Armed Forces (Flexible Working) Bill [HL]

Lord Craig of Radley Excerpts

2nd reading (Hansard): House of Lords
Tuesday 11th July 2017 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, this is, indeed, a very short Bill and its purpose seems sound. It is, as the noble Earl has explained, expected to help make service in the Armed Forces more attractive to the younger generation and is seen as an aid to recruiting and retention. It has the backing of the senior leadership in the services. In principle, I support the idea of introducing some specific, limited opportunities for individual service personnel to take a break for personal reasons from their 24/7 commitment. However, it will be important not to sacrifice operational effectiveness. Any application of the scheme must seek to strike a balance between operational demands and the reasonable interests of individuals. Ultimately, the former must be the principal consideration.

With such a short piece of primary legislation, the detail of what is intended must be covered by secondary legislation, by DCIs and/or by Queen’s Regulations. It would be helpful to have available, in Committee and at later stages, draft examples of the SIs and DCIs that will support the Bill’s application. I hope that the Minister will arrange that.

The phrase “flexible working” is clear in the Bill’s title but does not appear anywhere in the text. Instead, “part-time service” and “part-time basis” appear in Clause 1. A more general interpretation of “part-time” refers to so many hours in a day, days in a week or even possibly weeks in a month, but less frequently, if at all, to six months or a year or more away from work. Is it intended that the absences to be allowed are day breaks—possibly half-day breaks, for example—with all breaks of whatever length being measured in comparatively short time periods and never as a sabbatical?

The policy statement refers at paragraph 9 to,

“specified periods of time when they are simply not required for duty (and cannot be lawfully”—

I emphasise “lawfully”—“ordered to attend)”. It says elsewhere that a commanding officer is able to terminate an arrangement. Is there not some inconsistency there? “Part-time” also does not seem to cover the limited geographic employment mentioned in the Minister’s letter of 30 June about the second part of these proposals.

Is there a connotation to “part-time” that I am missing? I would prefer to stick with “flexible”, or “flexibly” where appropriate. This would allow for further variations of flex-working if ever required. Alternatively, could these absences be better described as “unpaid leave”? Leave is a well understood service arrangement, whereas part-time working can, albeit mistakenly, imply that the individual’s commitment to their service is just that: part-time. That is altogether different from a 24/7 commitment and might all too easily be misconstrued in a headline describing this Bill, were it to pass, as suggesting that the modern Armed Forces are now part-timers. Would it not be better to avoid any use of the words “part-time” and “part-timers”?

Maybe unpaid leave or short career breaks are already allowed by Queen’s Regulations. If so, this heavyweight but skeletal primary legislation would be unnecessary to cover these alternative career management arrangements. If the breaks were to be grouped as unpaid rather than part-time leave, some of the potentially adverse criticisms could be avoided without any recourse to primary legislation to deal with one specific type of flexible working. If the Minister will nevertheless hold to “part-time”, then there should be a definition of it in Section 374 of the Armed Forces Act 2006, which is entitled “Definitions applying for purposes of whole Act”.

Clause 1(3) inserts the words “A right conferred”, referring to new paragraphs (ha) to (j) of Section 329(2) of the Armed Forces Act 2006. I feel that “right” is a bit strong. Bearing in mind that such so-termed rights may be varied, suspended or terminated by a commanding officer, they are not inalienable. Might it not read better instead as “a term of service conferred on a person”, or alternatively as “a type of service conferred on a person”?

The secondary legislation policy statement sent by the Minister mentions at paragraph 3,

“improving opportunities for Reserves to commit more to make more effective use of all their knowledge, skills and experience”,

but the Bill is about Regular Forces and the reserves do not even get a mention in it. Perhaps the Minister can deal with this in his winding up.

I turn to other points to be dealt with by secondary legislation and instructions. How far will an individual who has taken his or her leave of absence remain subject to Armed Forces law? Are they deemed to be transferring to the reserves pro tem or do they remain regulars? Presumably pay, allowances and pension entitlements will all have to be recalculated. Will service medical and/or dental support be available? It is envisaged, is it not, that individuals will be covered if they are injured while away and will be entitled to the full equivalent compensation as if they were on full-time service? Will continuous occupation of service accommodation be allowed? Paragraph 20 of the Explanatory Notes refers to protecting,

“regulars from being separated from their permanent place of residence for prolonged periods”.

