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House of Lords Hansard

Armed Forces (Flexible Working) Bill [HL]

12 September 2017
Volume 783

    Committee

  • My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

    Clause 1: Regular forces: part-time service and geographic restrictions

    Amendment 1

  • Moved by

  • 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”

  • 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.

  • 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.

  • My Lords, when I spoke at Second Reading I indicated that I was supportive of the principle that the Bill seeks to enshrine. After all, who could argue against increased flexibility? But I did have a number of caveats and cautions. It seems crucial that whatever we do does not undermine the ethos that is essential to a successful fighting force. I raised a number of issues, not all of which have been dealt with to my satisfaction, but I set those to one side for the moment to focus in particular on Amendment 1.

    At Second Reading, the noble Earl took me to task for using the term “flexible employment”. He pointed out to me that service personnel are not employees as such. He is of course quite right, although the waters are somewhat muddied when the MoD itself uses terms such as “new employment model”. Service men and women have always understood and accepted that they are liable to be called to duty at any time— 24 hours a day, seven days a week, 52 weeks a year. The Bill seeks to change that. In doing so, though, it introduces the term “part-time” and part-time is a concept which in the military has never been recognised for regular service. It implies something that is completely removed from the ethos that is essential to a fighting service.

    We all know what the Bill is talking about. We all know that it does not intend to undermine that ethos. But we also know that Bills which become Acts can have unintended consequences, and this Bill has to be treated with a great degree of caution, in my view, because of the fundamental nature of the changes that it introduces. As the noble and gallant Lord, Lord Craig, has already pointed out, the use of such terms as part-time is anathema to the military. Why use such a term when much more appropriate terms are there, ready to be employed? I therefore support very strongly Amendment 1.

  • My Lords, I regret that I was unable to attend Second Reading but I have since talked at length to the Chief of the General Staff about the implications of the Bill for the future Army. He introduced me to an interesting phrase that I had not been familiar with: portfolio career. He said that the Bill would enable people joining the Army in future to enjoy what he described as a portfolio career, thanks to the flexible working.

    I am very glad that my noble and gallant friend has questioned the use of “part-time” because when you look at the medical cover for the Army, for example, 80% of it is reservist and that is not part-time in the true sense of the word; it is reservist and it is a mixture of the regular and the reservist. I am worried about the term part-time, as my noble and gallant friend is.

    In talking to the Chief of the General Staff, I was also interested in knowing, when the Bill is enacted and flexible working is enabled, who is going to be in control? I was very pleased to have his reassurance that the Army Board was going to be in control of the Army part of it, and I suspect that exactly the same line will be taken by the other two services because it is extremely important, if there is this flexibility, for somebody to be in control, to make certain that the services are always available, as my noble and gallant friend said, 24/7/52 in order to carry out their essential duty on behalf of the country.

  • 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.

  • 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.

  • 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.

  • My Lords, I humbly confess—your Lordships may think that seemly for a priest—that despite the weighty contributions of noble and noble and gallant Lords, I am confused about the problem apparently being raised by describing those who serve in the Armed Forces as part-time.

    Of course, part-time is a slippery term that seems to relate to the actual hours of delivery so that even those of us who claim to work full-time certainly do not. Working occupies only part of our day, whether we are in the Armed Forces or we are politicians, doctors, priests or whatever. So soldiers, sailors and air force personnel have a whole-time, sometimes decades-long commitment to the security of our nation regardless of the number of hours they are working and on duty in any week or month. In the same way, my local GP practice has more doctors who work part-time than full-time, but that is no measure of their skill and competence. Surely we are long past the point when part-time might suggest second rate. My surgery offers a whole-time service and capability through a blending of people working different patterns and hours.

    My own clergy have a whole-life vocation. They may be called upon at any time but they minister in a variety of flexible patterns, including part-time. Part-time is well understood to be an accepted and honourable working pattern, including among those whose service and work is a vocation.

  • My Lords, we are in Committee. It is always tempting to make a Second Reading speech but I will resist that. However, before I make some brief remarks about the amendment, if the Committee will indulge me, I would like to thank the Minister and his officials for their engagement so far.

    At the end of Second Reading, the Minister and I were far apart on agreeing the merits and demerits of this piece of legislation. Indeed, he said that my remarks were,

    “sceptical bordering on the cynical”.—[Official Report, 11/7/17; col. 1205.]

    But, as always with this Minister, he has sought to assuage my concerns and those of other noble Lords, and while I still have some reservations and share some of the concerns expressed today, especially by those with first-hand experience of command at a very high level in our Armed Forces, I am more positive about the measure now than I was at Second Reading. We have received some very useful briefings and the Minister has sought and welcomed comments, criticism and discussion. I am encouraged that he is prepared to take these issues seriously and I look forward to his response.

    I am sympathetic to the amendments tabled by the noble and gallant Lord, Lord Craig of Radley. Terminology is all-important in matters of this sort and the Minister did indicate, I believe, that we would be given more details on the current options for flexible working. The Minister has gone some way towards responding to that with the helpful papers that have been produced in the past week or so, but there is a powerful argument for putting something concrete in primary legislation, even if it is not strictly necessary because such definitions may already be covered by the Queen’s Regulations. The amendments tabled by the noble and gallant Lord are important because we need to understand the proper definitions of what we are talking about. I hope that the Government will give them the fullest consideration and, if they are not able to respond positively today, to do so on Report.

  • My Lords, through this group of amendments, the noble and gallant Lord, Lord Craig, questions the wording of the Bill in a number of ways. I hope to persuade him that Clause 1 has been drafted with careful consideration of the effect that the Bill would have on implementation of flexible working.

    Amendment 1 seeks to remove new Section 329(2)(ha) and replace it with new wording, which would provide the Defence Council with different powers. Those different powers would enable the Defence Council to make regulations enabling flexible rather than part-time service for enlisted regulars and for a regular to be able to request periods of unpaid leave. The noble and gallant Lord raised these points at Second Reading, and the aim, as I understand it from his remarks today, is to move away from the language of “part-time service” and replace it with “flexible service”, the underlying thought being that it would be more appropriate to label this change as another form of unpaid leave.

    Regulars can already serve on a flexible basis. The options which exist are several: variable start and finish times; compressed hours; home working; and career intermissions. The first three of those are essentially a means to rearrange the working day or week, while career intermissions involve unpaid leave for up to three years for, say, a period of study. The Bill is doing something quite different from those arrangements. It is creating part-time service, as commonly understood. That is why the language used has to be the right language.

    The effect of Amendment 1 would be that all flexible working arrangements for regulars would have to be provided for by way of Defence Council regulations. We regard that as unnecessary, and it would require a major rewrite of the existing terms of service regulations to deliver. I cannot agree with the noble and gallant Lord that the term “part-time” is belittling, nor do I think that it will undermine service ethos. I was grateful for the pertinent observations of the right reverend Prelate in this context.

    We have to remember several key things here. We are envisaging that only a modest, albeit significant, number of our people will apply to take up the new arrangements once they are introduced; the majority of regular service personnel will continue to serve on a full-time commitment basis. Personnel whose applications to work part-time are approved will do so for a temporary period only. They will remain subject to service law at all times and will be subject to recall under defined circumstances. We need constantly to bear in mind that this measure will, par excellence, help us retain and recruit the best people for defence. Currently people choose to leave when their circumstances change and the current system cannot accommodate them. We know this from extensive surveys that we have done. One therefore has to see this in the wider context.

