Armed Forces Commissioner Bill

Lord Coaker Excerpts

Consideration of Commons amendments and / or reasons
Wednesday 11th June 2025 Lords Chamber

Moved by

[Lord Coaker]

That this House do not insist on its Amendments 2 and 3 and do agree with the Commons in their Amendment 2A in lieu.

2A: Page 5, line 19, at end insert—
“(1A) Subsection (1B) applies if the investigation was carried out wholly or partly in response to a request made by an individual.
(1B) A report under subsection (1) must not include information which identifies the individual or enables them to be identified, except with their consent.”

[The Minister of State, Ministry of Defence (Lord Coaker) (Lab)]

My Lords, in moving Motion A, I will also speak to Motion A1. I thank all Members, including His Majesty’s Opposition, the Liberals and others, for their careful and considered scrutiny of this landmark Bill. As we have all agreed, it is an important Bill, one that marks a significant step change for our Armed Forces and their families and delivers on a commitment upon which this Government were elected.

At the consideration of Lords Amendments in the other place last week, the minor and technical government amendments were all agreed to. These were the amendments to fully implement the Delegated Powers and Regulatory Reform Committee’s recommendation to change the regulation-making power to define relevant family members from the negative to the affirmative procedure, and the amendment that was consequential on Clause 3. The noble Baroness, Lady Goldie, also raised concerns about anonymity. We listened carefully to the points she raised and brought forward amendments to address these concerns. I shall return to that later.

This leaves only the matters of whistleblowing and anonymity, which are the issues before us today. The amendments tabled by the noble Baroness, Lady Goldie, were put to a vote in the other place and were both disagreed to. However, the Government had taken on board the important debates we had in your Lordships’ Chamber and proposed a significant amendment in lieu, to which the Commons agreed. This amendment picked up on the spirit of the noble Baroness’s amendments, and actually went further than her proposals in delivering concrete legal protections. However, noble Lords will be aware that an amendment to the Government’s Motion today has been tabled, offering amendments in lieu in place of the Commons amendment in lieu.

Let me first offer some explanation on why the other place disagreed with the original Lords amendments on whistleblowing before addressing the specifics of the amendments now before us. While the amendments proposed by your Lordships chime with the spirit of the Bill, the contents did not offer any additional legal protections for anyone coming forward to the commissioner. This entire Bill is already designed to create a trusted and independent route for service personnel and their families to raise concerns about welfare matters that they may personally be affected by or that they observe to affect others.

The commissioner—and this is really important—can already investigate any general service welfare matters they choose, and anyone can raise such an issue with the commissioner, including the type of person defined in the amendments from the noble Baroness, Lady Goldie. The commissioner is independent, sits outside the chain of command and the MoD, and reports directly to Parliament. The commissioner will be bound by data protection legislation, meaning that, for anyone who contacts the commissioner, the personal information and details they provide will be subject to stringent protections.

We all want to protect women from unacceptable behaviours. The debate between us is just about the best way of doing that. In her amendment and speech on Report, the noble Baroness raised the central issue of anonymity for a person raising a concern with the commissioner and the role this may have in building trust and confidence for people to come forward. We heard this and we agreed that this was a concrete legal protection that would add to the Bill. The government amendment—tabled and agreed to in the other place—is therefore designed to address anonymity protections for all those who raise welfare concerns to the commissioner. It has the effect of ensuring that their identity is protected in all the commissioner’s reports, should they wish. It is often said that the Government do not listen to what the Opposition say. In this aspect of this important debate, we have listened but we have also acted.

As I set out on Report, this amendment is supported by further non-legislative commitments, which, taken together, will further bolster trust and confidence in the commissioner. I will restate them now. The Government will update their current “raising a concern” policy, which includes replicating protections available to civilians under the Public Interest Disclosure Act for the military. This update will ensure that similar protections for people under this policy are applied to disclosures made to the commissioner, including provisions relating to anonymity, confidentiality and protection from unfair or negative treatment due to raising the concern.

The Government will also conduct a thorough communication campaign—another point raised by noble Lords—to ensure that members of the Armed Forces and their families are clear about the role of the commissioner and how this interacts with the existing protections and policy, as well as the types of issues that can be raised with them and how they can be dealt with. These specific concerns were raised in your Lordships’ Chamber, and we have acted on them.