How is a “permanent place of residence” to be defined? To give confidence in approving the Bill, which lacks all such detail, it would be helpful in Committee to have draft examples of the intended further legislation, Defence Council Instructions and/or Queen’s Regulations.

Finally—I say this just to avoid any misunderstandings —the Bill, as I read it, is solely about the entitlement of a Regular Forces individual to apply for and make use of flexible working. It cannot be treated as a sort of Trojan horse that would allow the MoD or a senior budget holder to transfer a number of individuals, or even a unit, on to it as a savings measure to reduce the pressure on the defence budget at a particular moment; or even to defer or delay an individual’s return to full-time service as an economy measure—I stress that I do not read this into the Bill. The initiative about starting and ending this break rests with the individual, not their service. Is that correct? For the avoidance of doubt when it comes to subordinate legislation, an assurance now that the Bill is not a potential Trojan horse would be most welcome.

Armed Forces (Flexible Working) Bill [HL]

Lord Craig of Radley Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 12th September 2017 Grand Committee

Moved by

[Lord Craig of Radley]

1: Clause 1, page 1, leave out lines 6 and 7 and insert—
““(ha) enabling a person serving with a regular force—(i) to serve on a flexible basis; or(ii) to request periods of unpaid leave of absence;”, and”

[Lord Craig of Radley (CB)]

My Lords, I shall speak also to Amendments 2, 3 and 5, which are in this group. The amendments in this group are tabled in my name and those of my noble and gallant friends Lord Boyce and Lord Walker, neither of whom is able to be present today, but I speak on their behalf.

As I suggested at Second Reading, I question the sense and the potential for misunderstanding and for belittling the reputation of the Armed Forces if the phrase “part-time” is specifically used in the mixed and more flexible working arrangements. Could a better, less questionable word or phrase be used instead? First, let me confirm my acceptance in principle of flexible schemes which are viable, enjoy service support and do not detract from the operational 24/7 capability of the Armed Forces.

The first sub-paragraph of Amendment 1, sub-paragraph (i), seeks to retain the general concept of flexibility without specific reference to “part-time”. As the Minister has explained, the purpose of this short Bill is specifically to sketch out an additional flexible working scheme, described as serving on a part-time basis. Even so, it was notable that in his opening 10-minute speech at Second Reading, the Minister mentioned “part-time” only once, but he used “flexible” and “flexibility” at least 17 times, so it seemed worth reflecting that balance by referring to flexibility in a general way. It could be the basis for introducing further types of flexible working in the future.

The second provision of this amendment is to promote the use of unpaid leave of absence as an alternative approach to part-time. In his letter of 21 July, the Minister made specific reference to existing use of unpaid leave for flexible working. It said:

“Options already available for flexible working include both working patterns and the use of paid and unpaid leave”.


At present I am unclear about what so distances this Bill’s part-time basis from these other examples.

The Minister described “part-time” at Second Reading and in his letter of 21 July. In his speech he said:

“Service personnel will be able to temporarily reduce the time they are required for duty—for example, by setting aside one or two days a week”.—[Official Report, 11/07/2017; col. 1176.]


In his letter, he referred to women starting a family or those who wish to undertake long-term studies. These suggest to me a variety of periods and lengths of approved absences and—in part—appear to be more widely drawn than civilian-style part-time working. Fact sheet 2 also states that periods would be limited,

“to no more than 3 years at any one time”.

Will the request for absence be measured in reducing the 24/7 commitment to, say, 24/6 or 24/5, for example, over a period of weeks or months? A member of the Armed Forces does not sign up to work so many hours in a week. Would it not be confusing to measure “part-time basis” by a reduction in the number of hours worked? The commitment is to be available for service 24/7.

