Armed Forces Commissioner Bill (Third sitting)

Mark Francois Excerpts

Committee stage
Thursday 12th December 2024 Public Bill Committees

[Helen Maguire (Epsom and Ewell) (LD)]

I beg to move amendment 7, in clause 1, page 2, line 2, at end insert—

“(5A) The Commissioner must—

(a) uphold and give due regard to the principles and commitments of the Armed Forces Covenant when carrying out their functions;

(b) monitor and report on compliance with the principles and commitments of the Armed Forces Covenant in all areas of their responsibility.”

This amendment would require the Commissioner to uphold and abide by the principles of the Armed Forces Covenant when carrying out their functions.

The armed forces covenant is

“a promise that together we acknowledge and understand that those who serve or have served in the Armed Forces, and their families, including the bereaved, should be treated with fairness and respect in the communities, economy, and society they serve with their lives.”

I feel that it is important for the covenant to be incorporated into the Bill, and so far I do not see any reference to it. It is a binding commitment between the armed forces and the Government, and I would like to see it included in the Bill.

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

It is a pleasure to serve under your chairmanship this morning, Mr Efford. I will make a brief contribution to say that we take it as axiomatic that the Armed Forces Commissioner will be mindful of the principles of the armed forces covenant throughout the performance of his or her duties. There may be an occasion later in the debate when there is some conflict between those principles and what the Government are currently proposing, but we will highlight that when we get to it, to remain in order.

In essence, it seems to us entirely logical that the commissioner should be mindful of the principles of the covenant, as they are important. The two key principles, for the record, are that armed forces personnel and their families should suffer no disadvantage relative to the civilian population by virtue of their service and that there should be special consideration for armed forces personnel and their families, especially the wounded and the bereaved, in certain circumstances. Having placed those on the record, I am sure the Minister will not demur; hopefully, we can deal with this amendment fairly promptly.

[The Minister for the Armed Forces (Luke Pollard)]

It is good to see Members from both sides on this Committee for an important piece of legislation. I thank the hon. Member for Epsom and Ewell for her amendment. I agree that it is important that we place prominence on the armed forces covenant. The amendment would require the commissioner to have due regard to the covenant principles as part of their general functions.

As the Committee will know, the armed forces covenant recognises the unique obligations and sacrifices made by those who serve in the armed forces, whether regular or reserve; those who have served in the armed forces; and their families. The Government are fully committed to the armed forces covenant; indeed, our election manifesto included a commitment to place the covenant fully into law. As the hon. Lady will be aware, we will bring that forward as a provision for consideration in the Armed Forces Bill, probably in roughly two years’ time.

An important aspect of the covenant is that it applies to both serving and former serving members of the armed forces. The Armed Forces Commissioner is very much focused on the serving community and their families. It will be perfectly proper for the commissioner to consider covenant issues where those relate to serving members of the armed forces and their families. I would imagine that those issues would be very much at the heart of what we mean by “general service welfare matters”, as outlined in the Bill. That will be within the remit of the commissioner, alongside the commissioner’s general function to promote the welfare of service persons and their families and to improve the public’s understanding of the issues.

[Mr Francois]

Much of the covenant is already enshrined in legislation, as the Minister probably knows; that was done under the previous Conservative Government. Since he mentioned it, will he explain to the Committee which elements of the covenant he believes are not already enshrined in law and therefore would have to be covered in the next Armed Forces Bill?

[Luke Pollard]

I am very happy to stray out of the lane of the legislation we are considering today towards legislation that we are not yet considering, if the right hon. Gentleman so wishes. As he will know, only part of the armed forces covenant is in law, with a special grip on local government. In our manifesto, we committed to put it fully into law. The Minister for Veterans and People is undertaking a cross-Government piece of work to identify precisely which clauses would need to be inserted into the Armed Forces Act to make that work.

Insertion into an Armed Forces Act is also relevant to the amendment of the hon. Member for Epsom and Ewell. As she will know, this Bill not a stand-alone piece of legislation: it seeks to amend parts of the Armed Forces Act 2006. Can I direct her attention to part 16A of the Armed Forces Act 2006? That is the part that deals with the armed forces covenant. She is right in the respect that the covenant is not explicitly mentioned in this Bill; that is because this Bill, when passed, will be inserted into that Armed Forces Act, which includes part 16A relating to the armed forces covenant. I hope that, on the basis of those reassurances, she will be able to withdraw the amendment.

[Helen Maguire]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[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.

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It is not necessary to include this additional provision in the Bill because it speaks to the entire spirit of the legislation before us today. Furthermore, the wording could introduce an element of subjectivity into the legislation, which would be difficult to measure. It is important that we always try to ensure our legislation is necessary, effective, accessible and certain. With that in mind, I would ask the right hon. Gentleman to withdraw his amendment.

[Mr Francois]

I welcome the Minister’s welcome for the amendment. I hope the Committee is doing the right thing here. We tabled it because the issue cropped up a lot in the public evidence session. By the way, I thought it was extremely useful to be able to have that. When I first came to the House, we did not have such sessions before our consideration of Bills. Perhaps this is teaching an old dog new tricks, but now, having seen that procedure in action, I can understand why it was introduced.

