Forces on servicepeople. In preparing the report, the Secretary of State must have regard in particular to the unique obligations of and sacrifices made by the Armed Forces, the principle that it is desirable to remove disadvantages arising for servicepeople from membership or former membership of the Armed Forces, and the principle that special provision for servicepeople may be justified by the effects on such people of membership or former membership of the Armed Forces.

However, it would appear that these principles apply to issues within the Armed Forces covenant report, but which will include only those issues that the Secretary of State decides to include. These principles should be applicable to government policy, and my amendments include provision for the principles to apply to all public policy by stating that, in preparing policy, public bodies and Ministers must have regard to those matters to which the Secretary of State is to have regard in preparing an Armed Forces covenant report, and must also consider whether the making of special provision for servicepeople or particular descriptions of servicepeople would be justified. There should surely be an obligation on all public servants to take heed of the principles of the covenant if we are to be confident that the covenant is to be fully applied. Further, there is provision in my amendments for the Parliamentary and Local Government Ombudsmen to investigate complaints from service personnel that a public body or local authority has failed to meet the commitments outlined in the Armed Forces covenant and The Armed Forces Covenant: Today and Tomorrow.

The Bill provides for the Secretary of State’s report to cover healthcare, education and housing, but anything else is left to the Secretary of State to determine. As the Minister put it in his opening speech at Second Reading:

“Other issues will only emerge at the time, so the Bill leaves this flexible”.

The difficulty is that leaving out everything apart from healthcare, education and housing provides an opportunity for any Secretary of State to seek to sideline other important issues, perhaps because they are difficult or awkward. Indeed, the Secretary of State would appear to be reporting on what other departments or devolved Administrations are doing in respect of healthcare, education and housing, for which he is not directly responsible, but not reporting on the work of his own department for which he is directly responsible. My amendments propose a much longer list in order to overcome this potential problem and limit the extent of any Secretary of State to decide which issues are relevant to current or former servicepeople. After all, if in the opinion of a Secretary of State any of the headings listed in my amendment are not worthy of reporting on in the Armed Forces covenant report in any one year, that is all the Secretary of State need say in his report, and then see if Parliament and others are of the same opinion.

At Second Reading the Minister said that,

“the process of preparing reports will evolve over time. We are breaking new ground. We will learn from experience, listen to comments, and move forward in a positive way. I am clear that that is the right way to do it, rather than making the legislation excessively prescriptive.—[Official Report, 6/7/11; col. 272.]

I am not as convinced as the Minister that the Government intend to listen if they have already decided that a specific reference to anything more than healthcare, education and housing as set out in the Bill is being “excessively prescriptive”. Bearing in mind that we normally have an Armed Forces Bill only every five years, and that the Ministry of Defence adopts the approach of keeping proposals requiring primary legislation until the next Bill is due, we need to get the wording in this Bill right on the extent of the issues which must be addressed in a Secretary of State’s Armed Forces covenant report.

My amendments, unlike the Bill, mention specifically the external reference group. At Second Reading the Minister accepted that concerns had been raised about the independence of the annual report, concerns that will relate to any Secretary of State and any Government of whatever political colour. The Minister said that the Government have undertaken to publish alongside the annual report whatever observations the external members of the covenant reference group choose to make on it. Since the issue of the independence of the report is not directed at any one Secretary of State or any particular Government, a requirement to publish any observations from the external reference group—apparently now called the covenant reference group by the Government, and confirmed by the Government as a permanent body—should be on the face of the Bill, as should the results of any additional consultation with service charities and groups and other interested parties both inside and outside government.

At Second Reading, the Minister said:

“In preparing annual reports, the Ministry of Defence would consult widely with interested parties inside and outside Government”.—[Official Report, 6/7/11; col. 272.]

My amendments extend the list of issues to be addressed in the Secretary of State’s annual report to 10 headings, including accommodation, healthcare and education. Six of the additional headings cover,

“mental healthcare … pensions and benefits … employment and training … support for reservists and their employers … the running of the Armed Forces Compensation Scheme, and progress on Armed Forces rehabilitation schemes”.

I would hardly have thought that any of these headings made the legislation “excessively prescriptive”, since they are all issues of considerable importance to serving and former service personnel, of whom, with their families, there are around 10 million, or one in six of the population.

The last heading in my amendment is,

“such other fields as the External Reference Group may determine”,

instead of as in the Bill,

“such other fields as the Secretary of State may determine”

Since all of the rest of the report will be under the auspices of the Secretary of State, the independence of the report will be enhanced by the ability of the external reference group to determine what, if any other fields should be addressed apart from those specifically provided for in the Bill, and to make their own observations on the content—or lack of content—of the report, as the Government intend. We do not want a process that is simply Ministers reporting on what Ministers deem fit to report on. My amendment also sets out the broad composition and role of the external reference group and provides for it to be independently chaired.