    As for unpaid leave, as the noble and gallant Lord rightly said, regulars can already request this; for example, by asking for a career intermission. While we agree that leave is of course a well-understood service arrangement, the part-time working arrangements to be delivered under the Bill go beyond unpaid leave, which is why they require special provision. They go beyond unpaid leave for very particular reasons. Under the unpaid leave arrangements, the individual has no formal level of protection from recall to either full-time duty or deployment other than that of being on leave. The right to apply to work part-time to be delivered under the Bill goes considerably beyond that. It will provide more certainty for the individual, affording them rights to remain on a flexible working arrangement which can be revoked, as I said, only under certain circumstances, such as a national emergency.

    The noble and gallant Lord’s second amendment seeks to remove some of the language in new Section 329(2)(i) and replace it with wording to make it clear that only the regular can restrict their service to service in a particular area. I take this amendment to be driven by a view that the current language in the Bill would permit defence to place geographical restrictions on a regular’s service against their will—potentially—although I was grateful for the noble and gallant Lord’s concession that the present Government do not intend that, but I hope to persuade him that no Government could do it. This is certainly not the intention behind the existing language, nor is it its legal effect. Section 329 is there to provide protections for regular service personnel, so it is clear that these new regulations will be able to make provision for this new form of service only for the benefit of the regular, subject to the other restrictions permitted by the Bill. It cannot be imposed upon them. In fact, the Bill would ensure that service personnel are in control over whether to choose to apply to take up the new flexible working options. They would have the right to apply but there is absolutely no provision to make service personnel take up the new flexible arrangements.

  • The third amendment in this group looks to probe the language in new Section 329(2)(i), which provides for the new type of geographically restricted service being introduced by the Bill. In practice, geographically restricted service means that a serviceperson may seek to limit the time they are separated from their permanent place of residence or home base. This, of course, as for all flexible working options, would be a temporary arrangement. I should also explain that this restriction is not tied to service in a particular area but prevents separation from a particular place for more than a maximum number of days or occasions each year. As such, the language in Clause 1(2)(b) is, in my submission, essential.

    Amendment 5 in this group intends to remove the language referring to rights conferred on regulars under the new regulations in new Section 329(3A) by replacing it with the wording referring to agreed working arrangements. The existing wording is both appropriate and necessary. I was grateful to the noble Baroness, Lady Burt, in this context. Existing Defence Council regulations made under Section 329 create legal rights. A good example is the right of a recruit to determine their service by giving notice or the right of an enlisted regular to transfer to the reserve. We expect that the new regulations resulting from the Bill will give enlisted regulars the right to apply for part-time working and/or geographically restricted service. If their application is refused, as the noble Baroness rightly pointed out, the regular will then have the right to appeal that decision. They will not, though, have the right to work flexibly. Substantively, if an individual has a part-time application approved, they will then have a right not to attend for duty on their authorised days of absence. Therefore, we consider that the language used in the Bill is appropriate and I do not believe that it is necessary for the Bill to be amended.

    Finally in this group, we have the amendment in the names of the noble Baronesses, Lady Smith and Lady Jolly, which seeks to require the Defence Council to provide information on the administration of the new flexible working arrangements that we plan to introduce from 2019, and on the existing flexible working opportunities that are already in place. It also proposes that this information should be distributed in both written and electronic formats. I agree that we must be comprehensive in our approach to communicating the availability of these new measures and how they will operate if we are to ensure their successful introduction. My officials have already published and updated documents on GOV.UK following Second Reading, which provide further details about the new flexible working arrangements. The topics covered include the application and appeals process; the body of evidence that has supported our policy-making; more details about the regulation changes we plan to introduce under secondary legislation; the effect on pay and allowances; operational capability; and some key questions and answers on flexible working. The documents also highlight the existing flexible working opportunities we provide for our people, some of which have been available since 2005. I hope that noble Lords found this helpful, or will do so if they have not yet accessed it.

    With regard to ensuring that members of the Armed Forces are aware of the opportunities that these new flexible working arrangements will provide, how they will operate and how to apply, we will of course deliver a comprehensive communications campaign to members of the Armed Forces to provide them with the essential information to enable the success of these changes. This will include written and oral briefings; informal notes; internet and magazine articles; written policy guidance and advice to individuals and the chain of command; and process guides. There will be comprehensive guides for those who wish to apply.

    As I mentioned at Second Reading, we have a communications plan in force already to build on the reality of the flexible duties trial. I wrote further to noble Lords in mid-July to explain how the availability of flexible working is going to be made known across the services, and I hope I assured your Lordships that the MoD has an effective communications plan in place that is well under way with a range of activities delivered through a variety of channels and mediums aimed at key stakeholders. Our plan is designed to ensure that our activities peak at key moments as we progress towards implementation of these new arrangements in 2019. As well as informing our people about the new opportunities, the communications plan aims to influence military culture and attitudes to part-time working and enable the cultural change required to ensure that flexible working is successfully implemented. Service chiefs have been and will continue to be engaged with the process. They will oversee the cascading of communications down through their commands to ensure that service personnel are aware of the new opportunities that are being introduced. Therefore, given the amount of activity that is already under way and the additional activities that we plan to undertake, I do not believe it is necessary for the Bill to be amended. I hope, following those assurances, that the noble and gallant Lord, Lord Craig, will agree to withdraw his amendment.

  • My Lords, listening to the Minister’s comments and reflecting on the discussions on the Bill, I understand that the children of many service personnel have quite difficult journeys into adulthood, with a lot of disruption. Looking at the new provisions in Clauses 1 and 2, am I right in thinking that the Bill will make it easier for parents with young children to remain close to those children if they choose to do so, and might it reduce the disruption to those children’s lives? Might that be the effect of the Bill?

  • 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.

  • 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).

  • 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.

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

  • Amendment 1 withdrawn.

    Amendments 2 and 3 not moved.

    Amendment 4

    Moved by

  • 4: Clause 1, page 1, line 14, at end insert—

    “( ) After subsection (2) insert—“(2A) With regard to the rights conferred on a person by subsection (2)(ha) to (j), the regulations must specify—(a) whether and for how long a person must have served in a regular force before being entitled to apply for those rights;(b) to whom and in what manner a person must apply;(c) how many times a person may apply to exercise those rights;(d) whether there is any limit on the number of times a person may have an application approved;(e) for what specific periods of time a person will not be required for duty or liable for overseas deployment;(f) if the application is approved, for how long the agreed arrangements may remain in place;(g) the factors that may be taken in account when considering an application;(h) how the agreed arrangements may be altered or suspended; and(i) if an application is refused, how a person may appeal the decision.””

  • My Lords, Amendment 4 is a probing amendment. I am very grateful to the Minister and his team for the meeting that we had—it seems a very long time ago—just before we rose for the Summer Recess. We went through these issues with him. As the noble Lord, Lord Ramsbotham, said, employment patterns are changing. The idea of joining the service man and boy—or perhaps it is girl and woman these days—seems very much a thing of the past, or at least not what is always expected. We want to understand exactly how this works and what the Government’s intentions are behind it—hence the probing nature of the amendment. We are after the what, the how, the how long and the how many.

    The devil in this sort of thing is very often in the detail. We on this Bench have some concern that a lot of the detail will be in secondary legislation. I know that we will be dealing with that and I know that my noble friend Lady Smith will be dealing with those issues later. However, I would be grateful if the Minister would respond to these points—he has had the summer to look at them with his team—and then we will see how we can move forward from there.

  • My Lords, Amendment 6 in my name and that of my noble friend Lord Tunnicliffe relates to the powers conferred on the Defence Council by Clause 1. It is a simple but important amendment and it is one that has the full support of the House’s Delegated Powers and Regulatory Reform Committee. If I may, I will echo the comments made in the Chamber last week about the noble Baroness, Lady Fookes, who chaired the committee when it produced its report. We all wish her well and look forward to her speedy recovery and return to Parliament.