The Minister has stated that “part-time basis” would be of a different order to the existing forms of unpaid leave, but that is difficult to accept given the Minister’s examples of existing flexible working schemes and those in the fact sheets. Indeed, for clarity, a different definition of part-time service in Section 376 of the Armed Forces Act—definitions applying for purposes of the whole Act—would, I believe, be necessary if this subsection (2)(a)(ha) were ever inserted. Does the noble Earl agree?

Whatever the length and periods of absence, the noble Earl suggests that it is unlikely to involve much more than a thousand or two individuals at any one time. The noble Earl says:

“In practice, these new options will be temporary, limited to defined periods”.—[Official Report, 11/7/17; col. 1175.]


Surely this is so small scale; can this new scheme not be brigaded with other unpaid leave of absence arrangements? The Committee is familiar with the problems of unexpected consequences following enactments. Are there foreseen but undisclosed consequences for the Armed Forces Act which this Bill is to amend? The House has been assured that there is no intention to achieve savings in defence expenditure by this measure. Of course I accept that assurance, but it can only be for this Administration. The Armed Forces Act amended by this Bill will be renewed annually and re-enacted quinquennially into the foreseeable future. The Committee needs to be very satisfied that there is no devious hostage to fortune secreted in this Bill. To conclude on Amendment 1, leave is a well-understood and established arrangement for the Armed Forces, whether as a term for a holiday from work or a break from duties. Its meaning and purpose has been expanded to cover other types of absence, both paid and unpaid—even so-called gardening leave. Why complicate matters, and risk disparaging reactions and misleading reporting, by introducing a concept that suits working arrangements for civilian employment, with a working week of, say, 38 or 40 hours, but is alien to the fundamentally different concept of a commitment to 24/7 service? I expect that the noble Earl will try to justify the distinction that he seeks to draw between “part-time basis” and “unpaid leave”. A lot has already been said and written. I hope that other noble Lords will see merit in the “unpaid leave of absence” descriptor for this small addition to flexible serving arrangements and will speak in support of Amendment 1.

I turn to Amendment 2. When checking what was to replace Section 329(2)(i) of the Armed Forces Act, I found that this subsection in the Act provides for,

“enabling a person to restrict his service to service in a particular area”.

This Bill’s replacement submission provides for,

“enabling a person’s service with a regular force to be restricted”.

“To be restricted” to service in a particular area: why is this significant change being proposed? The original wording seemed to be in tune with assurances given at Second Reading which indicated that the flexible initiative lies with the individual, not the Ministry of Defence. I refer to my earlier comment about the risk of untoward outcomes from this legislation. The Committee should learn why the original phrasing has been replaced. Might it become a convenient handle with which to enforce reduced service or as a savings measure at some future date? I commend Amendment 2 to avoid this trap.

Amendment 3 proposes deleting the phrase,

“to be subject to other geographic restrictions”.

It has been suggested that this is to arrange for the individual not to be separated from their normal place of residence. Why cannot this be included in the meaning of the phrase “service in a particular area”? It seems an unnecessary complication. The purpose of this probing is to seek a fuller explanation of the proposed geographical restrictions. How would they assist individuals more easily to combine military and private commitments? Why are they not satisfactorily covered by the existing phrase,

“service in a particular area”,

which, as I suggested, could include location of family accommodation? I also note that the wording of Section 329(2)(j) says that a person may be required,

“to serve outside that area … not exceeding a prescribed maximum”,

but the replacement paragraph makes reference only to serving outside a “geographic restriction”, not a particular area. Why is the latter omitted by the Bill and said to differ from the former?

Finally, on Amendment 5, I questioned the use of the word “right” in new subsection (3A). The only reference to “right” in Section 329 of the Armed Forces Act is in subsection (3), which refers to,

“any right conferred … by … subsection (2)”,

which includes paragraphs (i) and (j), which this Bill seeks to replace. Why is it not satisfactory to rely on this overarching, less-deterministic phrase rather than introduce into Section 329 of the Armed Forces Act subsection (3A) with a specifically identified and explicit right applying to only three of 10 paragraphs in subsection (2)—a right that the noble Earl admits in his letter of 21 July is not absolute? Fact sheet 2 says that personnel will not have the right to work under the new flexible working arrangements. This amendment seeks an alternative approach to the matter of rights conferred while retaining the varied and other circumstances of new subsection (3A). I beg to move.