On this point, it would also be helpful if the Minister could clarify what is meant by the wording in the Explanatory Notes to this Bill, in paragraph 18. One sentence says:

“If the Secretary of State considers that any of the fields of healthcare, education and housing is not relevant to a particular description of people covered in a report, the requirement to report on each of those fields is relaxed to that extent”.

Can the Minister confirm that that means the Secretary of State is the sole arbiter on whether there is a need to report on anything in the covenant report, including healthcare, education and housing? I hope that he will make a positive response to my amendments, which strengthen the covenant and accountability for its implementation across public life. I also look forward with interest to his response to the other amendments which have been so thoughtfully and powerfully moved.

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)]

My Lords, this first group of amendments to Clause 2 consists of some 12 items, and deals with many aspects of the Armed Forces covenant and the proposed annual report. I am very grateful for the Committee’s patience, especially as, in order to draw out some common themes, I will not keep to the strict numerical order of amendments.

Amendment 1, in the name of the noble and gallant Lords, Lord Craig and Lord Boyce, would change the position of the provision for the Armed Forces covenant report in the Armed Forces Act. At Second Reading, the noble and gallant Lord referred to an “unfortunate juxtaposition” if the new provision were inserted directly after Section 359, which deals with pardons for servicemen executed during the First World War. I am most grateful to the noble and gallant Lord for the helpful and constructive way in which he has approached this issue. In their amendment, the noble and gallant Lords propose that the new provision should be moved to follow Section 339. This would place it in Part 14, which covers topics such as enlistment and terms of service. We do not favour that, because we see the annual report and the Armed Forces covenant itself going far beyond enlistment and terms of service.

I had hoped that we could arrange a printing change, such that the new provision was inserted into the 2006 Act at new Section 353A, under its own italic “Armed forces covenant report” cross-heading. As the noble and gallant Lord said, I wrote to the noble and gallant Lord, Lord Craig, in these terms. I thought that we had a deal.

Regrettably, I have now been advised that the Public Bill Office has declined to make the proposed change in printing points, having originally said that it was acceptable. Nevertheless, I reassure the noble and gallant Lords that there is no significance in the current proposed location next to Section 359. The two provisions are unrelated but are both properly categorised as “miscellaneous”. No relationship is implied by their positioning. Therefore, I do not consider that there is a major issue about the correctness or appropriateness of the new section.

Three other amendments in the group deal with the annual report of the covenant. Amendment 10, tabled by my noble friend Lord Palmer, concerns housing. The noble Lords, Lord Kakkar and Lord Patel, focus in Amendment 11 on healthcare research. The noble Lords, Lord Rosser and Lord Tunnicliffe, propose a longer list of additions in Amendment 5. The amendments draw attention to very important subjects. Amendment 10, tabled by my noble friend Lord Palmer, requires the report to provide an update on progress with housing associations towards improving service accommodation. In practice, housing associations may contribute more to helping service leavers and veterans to find suitable housing than helping those in service. Our successful pilot shared-equity scheme is managed by a housing association. Housing is one of the core topics mentioned in Clause 2 and the Government regard it as one of the most important elements of the Armed Forces covenant. We have been very active in exploring the scope to do more for our people, for example through the housing summit organised by the Housing Minister in May this year. Some housing associations are already doing excellent work in this field, and we will always be interested in good ideas from the housing sector.

Similarly, in response to Amendment 11, proposed by the noble Lords, Lord Kakkar and Lord Patel, we recognise the importance of commissioning and reporting on research designed to underpin healthcare for servicepeople. Very valuable research has already been commissioned by my department, such as the work of Professor Simon Wessely and the King’s Centre for Military Health Research, comparing the health of those who deploy on operations with a control group. We will continue to support research into healthcare issues affecting servicepeople, both in-house and, where appropriate, through external funding. Other bodies inside and outside government will also commission relevant research. This is a hugely important subject and we take it very seriously.

The noble Lords, Lord Rosser and Lord Tunnicliffe, tabled a much longer list of subjects to be covered in the report, which I suspect is designed to cover everything relating to the covenant. The assumption that the amendments have in common is that the best way to ensure that the annual report covers issues that matter is to name them in legislation. We disagree. Any attempt to write a comprehensive list is unlikely to be successful. Even if it captures everything today, it will be out of date tomorrow. Topics which became less important over time would still have to be covered every year. The annual report could become a box-ticking exercise.