    In its report on the Bill, the committee noted:

    “These powers are conferred without any detailed provisions on the face of the Bill limiting or restricting how the powers are exercised. In the circumstances we consider that the affirmative procedure should apply”.

    The timing of the Bill, with the so-called repeal Bill and its many proposed delegated powers, which was approved in the other place in the early hours of this morning, is significant. We in this House always pay attention to the granting and use of delegated powers and it is only right that if additional powers are conferred on the Defence Council or on Ministers, a proper level of parliamentary scrutiny is guaranteed.

    Following meetings and discussions with the Minister, it is my understanding that the Government intend to accept that view and will either agree to this amendment or table a similar one; we will wait for the Minister to tell us. The introduction of part-time working and reforms to geographically restricted service represent fundamental changes to the terms and conditions of our Armed Forces. By ensuring appropriate scrutiny of the forthcoming regulations, the House will be fulfilling its duty to our hardworking service men and women.

    Perhaps I may say a brief word about Amendment 4. We certainly do not oppose the amendment moved by the noble Baroness, Lady Jolly, but much of the information it seeks is in the supporting documents that the Minister has provided. The key question that we want the Minister to answer is to assure us that this information will be put into regulations. If that is the Minister’s intention, it may not be necessary to put this provision into the Bill.

    I do not know whether it is the intention of the noble Earl, Lord Attlee, to speak to his amendment, but I shall say a brief word about it because he and I discussed it last week. I agree with him that there are too many instances where legislation is passed and commencement never seems to occur. I certainly sympathise with him on that point. However, I believe that the Government have made it clear that they want this option to be available from 2019, and in those circumstances I wonder whether that might well suffice.

  • My Lords, I am grateful for the noble Lord’s forbearance with my amendment. I have some slightly difficult personal circumstances which mean that I have not been able to prepare quite as well as I would like, and therefore I shall not speak to my Amendment 18.

    If these two proposed new subsections to affect the main clauses in the Bill were part of the wider quinquennial Armed Forces Bill, would we look at them in such great detail? I think that if we are honest, we would say probably not. I can understand the thinking of the Delegated Powers and Regulatory Reform Committee in recommending the affirmative procedure. The committee rightly recognises that your Lordships will want to look closely at the detail. However, as drafted I believe that even the most minor amendment in the future would have to be debated by both Houses, and I am not convinced that that would be a good use of parliamentary time. Worse still, a situation may arise where some minor change is desirable but the change is delayed, or even worse not made at all, because of the effort required. Noble Lords should be aware that putting an affirmative order through Parliament is not an exercise in rubber stamping; it is a complicated process. Would it not be better to use the affirmative procedure for the first set of regulations and then revert to the negative procedure for subsequent amendments? I wonder whether the noble Lord would like to consider that.

  • My Lords, I shall speak to Amendment 18 tabled in my name and to Amendment 6 which is tabled in the name of the noble Lord, Lord Touhig. The amendments are similar. In contrast to the noble Earl, Lord Attlee, we believe that it is important that Parliament should play its full role in legislation. If the Defence Council is to have new powers conferred on it, it would be appropriate to make an affirmative decision rather than use a negative instrument. The noble Lord, Lord Touhig, took the words out of my mouth. I was in this Room last week taking part in a debate about reporting on the process of Brexit. The issues being discussed included questions about the role that Parliament plays in that. The Henry VIII clauses which are in the EU withdrawal Bill cover a bigger set of issues, but the noble Earl, Lord Attlee, has asked, “If these clauses were part of a bigger Bill, would we be bothered about them?”. Perhaps not, but that is not the point. At the moment there seems to be a tendency on the part of Her Majesty’s Government to say, “If the Government have an idea, it should be accepted without any amendment or scrutiny”. It is important that your Lordships’ House and Parliament as a whole play their part in scrutinising legislation, and it is right that this should be done through the affirmative procedure.

    On reports, the noble Lord, Lord Touhig, reminded us that there now is information; I am grateful to the Minister for ensuring over the summer that further information was provided regarding the sort of questions we were looking for. As my noble friend Lady Jolly said, Amendment 4 was a probing amendment, but obviously, the more information that can be given and made available to people and the more detail we have, the greater the opportunity for this to be successful.

  • Perhaps I may comment on the point made by the noble Earl, Lord Attlee. His suggestion would not be the right way. He discussed it with me last week. The Bill substantially depends upon regulations to bring in its measures, and how would one decide what we would bring in the first tranche and the second tranche, and so on? Therefore everything that relates to this matter should be subject to the affirmative procedure.

  • My Lords, the first amendment in this group, Amendment 4, seeks to place in the Bill information to define how flexible working should be implemented. I agree that it is important that we have clarity over exactly how the new flexible working opportunities will be administered. I reassure the Committee that the policies and processes that will support the changes brought by the Bill have been designed by the services for the services. We have done a great deal of work with the services to develop policies that work for them and their people, and we will continue to refine them in the lead-up to their introduction in 2019 and after to ensure that they are clear and fit for purpose. In doing so, we will continue to consult our people.

    As noble Lords will recall, I outlined at Second Reading how we envisage the new flexible working arrangements will be administered following their introduction in 2019. In my subsequent written responses to Peers, I also promised that my officials would publish some additional information over the summer that would explain in more detail how the new arrangements would work in practice. I hope that noble Lords have received that information and found it helpful, and that it has answered the points raised in this proposed amendment.

    It might just be helpful if for the record I went through some of the processes that we envisage. We have a position on how we intend that flexible working arrangements will operate in practice. I am sure that noble Lords will appreciate that at this stage the detail remains subject to adjustment as a result of the ongoing policy refinement with the services, further work in the light of surveys and other feedback and, indeed, the need to account for the views of Parliament. In summary, however, the policy is intended to operate as follows.

    We believe that regular service personnel must have completed their basic and professional training and a period of further service, defined by their parent service, before they can normally undertake flexible working. A serviceperson wishing to apply to serve flexibly will apply through the joint personnel administration system through their commanding officer to an approvals authority at the headquarters of their service. No limit will be imposed on the number of occasions over a period that the serviceperson will be able to apply to serve flexibly, although they will be restricted to having only one live application at a time being processed by the administration system. However, there will be limits on individual periods of flexible working to help the services manage the applications and people’s expectations.

    We intend to limit periods of flexible working to no more than three years at any one time or to the end of an assignment, whichever is sooner. Within this period we intend to enable people to reduce their liability to serve by up to 40%, such as two days in a five-day working week of their regular full-time service. Service personnel requesting limits to their routine unlimited liability for separation from their home base will still remain liable for a maximum of 35 days separation in any one year. This will enable them to continue to undertake essential courses or participate in smaller periods of exercises.

    We also intend to restrict the total cumulative time that a serviceperson can serve on flexible working arrangements. This is to maintain the principle that regular service is a full-time and unlimited commitment, while also helping to share the opportunities for flexible working among the broadest range of personnel. Currently we are planning for the total period of all types of flexible working to be limited to four years in a 12-year rolling period. The exact approvals process is likely to vary slightly by service and we are still designing certain elements of it. Currently we plan that the approvals authority will take decisions after being informed by the chain of command, the employing organisation—for example, if the person is working with another service—career managers, manpower planners and other specialists as required.

    The principal deciding factor when considering applications will be the ability to maintain operational capability. The individual merits of each application will be considered and will include factors such as the type of role the person is serving in, whether the person has been warned to prepare to deploy for operation and, if appropriate, the personal circumstances surrounding the application. If an application is refused, an individual can appeal against the decision, as I mentioned earlier.