Trust and independence cropped up so often on Tuesday, so we thought it was important to table the amendment to get some of that on the record. I am grateful for the assurances that the Minister has given and for the spirit in which he has given them. I know that the hon. Member for Colchester is quite an expert in this subject, so I take the point about the drafting; however, it was a probing amendment from the outset and we thank the Minister for putting those assurances on the record. As he says, if ever the commissioner were challenged on the point of independence, he or she would be able to refer back to this debate in the Committee Hansard. With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Helen Maguire]

I beg to move amendment 6, in clause 1, page 2, line 10, at end insert—

“(5) The Secretary of State will, within 6 months of the passing of this Act, publish an intended timeframe for—

(a) the appointment of the Commissioner;

(b) the abolishing of the office of the Service Complaints Ombudsman;

(c) the commencement of operations of the office of the Commissioner.”

This amendment would require the Secretary of State to state when they intend to appoint a Commissioner and get the office of the Commissioner operational.

We have tabled amendment 6 because currently no time frame is set out in the Bill. We believe it is important for a time frame to be set out and we feel that the Government should be held to account on that. Otherwise, the process could continue for several years. We feel it is important for both the armed forces and the MOD to know exactly when the Service Complaints Ombudsman will be abolished and the commissioner appointed, and when the powers of the commissioner will take effect. At least setting out a time frame would have some strength.

[Mr Francois]

I think the amendment speaks for itself. I seem to recall that on Tuesday the Minister laid out a timeframe for the establishment of the commissioner and their office; from memory, I think he said that the intention was to have it up and running in early 2026. Perhaps, in the spirit of the hon. Lady’s amendment, he could say a bit more in his reply about the timing, and particularly about the interview process. I have a particular reason for asking that question, which I will come back to later.

[Luke Pollard]

I thank the hon. Member for Epsom and Ewell for moving her amendment. This legislation is a priority for the Government. We want to do this prominently, to provide a clear signal to our people and their families that their welfare matters are important and should receive a greater focus from the Government and the Ministry of Defence and therefore from the single services. At the same time, it needs to be done correctly.

I share the hon. Lady’s eagerness to make sure that the commissioner’s role is properly established and brought forward. We have not detailed the implementation timetable in the Bill; that would not normally be necessary in primary legislation. As the Committee will be aware, there are several factors affecting the commissioner’s appointment. Notwithstanding the role of the Defence Committee in pre-appointment scrutiny, the commissioner will be appointed following the passage of the Bill. Their role will be subject to a full public appointments process regulated and overseen by the Office of the Commissioner for Public Appointments. In addition, the intended timeframe will need to factor in the passing of the necessary secondary legislation.

We expect this process to continue in 2025. In parallel, we will be undertaking the necessary implementation to ensure a smooth set-up and transition from the current Service Complaints Ombudsman to the new commissioner’s office. It is important to stress that the team in SCOAF are doing a good job, and we should ensure a smooth transition into the new function for all the people working hard to support our armed forces.

I can therefore confirm that we anticipate that the commissioner’s office will be stood up in 2026, but I would expect Opposition and perhaps Government Members to table parliamentary questions throughout to investigate the process that we are undertaking.

It is worth saying that the full public appointments process will also undertake the necessary vetting and security clearances required for this role. That will further build the trust among armed forces personnel not only that the person appointed to the role is experienced, necessary and appropriate, but that they have the necessary vetting and security clearance to undertake a role on military bases in particular. I hope that the hon. Lady will take that reassurance and withdraw her amendment.

[Luke Pollard]

Last year, service morale fell to its lowest level on record, with only four in 10 of our armed forces personnel reporting being satisfied with service life. They reported that the impact on families and on personal life was the leading factor influencing the decision to leave our armed forces. This Bill is a deliberate and major step to strengthen support for our armed forces and the families who stand alongside them.

Clause 1 will establish and set out the functions of the Armed Forces Commissioner by inserting proposed new section 365AA into the Armed Forces Act 2006. It will also abolish the office of the Service Complaints Ombudsman. That is legislative language; the intent is to move it into the Armed Forces Commissioner’s office, but in parliamentary drafting terms the office is abolished. Other provisions of the Bill, which we will come to later, transfer the ombudsman’s functions to the new commissioner.

Subsection (2) of proposed new section 365AA will provide the commissioner with new functions to promote the welfare of service personnel and their families and to improve the public’s understanding of the welfare issues that they face; It will also provide the commissioner with the functions set out elsewhere in the Bill. Subsections (3) to (5) of proposed new section 365AA will give the commissioner the necessary freedoms to carry out their functions and meet their objectives, along with reference to any related restrictions. Subsection (6) introduces new schedule 14ZA, which sets out further detail on the establishment of the commissioner’s office.

Clause 1(2) will abolish the office of the Service Complaints Ombudsman. Clause 1(3) will repeal section 365B of the Armed Forces Act, which established the Service Complaints Ombudsman. Clause 1(4) introduces schedule 1, which will insert new schedule 14ZA into the Armed Forces Act, for those who want to follow it up in their bedtime reading.

[Mr Francois]

The Minister has summarised the clause very well. We understand the intent of the Bill. We said on Second Reading that we would be a critical friend to it, and hopefully that will play out today. Nevertheless, we support the principle of what the Government are doing, so there is no need to divide the Committee on clause 1.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Schedule 1

Armed Forces Commissioner

[Helen Maguire]

I beg to move amendment 5, in schedule 1, page 8, leave out lines 15 and 16 and insert—

“3  A relevant Parliamentary select committee will hold a pre-appointment hearing with the Secretary of State’s preferred candidate for Commissioner.

