Armed Forces (Covenant) Regulations 2022

Lord Craig of Radley Excerpts

Tuesday 18th October 2022 Grand Committee

[Lord Craig of Radley (CB)]

My Lords, this is a very detailed piece of work, all 73 pages of it, and I commend the efforts and industry of all those involved in preparing it for publication. But this covenant concept had its origins as far back as 2000, and even before; it was very much championed in the mid-noughties by the noble Lord, Lord Dannatt, when he was Chief of the General Staff.

In 2007, the Government recognised that all three services should be considered. They produced a Command Paper, CM 7424, dated 1 July 2008, The Nation’s Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans. It opened with an enthusiastic message of intentions and promises, signed by the then Prime Minister Gordon Brown. However, in spite of the Command Paper’s promising title, his Government stopped short of legislation and sought to encourage local authorities, service charities and private businesses to participate voluntarily. It took the incoming coalition Government, while encouraging the voluntary approach, to introduce a statutory mention when updating the Armed Forces Act 2006.

As someone who has tabled or supported amendments about the covenant in the relevant 2011 Act, and in subsequent quinquennial updates of the 2006 Act, I have become somewhat involved with pushing the covenant’s progress and development through statute. But one needs a surgeon’s magnifying spectacles to discern the glacial progress, over a quarter of a century, to get even as far as today’s incomplete commitment. In 2011, all that the Government proposed was a minimalist inclusion in statute. It was to add a single-line clause requiring just an annual report to Parliament under a heading “Miscellaneous” in an identically named “Miscellaneous Part”, near the back end of that 350-page Act and immediately following Section 359. That section pardoned World War I servicemen executed then for disciplinary offences, recognising these deceased veterans as victims.

As a result of my objections, and following negotiations with Ministers in the Summer Recess, a new Part 16A headed “Armed Forces covenant report” was created. This gave the covenant the greater visibility it deserves in legislation. However, the Government then resisted my suggestion at the time that the central heading should be “Armed Forces covenant” and not “Armed Forces covenant report”. I was quietly amused to note that the Government introduced that semantic change in their amendments last year.

I was also pleased to see reference in paragraph 14 of the Explanatory Memorandum to my specific amendment which ping-ponged last December, leading to the Government’s undertaking to complete a report on the operation of the covenant duty next year. In particular, it will consider whether central government and any of its functions could usefully be added. The noble Baroness will need no reminding of the importance that I attach to this aspect of the review.

I was also struck that in paragraphs 1.31 and 1.41 of the statutory guidance, in section 1J and headed “the Armed Forces community”, “veteran”, when applied to former members of the Armed Forces, meant that they were in scope of the duty only if they are ordinarily resident in the UK. I accept, as a consequence of those authorities listed to exercise this duty all being those which have no overseas function, that that is true. But at all costs it must not be turned on its head and misconstrued as suggesting that classification as a veteran depends on being ordinarily resident in the UK.

Looking to the future, if central government were to have this duty, as I hope, a veteran and former member of His Majesty’s Armed Forces who has chosen to live abroad must lie within central government scope. Attempts to define veterans by location are wrong and would be better avoided. Even the definition used in the guidance is unfortunate if it causes confusion or upset to veterans, wherever they live. There is a duty of care to those who have served in the Armed Forces and retired—in agreed language, veterans. They must never be geographically shut out of the approved scope of that duty, to which they become entitled by statute; I hope that the Minister agrees. However, I support the SI.

[Baroness Smith of Newnham (LD)]

My Lords, it is a pleasure to rise after the noble and gallant Lord, who brings a wealth of expertise to this afternoon’s debate on this statutory instrument. Like him, I am pleased to see the guidance and to have this opportunity to discuss the instrument. Also like him, I note that there are still some gaps in the legislation.

As I read through this statutory instrument, my mind turned back in particular to the 2021 Act and the fact that, at various points during its passage, many of the noble Lords and noble and gallant Lords who rose to speak asked about the role of central government. Although we acknowledge the importance of imposing duties on local authorities, I believe there is still a question about what duty we put on central government. At the moment, the legislation talks only about consultations with the devolved Administrations and certain departments: the Department for Education, the Department of Health and Social Care and the Department for Levelling Up, Housing and Communities. Obviously, that speaks to the three core aspects of the duties—education, healthcare and housing—but what thought have the Government paid to whether those duties should be widened to central government more generally? I ask this precisely because, as the noble and gallant Lord, Lord Craig of Radley, pointed out, to the extent that the duties and benefits of the Armed Forces covenant relate to veterans, they should not be determined by their geographical location. It is wholly wrong to give somebody rights only if they are resident in the United Kingdom. If they are veterans who have served with His Majesty’s Armed Forces, they should be within scope.

Beyond that, I have a couple of specific questions associated with this statutory instrument. It is absolutely right that the Government are taking a broad view of what it means to be part of a family, going beyond the traditional view of a spouse and children of a traditional marriage. There are now many other types of family that would be affected, so that view is clearly right, but can the Minister explain a little more about how the Government would interpret, and how service providers should be expected to interpret, Regulation 3(3), which states:

“For the purposes of this regulation, references to A’s spouse or civil partner includes … a person whose relationship with A is akin to a relationship between spouses or civil partners”?


At one level, that might seem self-evident. However, if we are looking at local authorities being requested to find housing, how established does the relationship have to be? How will it be evaluated and what guidance will be given to local authorities when looking at housing provision, for example?