[Baroness Jolly (LD)]

My Lords, I shall speak to Amendment 14 in my name and that of my noble friend Lady Smith of Newnham, who, because of the Statement immediately after Questions, has got herself in the wrong place at the wrong time and has had to go into the Chamber. It is a very straightforward amendment. It asks for information to be provided by the Defence Council at least a year in advance to all members of the Armed Forces, giving them information about the scheme, how it will operate, how to apply and what alternative forms of flexible working are available.

--- Later in debate ---

[Baroness Burt of Solihull (LD)]

My Lords, I will just comment on Amendment 5. The noble and gallant Lord, Lord Craig, challenged the use of the word “right” during the pre-meeting we had in July. The idea here is that we relinquish the principle of having a right in favour of a “working arrangement”.

Of course, we all understand that rights in this context can never be absolute. The Minister made that comment in his response to questions raised in the meeting. But the protections that are afforded to regulars will give rise to some legal rights, as the Minister has said. These regulations give enlisted regulars the right to apply for part-time working or geographically restricted service. Refusal of that request will give rise to a right of appeal. To my mind, the meaning of that is absolutely clear. I suggest to the Committee that this should not be fudged.

[Lord Craig of Radley]

If the noble Baroness reads carefully Section 329(3), “any right” is referred to and that refers to all those in Section 329(2). The amendment does not remove all rights. It relies on the existing “any right” in Section 329.

[Baroness Burt of Solihull]

I am grateful to the noble and gallant Lord for that clarification. However, I would still suggest to the Committee that substituting the principle of a right for that of a working relationship in any context in which it occurs in these new elements of the Bill would not be helpful at all. As I have said, it would fudge the issue. I urge the Minister to reject the amendment.

--- Later in debate ---

[Earl Howe]

Certainly. Although that is not the whole rationale, the provisions that we are proposing to introduce are designed to be family-friendly—for example, for women considering starting a family or those with caring commitments, or those who are bringing up a family and, for any reason at all, there are personal circumstances that create difficulties for them. That could be a very good reason for somebody to apply to work part-time on a temporary basis. So I agree with the noble Earl.

[Lord Craig of Radley]

My Lords, I thank the noble Earl very much for what he has said. I am not sure that I followed it all completely so I look forward to reading it. I would just make one or two comments, if I may, at this stage.

On Amendment 1, the noble Earl’s addiction to “part-time basis” and part-time service is clear, but I am not sure that I understand why it has to be in primary legislation. If the Government want to have a number of flexible working arrangements, most of which are already in place and have been put there as a result of secondary legislation or Queen’s Regulations, why does this particular one have to be singled out, causing the amount of exposure that worries a great number of us?

On the amendment dealing with “restrict” and restrictions, I am still uneasy. Section 329 of the 2006 Act provides for,

“enabling a person to restrict his service to service in a particular area”,

whereas the amendment says very precisely,

“enabling a person’s service with a regular force to be restricted”.

It seems to me that that can put the individual in a position where he is being told that it will be restricted rather than he saying, “I would like to do this form of restricted service”. I think that that needs to be looked at very carefully, and I will look at exactly what the Minister said on the point.

The other point is on rights. Clause 1(3) refers to,

“A right conferred on a person by virtue of subsection (2)”—

and subsection (2) will include (2)(ha), (2)(i) and (2)(j). So it seems to me that the overarching new subsection (3) gives you the right that you were looking for. Therefore I suggest that we can drop new subsection (3A).

[Earl Howe]

My Lords, I would be very happy to write to the noble and gallant Lord on all those points—in so far as they were not made clear in my original response—and in particular on why we need primary legislation, and perhaps explain further the reasons why we think the Bill is correctly worded in this clause. I hope that the noble and gallant Lord will allow me to do that between Grand Committee and Report, and I will of course copy in noble Lords to that correspondence.