    Appeals will be considered by a separate appeals authority which will operate at the headquarters of each service. The exact make-up of that body has yet to be set. The appeals authority will make its decisions informed by information from the employer, the employing organisation, the chain of command, career managers, manpower planners and other specialists. Service personnel will of course have the right to escalate their appeal to a service complaint if they remain unhappy with the decision.

    The services will retain the right to recall regular service personnel from flexible working arrangements to ensure that operational capability is maintained while providing as much certainty of the arrangement for the individual as possible. Such recall will be against prescribed criteria sanctioned by the headquarters approvals authority within each service. Personnel will be subject to two levels of recall. The first will be immediate recall in cases of national emergency, and the second is curtailment after 90 days’ notice. The latter would apply where there is a significant change in the circumstances used to judge and approve the original agreement.

    We continue to work on the detail but envisage that a change in circumstances would include a change to the requirement for operational capability which is affected by overall manning levels of the service or trade or any specific skills held by the serviceperson during the period of flexible working. Should any of these change substantially, the service would be able to issue a 90-day notice to recall the serviceperson to full duties, either by suspending the flexible working arrangements for a defined period to allow them to be adopted again later for the remainder of the originally agreed period or by cancelling the flexible working arrangement outright. Where these circumstances occur, they would constitute a manning crisis as a result of severe manning constraints, manpower shortages on specific operational tasks or skills shortages. All approvals, refusals and amendments to agreements between a serviceperson and their service will be set out in writing to avoid any uncertainty and to provide an audit trail. The detail I have just outlined has been published on the GOV.UK website.

    As we intend to continue to refine the parameters of exactly how this policy will operate within the services by learning from their experience of operating it after introduction, it would be unnecessarily constraining to have the parameters proposed in the amendment set in primary legislation. The noble Lord, Lord Touhig, and the noble Baroness, Lady Jolly, made clear their view that this should all be in regulation, at least. The provisions that I have outlined will be set out in a mixture of regulation and policy statements, rather than exclusively in regulation.

    The purpose of Amendments 6 and 18 is to require any new regulations made by the Defence Council of a kind to be introduced by Clause 1(2) of the Bill to come into force only following the affirmative resolution procedure. Amendment 6 looks to achieve this by inserting into Section 329 of the Armed Forces Act 2006 a new subsection (4A). However, I must tell the noble Lord, Lord Touhig, that due to the way in which the 2006 Act works, any amendments to the procedure would need to be by way of amendment to Section 373, as identified by the noble Baronesses in their Amendment 18.

  • The Government are aware of the recommendation from the Delegated Powers and Regulatory Reform Committee to the same effect as these amendments. The committee rightly highlighted to the House that some of the new Defence Council regulations to be made under the Bill will go beyond matters of pure procedure. While we acknowledge the force of the point made, we are not persuaded that there is any significant difference between the regulations that we will look to make here and the existing terms of service regulations made under Section 329 of the 2006 Act. Those regulations already make provision for, for example, the type and length of an engagement that a person is entitled to enlist on, and they prescribe a regular’s right to determine their service. Those are important rights, but those existing regulations were made using the negative resolution procedure. Nevertheless, the Government have heard the strength of feeling on this matter in our debate today and always take seriously a recommendation from your Lordships’ Delegated Powers Committee. I am not in a position today to give any undertakings on the substance of this issue, but I undertake to reflect further on the matter in a constructive way ahead of Report.

    Finally, I welcome the attempt by my noble friend Lord Attlee to ensure that flexible working for the Armed Forces does not slip from the agenda, which I take to be the purpose of his amendment. I wish to reassure my noble friend that our plans to introduce flexible working are firmly on the table. Indeed, they are an essential part of the Armed Forces people programme, which is designed to explore new ways of modernising the employment offer for our Armed Forces, better to allow defence to attract and retain the right mix of people and skills. We propose to implement the new flexible working arrangements in 2019, as I mentioned, and we have no plans to change that timescale. In view of the positions that I have outlined, I hope that my noble friend will agree that it is not necessary for the Bill to be amended. I hope, too, that following the assurances and information that I have provided the noble Baronesses and my noble friend will agree not to press their amendments.

  • My Lords, I am happy to withdraw my amendment.

  • Amendment 4 withdrawn.

    Amendments 5 and 6 not moved.

    Amendment 7

    Moved by

  • 7: Clause 1, page 1, line 17, at end insert—

    “( ) After subsection (5) insert—“(5A) Within three years of paragraphs (ha) to (j) of subsection (2) coming into force, and annually thereafter, the Secretary of State must lay a report before each House of Parliament evaluating the impact of those paragraphs on recruitment and retention of members of the armed forces.(5B) The report must include—(a) an assessment of recruitment and retention of technical specialists in the armed forces;(b) a comparison of recruitment and retention between Her Majesty’s naval, military and air forces; and(c) a comparison of retention between those serving on a full-time basis and those serving on a part-time basis.””

  • My Lords, this amendment is intended to look at the impact of the measures in the Bill on recruitment and retention, including on technical specialists across the forces. The amendment provides that, within three years of the new flexible working arrangements coming into effect, the Secretary of State must lay a report before Parliament evaluating the impact of the arrangements on recruitment and retention in the Armed Forces. The report must include an assessment and comparison of the recruitment and retention of technical specialists in the three Armed Forces—the Royal Navy, the Army and the RAF—and those serving on a full-time and part-time basis. Our intention is that “technical specialists” in proposed subsection (5B)(a) should also include those working in areas where specialist training or qualifications are required and which are significantly understaffed at present.

    We hope that the Government might look at including these factors in a wider report on recruitment and retention in the Armed Forces. The Armed Forces continuous attitude survey and families continuous attitude survey go some way towards this but do not dig deeply enough into why morale is low and people are leaving. The top reason for leaving cited in the Armed Forces continuous attitude survey is impact on family and personal life. That is a broad statement and it is difficult to see how the Armed Forces or the Government can take effective action to address the issue. It needs to be broken down into factors such as hours, time away, impact of frequent moves, problems with military accommodation, spousal employment and other covenant issues.

    Another issue that needs to be looked at is the impact of welfare and community services on retention. “Patch life” provided by such things as SSAFA, with well-funded facilities, clubs and community services, is a large pro for members staying in the Armed Forces as a family. Anecdotally, concerns have been raised with us that the prospect of this life disappearing in the face of cuts and the FAM is turning into a reason for leaving rather than staying.

    Amendment 15, in my name and that of my noble friend Lady Smith of Newnham, seeks to find out how those who are working part time or restricted to a particular geographical location will be recorded in the PID or JPA. These exist only if the military has assessed that it needs the posts to carry out a capability. Therefore, any significant disparity between the number of posts and the target number of personnel in the military is statistical evidence that the Government are asking it to do more than it has the personnel to do, even if fully manned. There will also be more posts than personnel to allow for flex. However, we get the sense that the disparity is currently more than it has been historically, and more than it should be. In the context of this amendment, it is critical that part-time workers do not count as a full person in a post to avoid the disguise of manning shortfalls. What is the current number of PIDs/JPAs in the military? Can the Minister provide this figure broken down into the three forces? He might not be able to do that now but we would appreciate the figures as and when. I beg to move.

  • My Lords, Amendment 8 is in my name and that of my noble friend Lady Jolly. This may be an appropriate moment to apologise to the Committee, rather than to the House, for my misuse of terminology. I also apologise to the noble and gallant Lord, Lord Craig. I have not been here a long time and I find this issue a bit confusing. I ask for noble Lords’ patience.