Similarly, with a wide understanding of children, stepchildren and other relatives, we could see quite wide sets of family relations. To what extent will that be considered in looking at housing, for example? If stepchildren arrive every other weekend, should they be taken into consideration when looking at local housing provision? Similarly, how extensive a group of family members might be considered for education and school waiting lists? What are the implications of that?

Regulation 3(3)(b) talks about

“a former spouse or civil partner or a person whose relationship with A was formerly akin to a relationship between spouses or civil partners.”

Again, how will that be evaluated? It might seem quite clear cut if somebody was part of an established relationship for 20 years, but how will a former partner who has been divorced, remarried and has not suffered as being part of the Armed Forces family in quite the same way be evaluated when people say, “We think we should be covered under the Armed Forces covenant”?

None of this is intended to sound churlish in any way; it is to probe the Government about how service providers are meant to interpret this. It is right that we should be generous and expansive in the way that we interpret the family, but it is also important that there are no ambiguities in the proposals put forward.

Finally, I could not see anything in the points on healthcare about dentistry. Maybe I missed it, but one of the big issues at the moment is the difficulty of people finding NHS dentists. If that is true for stable members of the population who do not move very much, how much truer will it be of the Armed Forces and their families? Is dentistry included, and if not, could it be?

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, I thank noble Lords for what admittedly has been a fairly short debate but not in any way lacking in quality and penetrating questions, which is entirely what I would expect from the contributors. I shall deal first with the comments of the noble and gallant Lord, Lord Craig. I thank him for his very useful historical context of the evolution of the covenant. It is worth remembering the journey that the covenant has travelled. I accept that progress may at times have been somewhat plodding, but I feel that, in recent years, we have got to a good place. These regulations are the manifestation of the important progress that has been made.

I pay tribute to the noble and gallant Lord, Lord Craig, for his perseverance in drawing attention to the role of central government and whether it should be brought within the ambit of the covenant statutory duty. I remember that we had informed and interesting exchanges at the time the Armed Forces Bill went through this House. We certainly felt that this was not an issue that should be summarily dismissed as being without merit. Our concern was that we were already biting off quite a lot in terms of what we were introducing in that Bill and in what was to be further covered by delegated legislation, and we did not want to bite off more than we could chew. The provisions now to allow for a review are meant to reassure, and I shall say a little more about them.

The review will consider the roles of the UK Government and the devolved Administrations in conducting the functions already in scope of the duty. It will also consider the extent to which they currently consider the covenant principles, as well as the benefits and costs of bringing them into scope. As the noble and gallant Lord is aware, the reason why I resisted his persuasive blandishments to include the scope of central government in the Armed Forces Act was because we did not think that it was quite within the scope of the original Bill. The Government are responsible for setting the overall strategic direction and national policy but they do not directly deliver the relevant healthcare, education and housing services to citizens.

Let me give your Lordships a little more information on the review itself. Members of Parliament will have the opportunity to assess and comment on the review in the debate on the 2022 covenant report. The Government have been working with stakeholders to establish an open and transparent evaluation process by which to investigate the evidence about whether new policy areas should be added to the scope of the duty; that point was specifically raised by the noble Lord, Lord Coaker, who was naturally interested in what criteria might be deployed to assess this. Potential additional functions will be assessed against clear and robust criteria that have been established and agreed with covenant stakeholders in order to provide advice to the Secretary of State, with whom the final decision rests.

To clarify, a blanket inclusion of all UK Government and devolved Administration bodies would not be appropriate to include within the list of specified bodies to which the duty applies because the “due regard” duty applies to specified functions that are precisely defined in law. Due to the broad-ranging work of the UK Government and the devolved Administrations, it would be impractical to seek to define precisely such functions for these bodies.

One of the questions asked by, I think, the noble and gallant Lord, Lord Craig, during our debates on the then Armed Forces Bill concerned why the duty was not extended to central government because it has a duty of care to the Armed Forces. However, the purpose of the covenant duty is to raise awareness among providers of public services of how service life can disadvantage the Armed Forces community in accessing key public services. That is why we have focused on these three areas of health, education and housing. As the noble and gallant Lord is aware, central government is directly responsible for the Armed Forces and the MoD has always looked after the welfare of service personnel. As he knows, there are various ways in which the Government can be held to account, from the requirement for Ministers to appear at the Dispatch Box and explain what has been happening to the facility for Members to put down Questions and seek debates. There is a variety of methods available for parliamentarians to call the MoD to account for what it has been doing.

Accompanied by the noble Baroness, Lady Smith, and the noble Lord, Lord Coaker, the noble and gallant Lord raised the issue of central government. I tried to cover the points that were made in my comments addressed to him. One other point that he mentioned concerned why the guidance refers to those who are ordinarily resident in the UK. The “ordinarily resident in the UK” restriction applies only to veterans. This restriction on veterans is in the Act, which is why it is in the guidance. The guidance clearly says that serving personnel are in scope

“wherever they are located—in the UK or abroad.”

Veterans who live overseas and are having issues accessing public services due to their service career will find that those issues are best raised with the relevant authority or embassy in the area in which they live because such services fall outside the responsibility of the UK Government.

[Lord Craig of Radley (CB)]

Mentioning embassies in that sense seems to bring in the possibility of central government interests and the FCDO.