3A The select committee may hold a confirmatory vote on the Secretary of State’s preferred candidate for Commissioner.

3B Where a select committee has expressed a negative opinion on the appointment of the Secretary of State’s preferred candidate for Commissioner, the Secretary of State may not proceed with the appointment of that candidate without appearing before the select committee to address the concerns raised by the committee.

3C If the select committee maintains its negative opinion following the further appearance of the Secretary of State, the Secretary of State may not proceed with the appointment of that candidate.

3D Where a select committee has expressed a positive opinion on the appointment of the Secretary of State’s preferred candidate for Commissioner, including after a further appearance before the committee of the Secretary of State, the Secretary of State may recommend the appointment of the candidate to His Majesty.

3E The Commissioner is to be appointed by His Majesty on the recommendation of the Secretary of State.”

This amendment would mean that the Commissioner can only be appointed after appearing before a relevant select committee and obtaining its approval.

As numerous hon. Members have outlined, it is incredibly important that the role of the commissioner be completely independent and be scrutinised across the parties. We feel it is important for a parliamentary Select Committee to play a role in the commissioning process. It would allow cross-party consensus and would ensure that the commissioner, whoever they may be, is truly independent and can make the right decisions and examinations as appropriate.

[Mr Francois]

I declare an interest: I served on the Defence Committee for about seven years. Over the years, there has been a debate about the extent to which the Defence Committee and other Select Committees should have power over appointments in the relevant Department.

If I can draw a quick analogy, the United States Congress has a slightly different constitutional settlement from ours, but its Committees tend to be much more powerful than ours. They and their Appropriations Committee counterparts have what the Americans call line-item power, so they can increase or decrease the spending on a particular defence programme. Would that for one moment the Defence Committee had had that power. I see the Minister grinning quizzically at that.

[Luke Pollard]

For Ajax?

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[Mr Francois]

The Minister mentions Ajax. I did not, but as he did, we will read that into the record.

There were times when the Defence Committee would have dearly loved that power. Had we had it, certain programmes might have suffered a different fate. In parallel, there is another important difference between the American Committee system and ours.

[Pam Cox]

Will the right hon. Member give way?

[Mr Francois]

If it is about Ajax, gladly.

[Pam Cox]

The Committees are not comparable, are they? The American system of Select Committees is so different from ours that we are talking about apples and pears.

[Mr Francois]

They are not directly comparable, but as I was coming on to say, the American Committees have a much stronger power over appointments. To illustrate my point, some debates in the American media are about whether the new Defence pick that Donald Trump is advocating may or may not come under some challenge during congressional appointment hearings. That issue only arises because the Committee has a stronger power. Here, there is an increasing trend that a Committee is allowed to interview people and express an opinion, but ultimately it cannot say no.

We all agree that the commissioner will be a very important appointment, for all the reasons that the Minister has outlined. Getting it right is really quite important. In extremis, if the Select Committee were to decide, for some good reason, that a particular candidate were not suitable for the role, would the Minister support the idea of its being allowed to veto the appointment? If not, how does the Minister envisage the Defence Committee playing a part in the appointment of this very important person?

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[Mr Francois]

You think he’s being nice. He’s not really.

[Luke Pollard]

I am aware that there are other people in the room who table questions to us. I will choose some adjectives carefully in due course.

The point that my hon. Friend the Member for Dunfermline and Dollar made is a fair one. The senior appointments process is well established across Government. We enjoy good scrutiny of the process ourselves, as part of its oversight by the structures around the Cabinet Office. We and the previous Government have both focused on that to ensure that the process produces the right people.

I hope that the additional pre-appointment scrutiny by the House of Commons Defence Committee, as well as the seriousness with which the Government and the Committee take the matter, will provide even more robust scrutiny. I would be very happy, where appropriate, to respond to parliamentary questions throughout the process to reassure Members that it is being conducted in a manner that is not only timely but thorough, ahead of any pre-appointment scrutiny by the HCDC.

The spirit of the Bill is to engage Parliament more in the role of this commissioner and to ensure that parliamentarians can have just as much confidence in the role as I hope our armed forces can. The whole process is designed with that in mind. On that basis, I ask the hon. Member for Epsom and Ewell to withdraw her amendment.

[Helen Maguire]

I thank the Minister for providing the reassurances that I think the Committee needs in order to ensure that there is absolute scrutiny. It is good to hear that there will be pre-appointment scrutiny by the Defence Committee. We hope that that will ensure that the commissioner who is appointed is truly independent. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Mr Francois]

I beg to move amendment 9, in schedule 1, page 9, line 34, at end insert—

“(1A) The Commissioner’s staff must include a King’s Counsel, with responsibility for providing the Commissioner with advice on legal issues arising in the course of the Commissioner’s work of promoting and investigating general service welfare.”

This amendment would require the Commissioner’s staff to include a KC to provide legal advice to the Commissioner on legal issues arising in the course of their work.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 10, in schedule 1, page 10, line 33, at end insert—

“(1A) Financial assistance provided to the Commissioner by the Secretary of State must increase annually by a measure determined by the increase in the Consumer Prices Index 12-month rate published by the Office for National Statistics.”

This amendment would require the financial assistance provided to the Commissioner to increase with inflation.

Amendment 3, in schedule 1, page 10, line 39, at end insert—

“(3) The Secretary of State must ensure that the financial and practical assistance provided to the Commissioner is appropriate and sufficient to allow the Commissioner to carry out their functions.”