    This amendment provides that, three years after the new arrangements come in, the Secretary of State will lay annually thereafter a report before Parliament evaluating the impact of diversity within the Armed Forces. By “diversity” we mean all protected characteristics. Diversity is about not just gender and race. In fact, the Act covers age, disability, gender assignment, marriage, civil partnership, pregnancy, maternity, race, religion, belief and sexual orientation. Although we have to be pragmatic in what realistically can be set before the House in parliamentary reports, I am trying to get to the spirit of this issue. Unless and until the Armed Forces are truly diverse, they will not make the best decisions to achieve their optimal effectiveness. Until everyone feels included, we will not have the team cohesiveness that the forces so prize, and which is so important to operational functionality in times of danger and stress.

    It is also important to report on these characteristics by rank. The Minister pointed out in his letter over the summer that as the services are “base-fed” organisations, some of the improvements will take time to feed through. That is all the more reason why we should measure this as time goes on because what you do not measure you cannot change. As I understand it, the Bill lacks any mechanism to track future progress or lack of it. Therefore, we hope that the Minister will be sympathetic to this amendment.

  • My Lords, Amendments 10 and 11 would introduce new clauses that cover the making of an annual report on the impact of part-time service and geographic restrictions, and on the Bill’s impact on recruitment and retention. These two amendments will enable the Government and Parliament to see what impact the Bill has on this very important question.

    I am sure that I am not alone in believing that we need more post-legislative scrutiny. Time and again, Parliament—with the best of intentions—passes into law Acts that have unintended consequences and fail to meet their objectives. Greater post-legislative scrutiny will lead to better lawmaking. The same principle applies here. Having served for several years on the Public Accounts Committee in the other place, I strongly believe in doing “lessons learned”. Time and again I sat through evidence sessions with the most senior civil servants, who had been made to appear before the committee to explain some major policy failure discovered by the National Audit Office. Indeed, when I served as a Minister—I am sure things have changed—I found an almost institutional objection to doing “lessons learned” among some of my officials. Our Amendment 10 is an important step in ensuring that the operation of this measure is kept under constant review and its impact reported to Parliament. It is as simple as that.

    The second new clause, outlined in Amendment 11, goes to the heart of what is one of the key questions for this Bill in the first place: the impact that service life is having on service men and women and their families. The SDSR 2015 committed the Government to ensure that,

    “a career in the Armed Forces can be balanced better with family life”.

    The noble Baroness, Lady Jolly, rightly pointed out that the 2017 Armed Forces continuous attitude survey, which lists the top five reasons why personnel leave the services, revealed that the number one reason was the impact of service life on family and personal life. We need to know whether this Bill has a positive impact on the quality of life of our Armed Forces, hence the need for this amendment.

  • My Lords, in those halcyon days when I was an Opposition Front Bench spokesman, I would have been proud to have tabled any of these amendments, something I did many times. I leave it to the Minister to say whether they are a good idea, but I draw the Committee’s attention to Amendment 15, which has not yet been spoken to, although it is in the grouping.

    We need to know how many servicemen are taking advantage of these provisions, because otherwise the stats on the strength of the Armed Forces are to an extent meaningless. Perhaps the frequency of the report is too great but I would like some reassurance from the Minister that we will know, from time to time, how many members of the Armed Forces take up flexible working.

  • My Lords, I will also speak briefly to Amendment 15. Picking up on the points made by the noble Earl, Lord Attlee, it is hugely important that we have clarity on what percentage of our Armed Forces are working full-time and what percentage part-time. At Second Reading the noble Lord, Lord Touhig, frequently asked whether this was a cost-saving measure. While we listened respectfully to the Minister and understand that it is not a cost-saving exercise, the question is whether, if a significant number of our Armed Forces are working on a part-time basis, there may be a cost saving, but equally a loss in capability. Having this basic information will be important in giving us a sense of whether we are up to full strength. If there were significant numbers of people working part-time, would there be a necessity to create new part-time or full-time posts equivalent to the time that they are not working—up to 40%?

  • My Lords, the introduction of new flexible working measures is designed to attract, recruit and retain people from a more diverse cross-section of society who have the knowledge, skills and experience that we need to deliver operational capability.

    Currently, service personnel who have dedicated themselves to public service sometimes struggle to meet their full military commitment—for example, due to a short-term change in personal or family circumstances—and the only option in such circumstances has been to leave the Armed Forces. This represents a loss to the individual and to defence. New flexible working options aim to address this so that in such situations personal circumstances are no longer a barrier to continuing service. We believe that these measures will benefit a small but significant cohort; for example, women and men starting a family, those with caring commitments or those who wish to undertake long-term studies. Moreover, our evidence derived from external reports, comparison with other nations, internal surveys, focus groups and our ongoing flexible duties trial shows that providing our people with modern choices will help us retain highly skilled personnel who might otherwise leave and join organisations which provide these choices. In short, through these new measures we are aiming to modernise the terms of service for the Armed Forces with a view to improving recruitment and retention into the future.

    Many other external factors, such as the economic climate, have the strongest influence on recruitment and retention and are likely to mask the impact of these new flexible working arrangements in the short to medium term, and we have to bear that point in mind. Defence is experiencing many of the same skills and recruitment challenges that are being faced nationally. To meet those challenges are proactively as possible, we are modernising the employment offer for our Armed Forces, as I have described. These collectively are being managed under the Armed Forces people programme, which comprises projects including the new joiner offer and enterprise approach. The new joiner offer should support and improve retention by developing a new, more modern and more relevant offer for new joiners that better supports service personnel throughout their career. We also aim to improve retention by better management of critical skills across defence through the enterprise approach project. Changes to enable members of the Armed Forces to work more flexibly originate from the flexible engagement systems project, which forms a further part of the people programme.

    These amendments seek to place various obligations on defence to publish reports on the effects of flexible working on the Armed Forces. I am sure the Committee is aware that intake, outflow and strength by rank, trade and specialisation are monitored and managed on a regular basis at service level and centrally by the MoD. The MoD already publishes detailed information and analysis in the UK Armed Forces Monthly Service Personnel Statistics. This publication provides statistics on the number of service personnel by strength, intake and outflow in the UK Armed Forces, and detail is provided for both the full-time Armed Forces and reserves. We carefully monitor information on trade, specialisation and sub-specialisation by rank and service, and routinely release on a regular basis, as part of official statistics publications, a wide range of information on outflow from the UK Armed Forces.

    We also publish comprehensive data in the UK Armed Forces Biannual Diversity Statistics. This statistical release presents information relating to the gender, ethnicity, nationality, religion and age of personnel employed by the MoD and meets the department’s obligations under the public sector equality duty to provide information on its workforce in relation to the protected characteristics identified by the Equality Act 2010. Information on numbers of personnel undertaking and returning from maternity and shared parental leave is also provided as part of this publication.

    It is important to highlight the evidence from trials and surveys commissioned by the Armed Forces, which indicates that take-up for options that enable service personnel to work more flexibly is likely to be low in the early years of implementation. Furthermore, while the MoD promotes the importance of the Armed Forces being appropriately representative of the diverse society they exist to defend, with operational effectiveness being dependent on inclusion and fairness, we estimate that the overall numbers taking up the new opportunities will be small to begin with. Therefore, assessing any correlative impact that flexible working has on increasing diversity in the Armed Forces is likely to be difficult, particularly in the early stages. This will mean that any detailed evaluation of the impact of flexible working measures on overall recruitment and retention rates, skills retention and outflow, and diversity in the Armed Forces will be difficult to achieve in the early years of operation.

    The recording requirements for any pattern of work for our Armed Forces are stipulated in policies and recorded on the joint personnel administration system—JPA. JPA is already used to process applications for existing flexible working options. There is planning in place to enable all instances of part-time working or geographical restriction by personnel to be recorded on JPA when these options are made available. It will be crucial to ensure that all cases of flexible working are properly recorded and monitored to provide personnel and commanding officers with a record of all discussions and agreements. However, since it is estimated that the number of applications is likely to be low in the early stages, collating and reporting information on a monthly basis to provide figures on the number of personnel undertaking flexible working as a proportion of the total of full-time serving members of the Regular Forces would not provide significant or beneficial data.