We feel that it would be much better to have a short list of three enduring topics, as the Bill proposes. There are certain to be issues relating to healthcare, education and housing, and to at least one section of the Armed Forces community, in every year of the report. That is why we believe that they should be included as indicative of the coverage of the report. Beyond that, we should allow the Secretary of State to exercise his discretion on what to cover and for Ministers to defend their decisions.

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[Lord Tunnicliffe]

My Lords, I rise briefly to speak to this group of amendments. The right reverend prelate the Bishop of Wakefield made a nice point when he said that there is a resonance in so much of what we have been talking about today. There is a consensus around the Committee that the Bill as it stands does not firm up the covenant provisions enough. I share the aspiration that the Government should come forward with proposals, and I have to tell them that we will be looking at the points which have been made in this debate. If the Government do not come up with proposals today, it is extremely likely that we will seek consensus on an amendment to be tabled at the Report stage to try to capture the way this debate has gone.

I thank the noble Lord, Lord Ramsbotham, for explaining his amendment, and we will look at it in the light of the Minister’s reply. It is a complex and subtle area, and we shall take a view on how it might form part of our general approach. Turning to the two amendments tabled by the noble Lord, Lord Empey, and the noble and gallant Lord, Lord Craig, this is an absolutely crucial area which the Government have to sort out. I do not agree that the covenant is in such a dire state. I think that we have made progress, both this Government and the previous Government. I commend the way that this Government have carried it forward, but it would be a disaster if we were to actually achieve it and end up with an England-only covenant. Amendments 14 and 15 may not be the right mechanisms but the Government must come up with a satisfactory mechanism to make sure that this is an all-GB covenant.

[Lord Astor of Hever]

My Lords, I want to start by assuring all noble Lords, noble and gallant Lords and the right reverend Prelate that we are listening very carefully and we will reflect very seriously on everything that has been said today before Report.

Amendment 13, tabled by the noble Lord, Lord Ramsbotham, and Amendment 15, tabled by the noble Lord, Lord Empey, take up a similar theme. The first half of each amendment requires the annual report to state what contribution has been made by other departments across Whitehall and in the devolved Administrations.

With regard to the contribution made by Whitehall departments, I believe that the point has already been answered in my response to my noble friend Lord Lee when we discussed Amendment 9. Although the report will be that of the Secretary of State, it will reflect the views of the Government as a whole and it will have been approved by the Government as a whole. There is no need to make that a statutory requirement.

The role played by the devolved Administrations is clearly different. We have always recognised that all the devolved Administrations should be engaged in the preparation of the report. We will invite their contributions and comments. We will make sure that we fully understand and take into account their reactions to anything we propose, and in particular whether they will support and implement what we propose. They have a place on the covenant reference group, which will be closely involved with the report. For example, if the annual report says something about healthcare in Scotland it must do so with the full involvement of the Scottish Government. The published report would naturally make this clear. Again, I do not believe that should be a matter of statute.

The second part of the two amendments requires the Secretary of State to declare what duties have been laid upon government departments and the devolved Administrations in cases where special provision is justified. I can envisage circumstances in which the annual report might do exactly that. But it will not always be possible to do so. It may take time to work out the right approach, or the solution may not be affordable for the moment. In some cases, implementation will not be a case of the Westminster Government laying duties on other bodies. It would be wrong to impose on the Secretary of State a statutory duty which, quite legitimately, he may be unable to fulfil.

I recognise the concern of noble Lords and noble and gallant Lords that the annual report may state conclusions, but have no teeth. They may see a risk of it being ignored due to resource or other considerations. I also recognise that it will be more difficult to produce the report if we do not have the co-operation of all the responsible authorities across the United Kingdom. Naturally, I very much hope that such a situation will not arise. Commitment to the Armed Forces covenant is strong across government and the United Kingdom. The record shows that we can work effectively with all the departments concerned. I believe we should proceed on the basis that those productive relationships will continue.

Amendment 14 highlights an important aspect of the Armed Forces covenant and the way it interacts with our constitution. In many cases special provision, in response to the effects of service in the Armed Forces, will not be a simple matter of issuing an edict from Whitehall. Responsibility may fall within the discretionary powers of local authorities or other local delivery bodies. More particularly, in terms of this amendment, it may fall to the devolved authorities in Scotland, Wales or Northern Ireland. Special provision for veterans in the areas of health or housing, for example, as has been mentioned, could fall into this category.