This amendment would require the Secretary of State to provide adequate financial and practical assistance to the Commissioner to enable it to carry out their functions.

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[Mr Francois]

For the convenience of the Committee, I will take amendments 9 and 10 in reverse order.

Essentially, amendment 10 is intended to ensure that the office of the commissioner is sufficiently well resourced to undertake its role effectively, independently of the Ministry of Defence. The explanatory notes to the Bill intimate that once the office is up and running, it will start off with a budget of approximately £5 million, as the Minister confirmed on Second Reading.

The Bill does not mandate a specific number of staff to assist the commissioner; it is not that prescriptive. Given that the role has a wider remit than that of the Service Complaints Ombudsman, it seems likely that more staff will be required to carry out the expanded function—not least because it will now include visits to service establishments, some of which the commissioner could be empowered to conduct on an unannounced basis, subject to certain safeguards, if they thought that the issues that they were examining merited it.

The purpose of amendment 10 is to reinforce the idea that the office should be adequately resourced by mandating the financial assistance provided by the Secretary of State, which is effectively the commissioner’s budget, should increase by at least real terms each year, defined using the consumer prices index measure of inflation, which is published by the Office for National Statistics. I hope that amendment 10 is relatively uncontroversial and that the Minister might even be tempted to accept it. We can but try.

Amendment 9 would mandate that at least one member of the commissioner’s staff be a King’s counsel.

[Luke Akehurst (North Durham) (Lab)]

It is an honour to serve under your chairmanship, Mr Efford. Would the right hon. Gentleman be able to give the Committee an idea of the annual cost of a King’s counsel, so that we can have an idea of what percentage of the proposed budget that would be? Why he is choosing to be prescriptive about the need for this particular element of staffing? That seems to contradict earlier pushes in amendments to safeguard the independence of the commissioner. If we are appointing a commissioner, surely we should trust them to determine the configuration of their staff.

[Mr Francois]

There are two questions there. On the first, the honest answer is that it depends on the KC. In my limited experience, different King’s counsels tend to charge different rates. One would hope that the commissioner would employ someone who was good at their job, so yes there would be a public expenditure cost.

If the hon. Gentleman will permit me, I am going to come in a moment to the exact rationale for why we have sought to mandate that at least one of the commissioner’s staff should be a qualified KC; he slightly pre-empts me. But I hope I can convince the Committee that there is a genuinely good reason for doing so and I am going to produce at least one real-world example. If that satisfies the hon. Gentleman, I will make some progress. Did the hon. Member for Portsmouth North, sitting next to him, also seek to intervene or have I inadvertently answered her question?

[Amanda Martin (Portsmouth North) (Lab)]

I will come to it afterwards.

[Mr Francois]

Okay, thank you.

We live in an increasingly litigious world, including the wider prevalence of so-called lawfare issues on the modern battlefield. Therefore it seems important to us that the commissioner should have access to senior legal advice in carrying out their duties. We believe that could best be provided by a qualified King’s counsel, perhaps specialising in areas of employment law and other matters that would relate to the welfare of armed service personnel and their families.

There is a live issue in the armed forces community: if they take life, which sometimes they are required to do in the service of the country, what are the legal implications for them, maybe even decades later? The issue is generally referred to as lawfare. Let me give a specific example of why this matters, Mr Efford. I am going to refer to a case that has concluded; I reassure you and your Clerk that the sub judice rule does not apply, I believe, because the case is over.

On 10 December, the BBC reported, under the heading “Ex-lawyer spared jail over false Iraq War claims”, that

“Phil Shiner was given a two-year suspended sentence at Southwark Crown Court after pleading guilty to three counts of fraud relating to legal aid claims made in 2007.”

For background,

“The former boss of Public Interest Lawyers was struck off by the Solicitors Regulation Authority in 2017 for pursuing false torture and murder allegations against British troops.”

The article continues:

“A lengthy inquiry into wider allegations of abuse at the hands of British soldiers established ‘beyond doubt’ that all the most serious allegations had been found to be ‘wholly without foundation and entirely the product of deliberate lies’.”

According to the National Crime Agency, Mr Shiner received around £3 million towards the cost of legal aid for the cases in which he was involved.

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[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.

[Amanda Martin]

You say that your amendment does not tell the commissioner that they should make the appointment, but it states:

“The Commissioner’s staff must include a King’s Counsel”.

Since there is a “must”, what you just said is not correct. If we agree to this amendment, we are saying that the commissioner, who we want to be independent, will not have the choice of who they include in their staff, as my hon. Friend the Member for North Durham mentioned. Your amendment says “must include”.

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[The Chair]

“You” refers to me in the Chair, not to the person opposite. Just a gentle reminder about that.

[Mr Francois]

The hon. Lady is right. The amendment says that the commissioner should make the appointment; I hope we have given the rationale for why we believe that is important. What sort of KC the commissioner employed, and how often they used them, would be a matter for the commissioner: they would still have some discretion and, as has been intimated, there are KCs and KCs.

But the principle of the amendment is that the commissioner should have access to senior legal advice because lawfare is becoming more and more of an issue for armed forces personnel. For the sake of brevity, I will not read into the record a very good article that appeared in The Spectator about why people are leaving the Special Air Service because of the issue. It is a problem for retention in the armed forces, particularly in certain units, and this is an attempt to acknowledge that.