    It is important to emphasise again that the new arrangements are aimed at improving recruitment and retention in the long term, as part of a series of projects being delivered through the Armed Forces people programme. The long-term effects of these collective initiatives should be the measure of how effective the new arrangements are, rather than short-term reporting and figures on take-up.

    We judge that formal annual reporting for a small cohort would not add value or provide a real sense of the impact of introducing these new opportunities. However, my department recognises the importance of keeping the delivery and effect of these changes under continuous review, in terms of both the benefits to personnel and the impact on operational capability. We will closely monitor the rates of uptake for new flexible working options by service, rank and specialism and will carefully examine any long-term trends and links to overall retention rates and diversity.

    As noble Lords will be aware, the Secretary of State is required to lay an annual report before Parliament each year outlining the Government’s progress in delivering the Armed Forces covenant. The introduction of the new flexible working opportunities falls within the scope of the covenant and we envisage that the introduction of these measures in 2019 will be monitored during the first year of implementation and will be reported on in the covenant annual report and yearly thereafter.

    The noble Baroness, Lady Jolly, asked about FAMCAS and AFCAS and drilled down with some further questions. I will write to her on the questions that she asked. I will need to consult the department to understand what further information it would be possible or practical to provide her with, but what information we do have I will be happy to give her. She also asked how flexible working could be introduced within a fixed headcount. The simple answer is that we will manage the levels of flexible working permitted and therefore will be able to ensure that the right levels are maintained to deliver defence outputs. It is envisaged that capacity surrendered to flexible working arrangements will either be within reducible capacity or can otherwise be resourced through other means such as the employment of reserves. Like other organisations with part-time workers, the organisation will change over time to better accommodate flexible working.

    I do not believe that it is necessary for the Bill to be amended in this way. I understand that these are largely probing amendments and I hope that the explanations and information I have given to the Committee will be helpful to noble Lords and that they will not press their amendments.

  • My Lords, I am happy to withdraw Amendment 7.

  • Amendment 7 withdrawn.

    Amendment 8 not moved.

    Clause 1 agreed.

    Amendment 9

    Moved by

  • 9: After Clause 1, insert the following new Clause—

    “Protection of pay and allowances

    (1) Nothing in this Act shall lead to the full-time equivalent level of remuneration provided to persons serving with a regular force being reduced.(2) In this section, “remuneration” means—(a) basic pay;(b) the x-factor allowance; and(c) any other universal payments,provided to persons serving with a regular force.”

  • My Lords, at Second Reading there was much discussion of the potential consequences of the Bill on pay and benefits received by our Armed Forces. On this side we agree that it is perfectly reasonable that if somebody decides to scale down the time commitment of their job there should be an appropriate adjustment to pay and there will be consequences for pensions, but I describe that as part-time working, not flexible working. Indeed, I believe the Government also understand that and maybe agree with it. Throughout the Bill the proposed new working arrangement is referred to as part-time working. The only reference to flexible work is in the short title. However, the Minister will have heard concerns from all sides that this change could represent an attempt at cost saving or a slippery slope to forced part-time work.

    In meetings the Minister has assured us that there will be no compulsion and no one will be forced into part-time or flexible working. I am certain that that is welcomed on all sides, but in our discussions the Minister explained that there was already in existence a system of flexible working which did not involve service personnel taking a pay cut. I may have misunderstood, but I understood that to be the case. I have a number of questions to ask about that existing scheme, such as how widespread is it? Is it some form of informal arrangement, varying from place to place and dependent on local interpretation, or is it codified in some way? Is the existence of such a scheme publicised in the forces?

    A number of these questions have been answered in the very useful papers that the Minister has provided to us, which leads me to ask whether it is intended that this flexible working arrangement will be operated alongside the part-time working arrangement outlined by the Bill. In the case of someone who needed to take half a day every Friday for, say, the next 10 weeks to accompany a wife or partner to hospital, could this not be done under a flexible working arrangement whereby that person would make up the hours and not suffer a loss of pay? Another person may decide that he or she wants to commit to fewer hours and work part-time. That would obviously have an impact on pay and pensions.

    A life in the Armed Forces can be incredibly rewarding in many ways, but it is rarely highly lucrative. The very existence of the x-factor payment demonstrates that being in the forces is not like any other job. Our amendment on pay and allowances would protect the full-time equivalent base level of pay, the x-factor payment and any other universal payment or allowances provided to personnel serving in any of the regular forces. It would not preclude people from working part-time but would prevent the option of working part-time or subject to geographical restriction—which the Minister acknowledges is envisaged for only a small number of people—being used as justification to reduce remuneration overall.

    A recent document provided by the Bill team states that,

    “personnel who remain working on a full-time commitment will not see a reduction to their basic pay, x-factor payment, and any other universal payments”.

    I therefore hope the Minister will accept our amendment so that this information is available for all to see. In the same document it is stated that the Government are,

    “engaged with the Armed Forces’ Pay Review Body to help determine what a fair and appropriate reduction”,

    of the x-factor payment would be for those who have limits placed on them at their level of separation. There is also discussion on the need to inform how the Armed Forces Pension Scheme will operate after the passage of the Bill. I hope we will hear more from the Minister about these points.

    I thank the noble Baroness, Lady Smith of Newnham, for tabling her amendment on access to accommodation. We have received assurances from the Minister and his officials that those affected by the Bill will not see any change in their entitlement to service accommodation. If this is the case, surely the Minister will agree to put these assurances in the Bill.

    Amendment 16 tabled in the name of the noble Baroness, Lady Burt of Solihull, is also important. As with the issues of accommodation, we are simply asking that the assurances we have already received are added to the Bill. Similarly, Amendment 17 tabled in the name of the noble Baroness, Lady Jolly, is also invaluable. Some important points have been made and it may be that the Minister is not able to respond positively today. However, we shall certainly be looking for much more when we come to the Report stage. I beg to move.

  • My Lords, I shall speak to Amendment 13 on accommodation. As the noble Lord, Lord Touhig, mentioned, this is an important issue. We have had some indications that those service men and women who avail themselves of flexible working will not be adversely affected, but there is already pressure on service accommodation, in particular a lack of single living accommodation. Moreover, we are looking at new accommodation through the future accommodation model. The question I have for the Minister is this: to what extent has planning been made to ensure that there will be sufficient accommodation for part-time service men and women? If the overall number of personnel remains unchanged, clearly the pressures will not change from what they are now. However, if there is a need for more personnel because some people are working part-time, has consideration been given to providing additional accommodation to ensure that those who work part-time will have the access to service accommodation that they have been promised?

    If it is the case that there are more personnel in total because some people are working part-time, that would suggest the need for additional service accommodation. Not only would this not be a saving, there could potentially be a cost in this. Is the Ministry of Defence willing to consider additional accommodation being made available and meeting the costs that that might entail? If not, how does it envisage squaring the circle?

  • My Lords, I wish to speak to Amendment 16 tabled in my name and that of my noble friend Lady Jolly. Before doing so, however, I want to make a comment about Amendment 9 tabled in the name of the noble Lord, Lord Touhig. It seeks to protect the full-time equivalent level of remuneration for regulars. As the noble Lord has pointed out, there are components to this such as universal payments, basic pay and the x-factor, which until recently I thought was something else entirely, but I shall not go into that. The idea is to protect against any reduction in pay being slipped in for individuals who will be affected by this Bill. But since we are not changing the classification of a regular, these components will not change, including the 14% which is the current x-factor payment. It will remain throughout the term of an individual’s employment. My view is that this should be a matter for concern and we would appreciate an assurance from the Minister that that indeed will be the case.