[Lord Craig of Radley]

My Lords, at this stage I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Armed Forces (Flexible Working) Bill [HL]

Lord Craig of Radley Excerpts

Report stage (Hansard): House of Lords
Wednesday 11th October 2017 Lords Chamber

Moved by

[Lord Craig of Radley]

3: Clause 1, page 1, leave out lines 6 and 7 and insert—
“(ha) enabling a person serving with a regular force to take breaks from full-time service subject to prescribed conditions;”, and”

--- Later in debate ---

[Lord Craig of Radley (CB)]

My Lords, Amendment 3 stands in my name and those of my noble and gallant friends Lord Boyce and Lord Walker. At Second Reading and in Committee, the Minister explained that the Armed Forces have been losing—or may lose—individuals of experience with good professional and personal qualities because they face unmanageable conflict between the 24/7/52 commitment to their service and the personal, private demands of a temporary nature in their daily lives. Faced with these difficulties, the individual may, albeit reluctantly, resign and leave their service. Training a replacement—let alone developing experience and expertise in the new recruit—is costly and takes time. So long as operational capability is maintained to provide opportunities for an individual to take breaks in their service, this could be described as “win-win”: the individual is more able to manage pressing private commitments; their valued personal and professional qualities and expertise are not permanently lost to their service; the cost of training a new replacement is avoided; and the pay foregone while individuals are away on their break benefits the defence budget.

The proposals have the backing of today’s senior leadership in the forces. We accept that—it is win-win. Our objection is to describing this novel type of flexible working—and amending the Armed Forces Act 2006—using the term,

“serve … on a part-time basis”.

It can rightly be argued that “part-time” is a useful and honourable form of employment in civilian occupations. But this phrase, and the unavoidable and inevitable categorisation and labelling of service individuals as “part-timers”—as used in civilian settings of weekly hours’ work—is inimical to the concept and ethos of military service.

Everyone who is on full-time service serves the Crown 24/7/52—they are not employees. Surely it is wrong to place individuals who are prized for these qualities, and whom their service wishes to retain, at risk because of the use of this phrase of being classified by some colleagues as lacking full commitment to their service. Moreover, might it not encourage some of these individuals and others to believe that their service is content for them to engage in part-time work in civilian employment as well, knowing that they are protected from any recall apart from a national emergency? Is this what the Minister and the MoD expect and accept? If not, how should we avoid it as an outcome of this approach?

Following Committee, the Minister readily agreed to set up a meeting which the noble and gallant Lord, Lord Boyce, and I had sought with the Bill team. But there was no meeting of minds. The Minister’s subsequent follow-up letter to me on 29 September—copied to others and put in the Library—said that the phrase “part-time” had been used in previous Armed Forces Acts, so seeking to reassure that the use of the phrase was not unprecedented. He also said that the House could not amend the Long Title, which contains the term “part-time”. Although given in good faith, this weak defence of the use of “part-time” proved to be misleading and inaccurate. When I checked, I could not find the term “part-time” in the Armed Forces Act 2006, or in any of the previous three single-service Acts—apart from one reference. That reference—in the Army Act 1955—is to a definition of “part-time” contained in the National Service Act 1948.

The 1948 definition referred to a serviceman’s seven-year commitment to be a member of a reserve force following immediately after his full-time national service. This was described as “part-time service”—“full-time service” being national service. Incidentally, this section specifically excluded these national servicemen from the provision in that section of the Army Act 1955. This now historic example bears absolutely no relation to the current use of the phrase. Maybe this is not the only previous use of “part-time” in Armed Forces legislation. However, lacking any formal legal definition, and given the changing uses of the words “part-time” over the years, surely it is wrong to use such a phrase to amend primary legislation in what appears—certainly to me—to be a sloppy and questionable way.

The Minister stated as an example of this flexible scheme that the individual might take one or two days a week away from their service duties. But might it be that more days off in a week, but not every week, would better suit the individual’s circumstances while still being acceptable to their service authorities? This amendment therefore concentrates on the idea of taking breaks from full-time service rather than on working weekly on a part-time basis. Surely it would be better, as this amendment proposes, for both the individual and their service to enable breaks from full-time service rather than to serve on a part-time basis. Eligibility, application and other rules and regulations could be set out as already proposed, and conditions prescribed in subordinate legislation.