[Michelle Scrogham (Barrow and Furness) (Lab)]

To refer back to what my hon. Friend the Member for Portsmouth North said, the amendment does say that the commissioner’s staff “must” include a King’s counsel. That would effectively tie the hands of the commissioner, firmly setting that budget. I would much rather that they had flexibility, so that they could choose who they wanted to serve within their staff; should they need a KC, they would be very welcome to get one. Including that they “must” would eat that budget, which could be used elsewhere if needed.

[Mr Francois]

I understand the hon. Lady’s question, and I do not want to get into an “angels on a pinhead” argument, but that member of staff could be part-time. It could be that on the staff of the commissioner is a qualified KC, but only brought into action when there is a specific legal aspect to be examined—they would not necessarily have to sit in their office five days a week waiting for a case to come in. If there was no work, then they would not necessarily be employed.

I accept that perhaps we should have put the words “part or full-time” into the amendment, but the key thing is that the commissioner would have access to a King’s counsel, even on a part-time basis, to deal with complaints that have a specific legal aspect, including aspects of lawfare. We did not mandate in the amendment that it had to be a full-time role.

[Terry Jermy (South West Norfolk) (Lab)]

I appreciate the point that the right hon. Gentleman is making about whether the role would be full-time, part-time or maybe just a few hours a week. But the fundamental issue for me is that the more restrictions or stipulations we mandate, the more we fundamentally influence the independence of the role, which was part of our open discussion on Tuesday. The more amendments, rules and procedures that we dictate, the more we weaken independence. Does he recognise that concern?

[Mr Francois]

I do, but I have a contrary concern. People are leaving the armed forces in greater numbers than are joining. The other day, the Minister said— he will correct me if I have this wrong—that for every 100 who join, 130 are leaving.

[Luke Pollard]

indicated assent.

[Mr Francois]

The Minister is nodding. We have a problem: our armed forces are shrinking. That is not necessarily purely for budgetary reasons; we are not going to get into the 2.5% of GDP discussion—I would love to, but I do not think the Chair would thank me for it. More are leaving than are joining and there are a number of reasons why. As a former Armed Forces Minister, I was commissioned by a previous Prime Minister to write a report on why people leave. It was called “Stick or Twist?”, because that essentially encapsulated the dilemma that service personnel and their families face. By the way, the decision to leave is usually a family decision—it is a kind of kitchen table conversation.

The overwhelming reason why they leave, as we have said, is the pressure of service life on family life. One reason why quite a few personnel are leaving now, however, is that they are worried about the legal implications of the work that they do and, bluntly, whether the Government have their back. That is becoming a bigger and bigger issue. If the commissioner is there to ensure the welfare of service personnel and their families, along the lines that the Minister articulated very well in the debate on clause 1 stand part, they are going to need some kind of legal capability to investigate those sorts of issues.

I take the points made by Government Members, but we are seeking to ensure that, whether it be full time or part time, the commissioner has the necessary legal firepower, for want of a better word. This comes back to the whole debate about trust; the service personnel need to be convinced that, if they have a worry or issue about lawfare, the commissioner is equipped to deal with it effectively. That is the spirit of amendment 10. I hope that the Minister will acknowledge that the issue is becoming an increasing worry for service personnel. Again, for the sake of brevity do not get me going on Northern Ireland veterans this morning. But this is a problem, and that is why the amendment was drafted.

I do not want to try the Committee’s patience, so, to summarise, we believe there is a broader issue here about the whole effect of lawfare on modern warfare—the effect it is having on both the recruitment and the retention of His Majesty’s armed forces. Having tabled the amendment to provoke a debate on that issue, and how the commissioner might help, I am very interested to hear the Minister’s response to a genuinely well-meaning suggestion.

[Helen Maguire]

On amendment 3, we feel that the financial and practical assistance of the commissioner must be absolutely appropriate. It is crucial that there is this resource, and that the commissioner can carry out the dual role of both promoting the welfare of service personnel and their families and improving public awareness of these issues. If those ambitions are to be met, alongside the existing responsibilities of the ombudsman role that are to be assumed into the commissioner’s remit, the commissioner needs to be properly resourced. That is why we feel that amendment 3 needs to be included in the Bill.

[Luke Pollard]

I am grateful for the amendments as they give me the chance to speak about a number of issues. I first turn to amendment 9, tabled by the right hon. Member for Rayleigh and Wickford. He said that the purpose of the amendment was to require the commissioner’s staff to include a King’s counsel to provide legal advice to the commissioner. I agree that the provision of quality legal advice to the commissioner is essential, and having the facility in house may well be something that a commissioner will want to specify when setting up their own office. I think it is right, however, that the commissioner should be able to make their own judgment about what type and what level of legal support they may require.

It is worth reminding the right hon. Gentleman that the commissioner looks at general service welfare matters and not the conduct of military operations, which I realise he is familiar with. I will come on to the other points that he raised subsequently, but it is worth saying that welfare matters are the commissioner’s main remit.

[Mr Francois]

If you were one of the service personnel who was put through hell by Phil Shiner, that would be a welfare matter for you and your family. I could read into the record stories of stress, worry and angst that armed forces personnel have had to go through, sometimes for years, at the hands of Phil Shiner and his law firm, so let us not be over-semantic about it, Minister. For many personnel and their families, this was agonising. It jolly well is a matter of service welfare, because of the effect that it had on many people, many of whom subsequently left the armed forces, effectively in disgust. It really is a matter of welfare, and that is why we tabled the amendment.