    I turn to Amendment 16, which ensures that a person can be promoted regardless of whether they work part-time. We would welcome a reassurance from the Minister that the new arrangements will not affect someone’s career progression. The situation is complicated and not necessarily what people outside the Armed Forces might imagine. As I understand it, the current performance appraisal, postings and promotion system is not based primarily on competence. It relies heavily on direct comparisons being made with immediate peers in a unit. A tick-box system is used whereby someone has to have done certain jobs in order to get the next job. In that way, an individual can score enough to go before a promotion board. Under the current system, anyone working part-time will inevitably be penalised, particularly if they are on geographical restriction as one. They are unlikely to do all the posts they need to do to remain in the promotion thread, and they may not score as well in direct comparison with peers. If the Government accept the premise that promotion should not be affected by using the flexible employment scheme, does the Minister also accept that the appraisals-posting promotion structure really could do with a massive overhaul?

  • My Lords, I share some of the concerns of the noble Lord, Lord Touhig, and I hope that the Minister can reiterate the assurances he has given us in private that there would never be any encouragement of a serviceperson to seek part-time work in order to meet budgetary restrictions. If you have a branch and a headquarters, it would be quite easy to meet a cost-saving requirement just by having everybody take up part-time working. That would be an easy reassurance for my noble friend to give and I hope that he will do so. Can my noble friend also give an absolute reassurance that part-time working would not be used as part of the disciplinary machinery? In other words, if someone has fouled up, they are told that they will do six months of part-time service.

    An interesting question for the Minister is this: when the pay of a serviceperson who has taken up part-time working is reduced, is it reduced on the basis of a seven-day week—a 365-day year—or on the basis of a five day week? Most people in camp normally work a five-day week unless they are on exercises or deployed. This is quite an interesting question because reservists are paid only for the days they do. The answer to my question about that will be rather more complicated than it first appears.

    Amendment 16 concerns promotion and would ensure that part-time service in itself will not affect promotion. I hope that the Minister can give us a reassurance on that. The drafting of the amendment is a little bit problematic because it says “irrelevant”. It will be relevant, but it might be positive. For instance, the soldiers’ or officers’ joint appraisal report—the pen picture that describes how well or badly the serviceperson has done—might say, “Despite the fact that this soldier or this officer is working only four days a week, they have achieved all the objectives required”, or maybe even more than was expected. So you could acquire quite a good SJAR or OJAR despite the fact that you are working part-time. It is a rather complicated picture, but I hope that the Minister can give us some reassurances.

  • My Lords, approval of the Bill will afford regular service personnel the right to apply to vary their commitment temporarily. The new arrangements will not be mandated for service personnel. I can reassure my noble friend in particular on that point. Those who wish to continue serving on a full-time commitment will be free to do so.

    The noble Lord, Lord Touhig, seeks to amend the Bill to ensure that regular service personnel will not see a reduction in their basic pay, X-factor payment or any other universal payments provided for regular service personnel as a result of the Bill. I am sure that noble Lords will agree with me that it is fair and appropriate that in the future, those regular service personnel who elect to vary their commitment should see a commensurate variation in the reward they receive. We have worked closely with the services to ensure that this variation will be above all else fair and reasonable both to those who work under the new enhanced flexible arrangements and to those who do not.

    As noble Lords will recall, I made this point during Second Reading. I can also now say categorically that those who remain working on a full-time commitment will not as a result of the Bill see a reduction in their basic pay, X-factor payment or any other universal payments provided for regular service personnel. Furthermore, let me reassure the Committee that the introduction of part-time working will not be used to lower the full-time equivalent basic rate of pay, the X-factor allowance or any other universal allowances payments available to personnel.

    During the Bill’s Second Reading, I provided reassurances that regular service personnel undertaking part-time working would retain those entitlements available to full-time regulars. Service accommodation in particular is an important provision for many personnel and their families that helps enable their mobility in support of defence capability. It is an important part of the offer for our people and an entitlement that the noble Baroness, Lady Smith, seeks through her amendment to ensure will still apply to personnel who successfully apply to work part time. To support my earlier reassurance, I can also confirm that our current policy makes provision for all regular service personnel to have an entitlement to service accommodation commensurate with their personal status category and other qualifying criteria. Service personnel will retain an enduring liability for mobility when working part time because they will still be subject to the same moves associated with new assignments as others in the regular Armed Forces. Therefore, they will remain entitled to service accommodation as under our existing policy and there is no need to alter the entitlement to accommodation for those who undertake part-time working; they will continue to be able to access service accommodation under the same criteria as full-time regulars.

    I spoke earlier of the future accommodation model project that is due to be introduced in 2019 as part of the defence people programme. That project aims to create a more fair, affordable and flexible model for providing accommodation for our people while giving them more choice about where, how and with whom they live. It will also provide a subsidy to help more personnel live in private accommodation, including by helping to meet their aspirations for home ownership. Eligibility under the future accommodation model will not be altered for those personnel who work part time or subject to geographical restriction for a period. The noble Baroness raised the question of accommodation pressures as part-time working is rolled out. My answer to her at present is that given the anticipated low take-up, we do not expect additional pressures on housing to any significant degree.

    Similarly for service personnel who opt to leave the Armed Forces, access to resettlement and employment support for up to two years prior to their discharge date and for two years afterwards will remain an entitlement for those who undertake part-time working. We want to ensure that our people transition successfully from an Armed Forces career where they receive world-class training to a civilian one where they can add real value to society because we have good quality people with developed skills who can really benefit external organisations. The noble Baroness, Lady Jolly, has sought to amend the Bill to protect the entitlement to resettlement under the new measures, and I can confirm that there will be no difference in resettlement entitlement for full-time service personnel and those regular personnel who work part time and/or restrict the amount of time that they are separated from their home base. The entitlement to resettlement is currently based on the number of years of service between the date of enlistment and the date of discharge. This will not change for those who take the opportunity to work flexibly on the introduction of the new flexible working opportunities. I can also confirm that there are no plans proportionally to calculate resettlement entitlement for personnel who undertake flexible working based on their actual number of days of work. Our resettlement policy guidance will be updated on the introduction of the new flexible working arrangements to state that resettlement support will remain the same for those who take advantage of them so that applicants are fully aware of their continuing entitlement.

    It will be difficult to assess what impact the new flexible working arrangements might have on resettlement services in light of the fact that entitlements will not alter. Additionally, as the noble Baroness, Lady Jolly, will recall, I said at Second Reading that we expect a small yet significant number of personnel to undertake flexible working. For these reasons the impact on resettlement entitlements is likely be minimal and challenging to measure.

  • Amendment 16 deals with the effect that undertaking flexible working opportunities may have on an individual’s promotion prospects. The need to ensure fairness for those personnel who take up the new flexible working opportunities and those who do not is one of the fundamental principles underpinning the design of the policies and processes that will support the changes brought by this Bill. They include making sure we avoid intentional and unintentional career penalties, creating the opportunity for individuals to maintain or regain career momentum and maximising accessibility of transfers between regulars and reserves in both directions. Service personnel will continue to be promoted on the basis of their performance and potential. Choosing to work flexibly will not in itself damage someone’s promotion prospects. However, it may delay the development of skills and experience, which will be a consideration for individuals on applying, and the impact will vary depending on the stage of their career.

    As noble Lords may recall from my response to a similar question at Second Reading, I am confident that the administrative process for the new flexible working arrangements already has the same safeguards that the noble Baroness is seeking build into its design. Furthermore, as a matter of policy, promotion boards will be directed to assess fairly all candidates for promotion on the basis of their merit and future potential, irrespective of any period of flexible service.