This approach is positive. It concentrates on what the individual is seeking rather than on the undefined implications of the words “part-time”. These individuals are so valued by their service that they are being singled out to receive special treatment and dispensation from the full-time service obligation of their contemporaries. Our amendment avoids any danger of labelling these prized individuals as statutory part-timers, which might expose them and their service to inappropriate and demoralising treatment by some colleagues or by those who might seek to disparage the good name and full commitment of the Armed Forces. Of course, it can be argued that this should not happen. However, the issue surely is not whether it does but that the risk that it might is not run.

On the issue of the Long Title in Amendment 11, which is in this group, we have taken advice from the clerks. The Companion guidance is that a Long Title may be amended if the content of the Bill is changed during its passage. This verges on simple common sense. For completeness, we have tabled Amendment 11, but its consideration of course will follow only from Amendment 3.

We hope that what I am afraid is the obdurate resistance to the advice and recommendations expressed at Second Reading and in Committee by some experienced individuals will be reconsidered and that the Minister will agree to further discussion on a better-expressed approach and statutory wording to enable the introduction of a worthwhile flexible concept. I beg to move.

--- Later in debate ---

I therefore argue that the noble and gallant Lord should allow his fears to be allayed. For the reasons I have set out, I firmly believe we should let the language of the Bill remain intact. I hope that the noble and gallant Lord, on reflection, will feel similarly.

[Lord Craig of Radley]

My Lords, first I thank all those who contributed to this important debate. In his defence, the Minister has returned very frequently, as he did in Committee and earlier, to describing what is going to happen for the individual. That is all very important and very worthy, and I am not questioning that—none of us is. That is not where we are coming from. The issue is about the use of “part-time” in primary legislation when the phrase has no legal meaning and has, over the years, changed in its interpretation. How will it remain absolutely the same as it is today in 10 or 15 years’ time, as he suggested, when it will by then be part of the Armed Forces Act 2006, where it will remain as a term of service? I accept that there are criticisms, which need to be looked at, as to exactly what we have proposed. But I was sincerely hoping that there would be a further chance to examine between us the way in which this extra type of flexible working can be provided for in law. Clearly he is not prepared to move even in that direction so, with reluctance, I intend to test the opinion of the House.

Armed Forces (Flexible Working) Bill [HL]

Lord Craig of Radley Excerpts

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

[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.

[Lord Boyce (CB)]

My Lords, I remain to be convinced about the need for the Bill. The services already have an ability to operate flexible working. I lament, and certainly remain dismayed by, the continued use of the expression “part-time” to characterise the nature of what the Bill entails.

I recognise the amendment on this point was defeated on Report, but it required a Government three-line Whip to defeat the many excellent arguments by protagonists in favour. It was hardly a moral victory for the Government. Since Report, the senior and junior servicepeople I have spoken to have been equally appalled. Dislike for the expression “part-time” will be felt in particular by those who have requested no geographic separation yet who continue to work full-time. They will also be called “part-time” people even though they are working full-time. How does the Minister explain that? I really believe that a mistake has been made here and I would be grateful if the Minister could confirm that the Chiefs of Staff explicitly support the use of the expression “part-time”.

On a separate subject, I would be grateful if the Minister could comment on whether the ceilings for manpower numbers will take into account the provisions of the Bill. In other words, if the full scope and feasibility of flexible working for serving members of the Armed Forces is to be realised, there must presumably come a point where the current mechanism for accounting for liability—headcount—gives way to full-time equivalence.

The Bill’s implementation will have to be handled very carefully if the expectations of service men and women are not to be falsely raised. As the Minister said on Report:

“We are not talking about large numbers: we expect only a modest number of our people to either work part-time or restrict their absence from their home bases”.—[Official Report, 11/10/17; col. 250.]


In the case of the Royal Navy—which is extremely tautly manned and, constrained by the government-imposed headcount, short of people anyway—that is likely to be very modest indeed. For example, we need to bear in mind that 80% of junior ranks are in seagoing billets. It is difficult to see many applications for time away being approved. I therefore urge the Minister to ensure that the Bill is launched most carefully, and without fanfare and overpromising.