[The Chair]

Order. May I just say that interventions should be short?

--- Later in debate ---

[Luke Pollard]

The hon. Gentleman raises a fair question. As part of establishing the Armed Forces Commissioner’s office, it may be appropriate for the commissioner to say that they would like a certain level of military expertise, be it serving or in a veteran capacity. The commissioner could have that conversation with the Secretary of State. I do not think that we would immediately volunteer or immediately deny—that would be based on the recommendations of the commissioner and the dialogue about where that sits—but I refer the hon. Gentleman to the amendment that we are making in the Bill to remove the requirement for an officer to make a decision. In one respect, we are seeking to remove military roles from the SCOAF function that can be done by a civilian. It is appropriate to ensure that if any military support is given to any part of the wider MOD family, we make the correct decision about whether it should be a military or civilian role, so we can ensure that we use the military in roles where they have the biggest impact in respect of our national security. However, I totally understand the hon. Gentleman’s point.

The right hon. Member for Rayleigh and Wickford raised the issue of lawfare. The Government recognise that the large proportion of allegations targeted at our service personnel in Iraq were without foundation, and we acknowledge the importance of protecting our people from improper and vexatious accusations of the type perpetrated by Phil Shiner. The judgment by the court shows that Phil Shiner spread falsehoods against our brave armed forces, and the Ministry of Defence submitted evidence of his abuse to the legal system, which contributed to his being struck off. The Government are renewing the contract with those who serve and have served, and that includes protecting our personnel from improper and vexatious accusations of the type perpetrated by Phil Shiner.

The right hon. Gentleman will also be aware of the ongoing inquiry in the High Court into matters that are either the ones related or near to the ones related. He will appreciate that I cannot comment on them now, but I entirely understand the right hon. Gentleman’s passion, which he knows I share, for ensuring we look after our people better than they have been looked after to date.

I turn to amendment 3, tabled by the hon. Member for Epsom and Ewell. I share her intention of ensuring adequate provision in the budget for the Armed Forces Commissioner. The Secretary of State will have an obligation under proposed new section 340IA(7) to

“co-operate with the Commissioner so far as is reasonable”

and to give them any “reasonable assistance” that they require. That will ensure that they have the necessary assistance from the Secretary of State to conduct their work effectively.

Should the commissioner feel that their funding is insufficient to carry out their functions effectively, they will have the opportunity to raise the matter in their annual reports, which are presented to Parliament. The Secretary of State is accountable to Parliament, and this mechanism will provide the ability to scrutinise and challenge any funding decisions. However, it will be for the commissioner to determine the shape and structure of any staffing or budget spend.

As the shadow Minister has confirmed, we estimate in the explanatory notes that the budget for the Armed Forces Commissioner, based on careful scrutiny of the work of our friends in the German armed forces commissioner’s office, will be approximately £4.5 million to £5.5 million a year. That is a significant increase on the funding for the Service Complaints Ombudsman, which at present is roughly £1.8 million a year.

While being wholly independent of the MOD, the commissioner will be required to abide by the financial rules, regulations and procedures laid down by both the Treasury and the MOD in the commitment to financial resources—something I think we would expect de minimis on a cross-party basis. We heard from the current Service Complaints Ombudsman on Tuesday that this is a common model and works well, so including a commitment to ensure sufficient funding and practical assistance, per amendment 3, or increasing it in line with inflation, per amendment 10, is not necessary. Amendment 3 in particular may introduce a level of subjectivity into the legislation that would be difficult to measure.

I welcome—I think—the right hon. Member for Rayleigh and Wickford’s rejection of austerity budgets and the commitment to increase public funding in line with inflation. I suspect that he has not quite thought through the full implications of that across all areas of Government spending. None the less, the slow process of rejecting the austerity politics that I so know him for is interesting. I welcome that movement.

What is certain is that the functions in the Bill provide a format for the Secretary of State and the commissioner to have a reasonable conversation about the budget. The budget that we are setting represents a considerable increase and is modelled to deliver a service that involves not only a continuation of the SCOAF functions, but the investigations and the wider visits portfolio that has been mentioned. We feel that that is sufficient, but I suspect that any Member of Parliament who feels that the budget is insufficient, based on the reports tabled by the Armed Forces Commissioner in their annual reports as opposed to thematic reports, will be able to ask suitably challenging questions of the Government of the day about ensuring that staffing levels and financial support are right, just as we would expect for access and the implementation of recommendations. On that basis, I ask the right hon. Gentleman to withdraw his amendment.

[Mr Francois]

I will respond in kind to what the Minister says. As he will recall, his calculation was that even if the KC that we have been debating conceptually were full-time—we can argue about the rate—it might cost about £1.3 million a year. We never stipulated that it would be a full-time post; I think the Committee has explored. The essence of amendment 9 is that the commissioner would have access to high-level legal advice. Even if it were £1.3 million, given that our policy going into the election was to increase defence spending to 2.5% of GDP by 2030, I think we could have found £1.3 million within that number. The Minister is the one with the challenge, because he does not have a date for 2.5%. If he ever gets one, we would all like to hear it. I think we could have afforded the post, even if it had been full-time—and we did not mandate that it had to be.

[Amanda Martin]

My understanding is that the last time that the defence budget was at 2.5% was under a Labour Government, and that in the 14 years under the Conservatives there was not a 2.5% budget.