--- Later in debate ---

[Baroness Kramer (LD)]

My Lords, I support the noble Baroness, Lady Goldie, and her amendment. I am not going to repeat the strong and powerful case that she made, but I want to pick up on a couple of issues. Whistleblowing and a complaints process are two different things—it is a point that I tried to make on Report. A coherent complaints process is exceedingly important, and it can rise to the level of commissioner, but whistleblowing is an opportunity to deal with things that are far more systemic and come, in a sense, from a different perspective from that of a complaint. That is why, if we look at financial services regulators or regulators in essence across the piece, we will find they all have both channels. They have a complaints channel for people who run into an issue where they have a really serious complaint that they want to raise, but they also have a whistleblowing channel so that where somebody comes across intelligence, has an awareness or sees something that they think should be attended to because it has much deeper implications, they use that whistleblowing channel to go to the investigative or regulatory body.

To me, it is extraordinary to put in place a new Armed Forces commissioner, a clearly important and independent role, and not give that commissioner the tools which you would normally give anybody else picking up that kind of commissioner role so that, through the whistleblowing route, they can receive and reach for information. Without that information, it is very hard for him or her to function in that role.

I think one of the reasons why this is not in the Bill and was not in the Bill from the start is that a change in culture and mindset is taking place. We are now seeing with many Bills coming through this House the issue of whistleblowing being raised, because the public have become aware every time there is a scandal that there have been people who have spoken out but who have not been heard, have been silenced and have suffered detriment, so now there is a search to put whistleblowing protection, almost as a standard norm, in Bill after Bill—I think it would be better to unify it in one place, but I am not going to make that argument today.

An Armed Forces commissioner needs to receive a regular and steady flow of information to enable them to carry out the role that is intended. I think the establishment of a whistleblowing channel will create far more trust among service personnel, who quite frankly understand better than we do the limitations of complaints systems. When somebody enters a complaints system, they typically see themselves as raising a specific personal issue or one among friends which they want to be resolved. In a welfare case, it may well be a situation where housing repairs have not been carried out. It is a perfectly reliable and important channel, but whistleblowing touches something deeper and more fundamental and systemic. To have that channel running parallel is not exceptional; it is the norm. In fact, excluding it is the exception, so I ask the House to seriously consider this.

As I said, if this Bill was being written six months from now, given the discussion there has been around these issues in Bill after Bill, it would automatically have been put in place. I do not want to slow this Bill down as it is important, but I do ask the Government to quickly draft something that they feel captures all these issues, with the legal expertise that they have, and not to lose this opportunity.

[Lord Coaker (Lab)]

My Lords, I want to respond to a couple of the points that have been made. I agree with the point made by the noble Baroness, Lady Kramer, but the purpose of the Bill is to expand the remit of the service complaints ombudsman, who can only look at service complaints, to the commissioner who, as my noble friend Lord Beamish pointed out, can also look at thematic and systemic issues—so it is a complete expansion and change of the role.

I say again to the noble Baroness, Lady Goldie, that we are passing legislation here. The whistleblower amendment is not connected to new Section 340IB. There are two different tiers of somebody coming to the commissioner. There is the first tier, which gives the commissioner all the powers and advantages that noble Lords want: viewing premises, observing, power of entry—all the things laid out in 340IB. That is not in the amendment for the whistleblower. If we pass the whistleblowing amendment, the powers of entry and other powers would not be made available to the commissioner. That is why it becomes a two-tier system, and I suspect that, if noble Lords had the Bill in front of them, they would see exactly the point I am making.

I also thank the noble and learned Lord, Lord Hardie, for his point. Let us say that somebody comes forward as a whistleblower, raising a hugely important thematic issue, and the commissioner says, “I am going to investigate that”. As the noble and learned Lord, Lord Hardie, pointed out, they cannot do it if the whistleblower says “No, I don’t want you to do it”, because it can be done only with the consent of the whistleblower.

[Baroness Kramer (LD)]

My Lords, I understand the point the Minister is making but, in all the years when I have met whistleblowers, I have never met one who came forward intending to speak to somebody and then closed down the issue that they had just raised. Whistleblowers are looking for investigation. But, if he were to present something in lieu that corrected that very small lacuna in the language—three or four words, as far as I can see—I am sure that no one would object.

[Lord Coaker (Lab)]

I say to the noble Baroness that we are legislating here, not on a wing and a prayer and not on the basis of what may happen or the fact that this has never happened. We are a legislature and we are trying to legislate for things that actually may happen.