The key to success will, of course, be the quality of dialogue. The devolution settlement requires us to work closely together with devolved bodies. Whitehall officials are in regular contact with their opposite numbers and working relations are good. I repeat: working relations are good. Ministers in Edinburgh and Cardiff have underlined their commitment to the Armed Forces covenant. The situation in Northern Ireland is more complex but we are confident that we can maintain a fruitful dialogue to achieve our aims. We have, for example, succeeded in introducing the new arrangements for scholarships for bereaved service children across all the countries of the UK. The new transition protocol for injured personnel, designed to improve the handover of care from the military to civilian services, will be applied in all four countries. These cases show that the system operates effectively.

I welcome the reference in the amendment to special provision being “broadly the same” in the different countries of the United Kingdom. It is important to recognise that there is no virtue in complete uniformity here. Special provision clearly implies a divergence from the normal regime. Since the normal regime may differ in different countries of the United Kingdom, the nature of special provision may also have to differ. It is the outcome which matters; that is, making sure that we are doing the right thing for our people and honouring the Armed Forces covenant right across the UK.

The Government are sympathetic to the idea of consistency. However, the amendment takes the annual report several stages further than we envisage. It may not be possible, at the time of the publication, to set out detailed proposals for implementing the special provision that the Secretary of State considers to be justified in England or elsewhere. I can, nevertheless, give noble Lords, and the noble and gallant Lord, two assurances which I hope will respond to the points that they made. First, the annual report will contain references to the contributions which have been received in its preparation. Secondly, where the Secretary of State reaches the conclusion that special provision is justified, the annual report will seek to take into account the position across the United Kingdom. I hope on the basis of these assurances that the noble Lord will not press his amendment.

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[Lord Davies of Stamford]

My Lords, I support the amendment of my noble friend Lord Rosser. I will make two points. First, the system that he proposes, as he is well aware, has existed for some time in France; I take it that the Government, too, have seen that. I believe it works extremely well. It is always sensible not to reinvent the wheel. If one finds a mechanism in a compatible country which is working well, that is evidence in favour of a proposal—or if it is not working well, it is evidence against. The French are very satisfied with the way in which this works.

Secondly, the position taken up to now by the Government—who have been very good at listening open-mindedly to these debates, so I trust that it was a provisional view—is that all we need to do is to facilitate local authorities to appoint Armed Forces advocates where they wish to do so, and that we do not need to intervene where they do not. This is a most illogical approach to the problem. Local authorities with the will to create the post of Armed Forces advocate have, by that fact, already demonstrated that they are alert and sensitive to this need. The problems arise with local authorities that are not inclined to set up Armed Forces advocates. Authorities which, either through mistrust of the military or sheer ignorance, have not focused on this and are not inclined to accept the proposal, are those where problems are likely to arise and where an advocate is most necessary. The more logical solution is the one proposed by my noble friend. I hope that it will find favour with noble Lords and with the Government.

[Lord Astor of Hever]

My Lords, I say at the outset that I regard Armed Forces advocates as an excellent idea. In UK government departments and in the devolved Administrations, they carry out two highly important roles. They ensure that their department’s policies take account of the special needs of the Armed Forces community, and they communicate their department’s perspective to others, including my officials and external stakeholders such as family federations or ex-service charities. Elsewhere, in local authorities or in NHS bodies, Armed Forces advocates or individuals with similar titles act as champions for service personnel, families or veterans. In some cases they are responsible for improving communications with the Armed Forces community to ensure that entitlements to services are properly understood. The exact role depends on the job to be done. There is no single model and neither should there be.

In answer to the question of the noble Lord, Lord Rosser, about the Second Reading speech of the noble Baroness, Lady Taylor, we want to ensure that best practice is promoted around the country, for example through the community covenant. We will be able to draw attention to successful uses of the advocate system, but it will be for them to decide what is best in their circumstances. I hope that that answers the question.

My difficulty with the amendment does not concern the merits of Armed Forces advocates at the local level; that is not in doubt. The case for them at the regional level is perhaps less obvious, but there is no need to legislate for their existence. The previous Government set up advocates without requiring any legislation and I commend them for doing so. I suggest to the Committee that the same logic applies and that we should not support the amendment. Therefore, I hope that the noble Lord will withdraw it.

[Lord Davies of Stamford]

Before the noble Lord sits down, I would be grateful for his reaction to my point that surely it is those local authorities least inclined to establish the post of Armed Forces advocate where it is most likely the Armed Forces will need such an advocate, and vice versa.

[Lord Astor of Hever]

The noble Lord makes a very good point. We will certainly look at this.

[Lord Rosser]

I would like to thank my noble friend Lord Davies of Stamford for his support for the amendment and also the Minister for his response. I will reflect on it, but in the mean time, I withdraw my amendment.