[Mr Francois]

That is correct, and under the Tories in the mid-1990s it was well over 3%. The problem is that a lot happened in the 14 years, including a war in Ukraine. That is why we probably need to spend 2.5% as quickly as possible.

Even if the Minister’s calculation is correct, by the time a senior NCO in the British Army gets to the rank of WO2, the King—or the Queen, before him—will probably have spent the best part of £1 million on training them. If they then leave, perhaps because they have had a very bad experience at the hands of the likes of Mr Shiner, that is £1 million of investment that has just walked out the door.

To be fair, the Minister understands the pressure. According to some figures that I received in answer to a recent parliamentary question, the strength of the British Regular Army is 71,300. This was in October. The establishment strength—the book strength, or what it is meant to be on paper—is 73,000. It was 72,500, but then there was an add-back of another 500, partly for the two Rangers Battalions. The British Regular Army is now nearly 2,000 soldiers short of what it should be, even on paper. Unfortunately, the trend is that more people are leaving than joining.

I am not highlighting that point in order to say that the whole lawfare issue is the only reason that people are leaving the British armed forces. That is not my argument, but it is one reason, and it is likely to get worse unless the Government do something about it. That includes doing something about the so-called Northern Ireland legacy Act.

I hope I have made the point sufficiently this morning; I am grateful for the way in which the Minister has acknowledged it and dealt with it. As I think the point has been made, I will not press amendment 9 or 10. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule be the First schedule to the Bill.

[Luke Pollard]

Schedule 1, by inserting proposed new schedule 14ZA into the Armed Forces Act 2006, primarily outlines the procedural aspects of the commissioner’s role and functions, including their legal status and terms of appointment, as well as disqualification and the delegation of functions. It encompasses the commissioner’s length of term, staffing arrangements and funding.

It is important that we set the parameters for the Armed Forces Commissioner while ensuring sufficient the impartiality and independence of their role. There are several provisions in place to ensure that this is the case, including paragraph 1 of proposed new schedule 14ZA, which establishes the commissioner as a corporation sole, setting them up to be legally separate from the MOD.

Although paragraph 3 of proposed new schedule 14ZA outlines that the commissioner is to be appointed by His Majesty on the recommendation of the Secretary of State, it should be noted that, as mentioned earlier, on Second Reading the Defence Secretary stated that he was keen for the House of Commons Defence Committee to exercise the toughest pre-appointment scrutiny as well, and I think he genuinely means that. We expect that to be robust, and I look forward to witnessing those sessions in due course. We need to appoint somebody who can do the job as a fearless, independent champion, and the Secretary of State will certainly take close note of the Select Committee’s views in any pre-appointment hearing.

Paragraph 4 of the proposed new schedule disqualifies a civil servant or member of the regular or reserve forces from being the commissioner. This is to ensure a fresh and independent perspective.

Under paragraph 5 of the proposed new schedule, to ensure both ministerial and parliamentary oversight, the commissioner must provide written notice to the Secretary of State should they wish to resign. Although the Secretary of State may dismiss the commissioner if specific criteria are fulfilled, they must specify their reasons for doing so via a statement to the relevant House of Parliament. For the benefit of new Members, that means that if the Defence Secretary is a Commons Minister, it would go to the Commons, and if they are a Lords Minister, it would go to the Lords. None the less, it would be accountable to Parliament.

--- Later in debate ---

[Luke Pollard]

I am happy to write to the hon. Member with our expectation of which specific clearance type would be required, but on the second part of his question about what happens if someone loses their clearance, it will be a condition of the role that they would be subject to the Official Secrets Act 1989 and require the necessary clearance, and in such circumstances they would not be fulfilling the terms and conditions of their role. I hope that gives the hon. Member suitable assurance.

Question put and agreed to.

Schedule 1 accordingly agreed to.

Clause 2

Commissioner’s functions in relation to service complaints

[Mr Mark Francois]

I beg to move amendment 11, in clause 2, page 2, line 15, at end insert—

“(2) Once the functions of the Service Complaints Ombudsman become functions of the Commissioner, the Commissioner will investigate individual service complaints in the same manner as they were previously investigated by the Service Complaints Ombudsman.”

This amendment would clarify that the Commissioner will investigate individual service complaints, as the Service Complaints Ombudsman did, as well as investigating general issues and publishing thematic reports.

[The Chair]

With this it will be convenient to discuss clause stand part.

[Mr Francois]

The Committee will be pleased to know that I think we can deal with this fairly briefly. The amendment was tabled prior to the public evidence session on Tuesday, when I sought some clarity on something the Minister said on Second Reading regarding the extent to which the Armed Forces Commissioner will be prepared to take up individual complaints on behalf of service personnel or their families who have already exhausted the MOD’s complaints process. The Service Complaints Ombudsman currently has the ability to do this at their discretion.

Speaking to the amendment gives me the opportunity to commend the current Service Complaints Ombudsman, Mariette Hughes, for the very good job that she and her staff have accomplished in virtually clearing the considerable backlog of complaints that were sitting in her in-tray. She told us on Tuesday that they now have only— from memory—30 individual cases left, all of which are live and actively being looked into. Given the history, as the Minister will know—I see he is nodding— this is a remarkable achievement, which drew praise from the Committee at the time that should be briefly repeated here.

If I may slightly cheekily say so—I promise I have not spoken to Mariette about this—when asked on Tuesday she indicated that she might be minded to apply for the post when it is advertised. I would chance my arm as far as to say that, based on her track record to date as Service Complaints Ombudsman, at the very least I think she should deserve an interview. It strikes me that she would be a strong candidate for the new role, although that will ultimately be a matter for the interview panel and, as we have discussed, for the Defence Committee, at least in part.