    The new arrangements will be supported by a number of key principles with underpinning activities. They include that personnel working flexibly will not be managed as a single cohort or commitment type but will continue to be managed within their existing service, branch and trade structure. In addition, we will seek to avoid intentional or unintentional career penalties for those who undertake flexible service and we will create the opportunity for individuals to maintain or regain career momentum.

    Our current position and future intent therefore is to provide a fair and consistent opportunity for those taking advantage of the flexible working arrangements to be able to advance at the same rate of opportunity as others in their cohort. This will also help to ensure that flexible working is regarded as a fair, viable and retention-positive proposition rather than a negative one and will promote the best talent to the higher ranks for the benefit of the services and defence. The noble Lord, Lord Touhig, asked whether flexible working is currently codified. It is. Current flexible working arrangements are set out in JSP 750. I would be happy to provide the noble Lord with a copy.

    As I mentioned at Second Reading, a decision on promotion is very largely forward-looking, rather than an exercise in looking back. It should absolutely be about the person’s potential above all else. It is important to stress again that the introduction of enhanced flexible working options is about providing opportunities for our people who want to work more flexibly and not to disadvantage them or their families by limiting access to entitlements and support available to regular service personnel. Similarly, any effect on allowances or promotion are intended to be proportionate and fair and our policy has been developed to limit any negative impact. With this in mind, we will work closely with the services to monitor the impact of these new measures on service personal under- taking flexible working and, as I promised earlier, we will report findings in the Armed Forces Covenant Annual Report.

    My noble friend Lord Attlee asked a specific question about whether part-time working would be used as a disciplinary tool. Part-time working will absolutely not be awarded as a punishment or anything like that. I hope I have answered the main question about how pay will be reduced on a proportionate and fair basis, but on my noble friend’s specific question on whether the calculation will be based on a seven-day working week or a 365-day working year, I will write to him, if he will allow that.

    I hope that my rather lengthy answer will convince noble Lords that it is not necessary for the Bill to be amended in the ways suggested and that, following my assurances, the noble Lord, Lord Touhig, will withdraw his amendment.

  • My Lords, the Minister has given his usual very full response. I need to reflect on it, because I keep coming back to the points made in our first debate by the noble and gallant Lord, Lord Craig. There is a question of definition and terminology: the Minister has constantly referred to “flexible” working but the Bill keeps referring to “part-time” working. It mentions flexible working only in the short title. I need to look carefully at his remarks on the Bill in Hansard tomorrow to make sure that he is talking about part-time working, not flexible working because that was one of the key points I was trying to draw out. He said that the existing flexible working scheme is codified. I would be grateful to receive a copy of that. My earlier point was that people working in that flexible environment should not be penalised in any way by having their pay cut. That is a key point we need to look at before Report.

    We have had a very useful and interesting debate, but it certainly underpins the need for clear definitions and terminology. I beg leave to withdraw the amendment.

  • Amendment 9 withdrawn.

    Amendments 10 and 11 not moved.

    Amendment 12

    Moved by

  • 12: After Clause 1, insert the following new Clause—

    “Implications for the Armed Forces Covenant

    (1) Within six months of the coming into force of this Act, the Secretary of State must lay a statement before both Houses of Parliament outlining the implications of this Act for the Armed Forces Covenant.(2) In preparing the statement, the Secretary of State must determine whether the Armed Forces Covenant, or any of its supporting documentation, requires revision in order to reflect the measures provided for in this Act.(3) The Secretary of State must ensure that the Armed Forces Covenant annual report considers the contribution of this Act to meeting the goals of the Armed Forces Covenant.”

  • My Lords,

    “The need for an Armed Forces Covenant is ever more relevant today”.

    Those are the words of the very first sentence that the Defence Secretary wrote in the foreword to the Armed Forces Covenant Annual Report 2016. For once I find myself in complete agreement with Sir Michael Fallon—

  • Don’t get carried away.

  • I will not get carried away. The publication of the Armed Forces Covenant Annual Report has become a well-established practice, and the Government should be congratulated on that. Because of that, we on this side were motivated to table Amendment 12.

    The Bill is a small but by no means insignificant measure, and when enacted its impact should be measured to see what implications it has for the covenant. Subsection 2 of the amendment requires that,

    “the Secretary of State must determine whether the Armed Forces Covenant, or any of its supporting documentation, requires revision in order to reflect the measures provided for in this Act”.

    By including the requirement set out in subsection 3 of the amendment, we are deliberately linking the impact of this Bill on the lives of service men and women to the covenant. By explicitly linking the Bill to the covenant, we are giving the external members of the covenant reference group an opportunity to consider and comment on the operation of the Bill when it becomes an Act.

    The external members of the covenant reference group make a major contribution to monitoring the life and well-being of our Armed Forces, their families and all that affects their lives. This Bill should be no exception, so I heartily welcome the comments made by the Minister in a debate earlier this afternoon which made clear that the Government will ensure that the operation of this legislation will be reflected in a report on the covenant. That will give the external members of the covenant reference group a chance to comment on it. That is progress, and I look forward to that being enacted. I beg to move.

  • My Lords, as the noble Lord, Lord Touhig, has explained, this amendment seeks to require the Secretary of State for Defence to lay a Statement before both Houses of Parliament, within six months of this Bill coming into force, outlining the implications of this Bill, once enacted, for the Armed Forces covenant. This amendment would also require the Defence Secretary to consider whether the Armed Forces covenant, or any of its supporting documentation, requires revision to reflect the measures in the Bill. Finally, it seeks to commit the Defence Secretary to ensure that the annual report on the covenant reflects the contribution of this Bill to meeting Armed Forces covenant goals.

    I share the view of the noble Lord about the importance of measuring and reporting on the impact of the changes that will be introduced through this Bill. I want to ensure that it is done in the most appropriate and effective way for both the MoD and Parliament. As I mentioned at Second Reading, and several times today, we expect a small but significant number of our people to take up the new opportunities introduced by the Bill.

    For this reason and, I submit, the disproportionate administrative burden we believe it would create, we judge that there would be little value to be gained from producing a statement only six months after the Act has come into force. The long-term aim of providing these new arrangements, alongside a range of other measures in the MoD, is to modernise the terms of service and ultimately improve Armed Forces recruitment and retention, which I am sure all noble Lords would welcome.

    In addition to this, evidence from our ongoing flexible duties trial suggests that in particular those with families have benefited from the greater stability that comes from having more choice over how they serve. This latter prospect has been welcomed by the services’ families’ federations, which view this as an important part of the drive for a better work/life balance among service families. It is these specific areas that I have just mentioned rather than the concept of the Armed Forces covenant itself that will feel the direct impact following the introduction of the new flexible working arrangements. We therefore do not anticipate that there will be any need to revise the wording of the covenant or its supporting documentation. As noble Lords will be aware, the Secretary of State is already required to lay an annual report before Parliament each year outlining the Government’s progress in delivering the Armed Forces covenant and, as I mentioned earlier, it is likely that a future report will include a section on the introduction of the measures included in this Bill and their effect. That would be entirely appropriate. For this reason, and the others I have already outlined, it seems unnecessary to legislate that the Secretary of State should report separately on the introduction of the new measures that the Bill will introduce. I do not therefore believe it is necessary for the Bill to be amended as suggested by the noble Lord. Following these assurances, I hope that he will agree to withdraw his amendment.

  • I beg leave to withdraw the amendment.

  • Amendment 12 withdrawn.

    Amendments 13 to 18 not moved.

    Clause 2 agreed.

    Clause 3: Short title, commencement and extent

    Amendment 19 not moved.

    Clause 3 agreed.

    Bill reported without amendment.

    Committee adjourned at 5.27 pm.