When we questioned the Minister on whether the Armed Forces Commissioner would have the power to continue to deal with individual complaints that had exhausted the MOD’s own complaints process, in addition to conducting the wider thematic investigations envisaged in the Bill, he confirmed that indeed they would. That is reassuring, but I would like to give the Minister the opportunity, should he wish, to add anything more about how he sees the process of dealing with individual complaints working in practice under the Bill.

[Luke Pollard]

I echo the shadow Minister’s praise for the work of the Service Complaints Ombudsman in reducing the backlog. Can I go further and thank all her team as well? We have seen a whole-team approach, and she has been able to marshal and deliver a much-improved service that is a helpful building block for the Armed Forces Commissioner’s office. I will not be drawn on who the Armed Forces Commissioner should be, for obvious reasons, but we would expect someone senior, with an ability to deliver, to take on that role after a proper appointments process has taken place.

I am grateful to the right hon. Member for Rayleigh and Wickford for tabling the amendment on how the commissioner will investigate individual service complaints. I will address his amendment and clause 2 together. The Bill already makes provision for the existing functions of the Service Complaints Ombudsman, set out in part 14A of the Armed Forces Act 2006—including those that relate to the investigation of individual service complaints—to be transferred to the new commissioner. The amendment is therefore not necessary.

To reassure the Committee, the Service Complaints Ombudsman’s functions and workload will be absorbed by the new commissioner’s office, and implementation work will continue in parallel with the passage of the Bill to ensure the seamless transition of all cases—new, active and closed—to the commissioner. There will be no interruption to Service Complaints Ombudsman service users during this process, and the Bill makes provision for transitionary arrangements to be put in place if necessary. The Bill abolishes the office of the Service Complaints Ombudsman, so it is imperative that its functions be transferred properly to the new Armed Forces Commissioner. Furthermore, the new commissioner’s remit will be much broader than that of the ombudsman, and they will be able to proactively launch investigations into issues faced by service personnel and their families.

On the shadow Minister’s specific question, going a level below the detail I set out, it will be a matter for the commissioner as to how they choose to investigate. However, the broad understanding is that, as well as taking on the Service Complaints Ombudsman functions, the commissioner will seek to receive views from armed forces personnel and their families. They will then be able to make a decision or look at areas for deeper thematic reviews. I would expect there to be a certain level of correspondence on issues, but it will be up to the individual commissioner to decide how best to resource that and what procedures, policies and thresholds need to apply. That will be a matter for the commissioner rather than me as a Minister to set out. I hope on that basis that the right hon. Gentleman is reassured and will withdraw his amendment.

[Mr Francois]

I did assure the Committee that we would deal with this briefly. There has been a purpose to this brief debate, not least in placing on the record our praise and admiration for the current Service Complaints Ombudsman. That may or may not be a factor in any future interview. With that hopefully achieved, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3

Procedure for making service complaints

Question proposed, That the clause stand part of the Bill.

[Luke Pollard]

Clause 3 amends section 340B(2)(a) of the Armed Forces Act 2006 to specify that a specified person may decide whether a service complaint is admissible, rather than the function needing to be carried out by an officer. The clause will allow civilians, in addition to military personnel, to make assessments of whether a complaint made by a member of the armed forces is admissible in the service complaints system. Currently, specified officers exist in each of the services and are responsible for deciding whether a statement of complaint is admissible as a service complaint.

Let me explain the admissibility process: a statement of complaint is not admissible as a service complaint if, first, the same complaint has been made before; secondly, it is about an excluded matter as set out in legislation; thirdly, it has been submitted outside the required time limits; or fourthly, the complaint is not from a serving or former service person. The admissibility decision therefore does not require skills or experience specific to military officers, but the way the legislation is interpreted often precludes civilians from undertaking this task. This clause makes a small, technical amendment that will make the service complaints system more streamlined by allowing any competent person to deal with a complaint, rather than just a military officer.

[Mr Francois]

I have one question. We understand the reason for the clause and, as the Minister has made plain, the Bill amends the Armed Forces Act 2006, so the amendment is to that legislation. We understand why the Government have changed “officer” to “person”; will the Minister give an assurance that such persons could include the immediate family of a member of the armed forces? I ask because sometimes members of the armed forces are reluctant to complain, but their family feel very strongly that they should. Without wishing to start any rows within a household, will the Minister put it on the record that if the circumstances merited it, a civilian who is a member of the immediate family of a service person could go to the Armed Forces Commissioner if they were very worried about their loved one’s welfare? If he could give that assurance on the record, we need not detain the Committee much longer.

[Luke Pollard]

I thank the right hon. Gentleman for his point. It is important to distinguish between the different roles of the commissioner. The clause makes an amendment specifically in relation to the service complaints process, rather than the broader functions we are adding to the Service Complaints Ombudsman role to create the commissioner.

There are certain provisions, as set out in the Armed Forces Act, that mean that only a serving member of personnel or a veteran raising an issue from the time of their service can complain in the service complaints system. We are, however, expanding the provision outside that provision for welfare matters that sit outside the service complaints system. In that situation, family members will be able to raise an issue or a concern with the commissioner, but that is not a service complaint. I reassure the shadow Minister that that function will still be held by the current rules.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Kate Dearden.)