Armed Forces Commissioner Bill

Committee (1st Day)

16:15:00

Clause 1: Armed Forces Commissioner

Amendment 1

Moved by

1: Clause 1, page 2, line 2, at end insert— “(5A) The Commissioner must—(a) uphold and give due regard to the principles and commitments of the Armed Forces Covenant when carrying out its functions;(b) monitor and report on compliance with the principles and commitments of the Armed Forces Covenant in all areas of its responsibility.”Member's explanatory statement This amendment would require the Commissioner to uphold and abide by the principles of the Armed Forces Covenant when carrying out its functions.

My Lords, there is always time for a new experience. Despite having been in your Lordships’ House for 10 and a half years, this is the first time that I have ever moved an amendment as the first amendment in Committee, which means that I do not have any experience of quite what I am supposed to do, other than to stand up and say that I am moving the amendment in my name. I am very aware that, at various Committee stages of Bills, the movers of amendments seem to talk at great length. The bit that I do know is that I am not supposed to give another Second Reading speech—but I also noted before I arrived that it said that movers should not speak for more than 15 minutes, and I am moving the first amendment in two groups. For the benefit of everyone in Grand Committee this afternoon, noble Lords will all be extremely relieved to know that I do not plan to speak for more than 15 minutes in total, across all five groups, unless I am interrupted or heckled. We were all very clear at Second Reading that this is an important Bill and that we all broadly support it and wish it well. Any amendments that we bring forward are intended to improve it and not in any way to undermine it. It is very much in that spirit that the first amendment is proposed. This amendment is in a little group all on its own, because it refers to the Armed Forces covenant. When the Armed Forces covenant has come up previously, it was very clear under the previous Government that there was a commitment to it and a desire that it should apply to businesses and maybe to schools, the health service or to other branches external to government—but the Government themselves and the MoD were not subject to the Armed Forces covenant. From these Benches, we always felt that that was a bit of a gap. In looking at this new role for the Armed Forces commissioner, it seems entirely appropriate that the person appointed should pay due attention to the Armed Forces covenant and that they should “uphold and give due regard” to it, in the wording of the amendment. We also think that it would be helpful for the Armed Forces commissioner to monitor the Armed Forces covenant and how far the principles and commitments are being upheld. It is an important document and an important covenant, yet sometimes it seems to be honoured more in the breach than in the reality. Therefore, in that spirit, we want to ask His Majesty’s Government at least to think about the relationship between the Armed Forces commissioner and the covenant. With that, I beg to move.

My Lords, the noble Baroness, Lady Smith, said that this is the first time she has ever moved an amendment in Committee—

The first amendment.

In my case, it is the first time I have ever been at a Committee on a Bill on the Armed Forces. When I walked in the door and was handed the latest regulations and so on, for which we are all very grateful, I must admit that when I looked at some of the amendments, I wondered where the disagreements are going to lie. As someone who comes fresh to this, I should have to say briefly—I am going to be briefer than the noble Baroness—that I thought, “This seems like a reasonable amendment. What’s wrong with it?” So when my noble friend the Minister replies, I should be grateful to have explained what may be the objections to this amendment, because if there is something I do not understand about the relationship between the Armed Forces commissioner and the covenant, I should very much like to know.

My Lords as always, it is a pleasure to follow the noble Baroness, Lady Smith of Newnham, and I thank her for opening the Committee’s considerations of this Bill on a matter as important as the Armed Forces covenant. She has done a commendable job of reminding noble Lords of the three principles of the covenant; so I will not repeat them. However, I should like briefly to comment on some of the great work that has happened as a result of the covenant. The Armed Forces Act 2021, which was taken through the House by my noble friend Lady Goldie—who sends her apologies for not being present in this Committee today; she is otherwise detained in the Chamber—imposed new duties on public bodies to have due regard to the Armed Forces covenant. This means that housing organisations, health services, educational establishments and local authorities must all take action to ensure that service personnel are not disadvantaged. This has led to considerable improvements in service welfare. For example, the Armed Forces community in west Norfolk raised concerns that there was insufficient dental service provision near the local base at RAF Marham. The views of families, supported by research from Healthwatch Norfolk into local health provision and user needs, were fed into the Norfolk health overview and scrutiny committee, ensuring the commissioning process reflected local and regional needs. This was all led and negotiated by the Norfolk Armed Forces covenant board, with partner organisations then collaborating to find a solution to meet those needs. NHS England worked closely with RAF Marham and the Defence Infrastructure Organisation to address the gap by opening the first NHS dental practice based on an MoD site. This is a direct positive consequence of the Armed Forces covenant. The previous Government took significant steps, as I have mentioned, to incorporate the covenant into law. Given that it is somewhat axiomatic that the commissioner will already have due regard to the principles of the covenant, I should say, therefore, that the amendment does not seem quite necessary. I am glad, however, that the noble Baroness has moved it to highlight the positive impact of the covenant.

Perhaps I may start by welcoming everybody to the Committee, and I look forward to the consideration of the Bill. I thank the noble Baroness, Lady Smith, for the way in which she introduced the amendment, and in particular the points she made about the general approval that everyone has with respect to the main thrust of the Bill. But of course, that does not negate the opportunity and chance for us to discuss how we may test what the Government are thinking and, where appropriate, suggest improvements. I shall reflect widely on the various points that are made and my intention is that, between Committee and Report, we will have meetings between ourselves so that we can discuss how we might take all this forward. I say that as a general view as to what my intention is in order to make progress on the Bill, so that everyone will feel as though the contributions they have made have helped. I cannot promise the answers will necessarily be those that everybody would want, but certainly it is my intention, following Committee, to work with people to look at the various discussions that have taken place. I apologise for the fact that the draft regulations dealing with the definition of what we mean with respect to a family have been made available online only an hour or two ago. Certainly, we gave them out as people came into the Room. There is, I am afraid, nothing I can add other than to say it was an administrative oversight, and I apologise profusely to everyone for that. I also know how irritating it is, having sat where the noble Earl, Lord Minto, is, to have to wait for regulations that do not appear. I can only apologise to the Committee for that. It may have been the first time that the noble Baroness, Lady Smith, introduced an amendment, but nobody would have known. It is a very important amendment. I thank noble Lords and Baronesses here today for turning their expertise to the scrutiny of the Bill and for offering their board support to its principle and purpose. The ongoing welfare of our serving personnel and their families must remain a priority for this Government and the commissioner. The amendments we are considering today will do much to keep their welfare at the forefront of our minds in both Houses of Parliament. I declare an interest, as my son-in-law is an active member of the Reserve Forces. Amendment 1 is on the important issue of the Armed Forces covenant. As the noble Baroness said, its effect would be to place a requirement on the commissioner to have due regard to the Armed Forces covenant principles as part of their general functions. It would also require them to monitor and report on compliance with the covenant in all areas of their responsibilities. As I am sure noble Lords know—and as the noble Earl, Lord Minto, pointed out—the Armed Forces covenant recognises the unique obligations and sacrifices made by those who serve in the Armed Forces, whether regular or reserve, and those who have served in the past and their families, including the bereaved. This Government, as the last Government were, are fully supportive of the Armed Forces covenant. Indeed, our manifesto included a commitment to place the covenant fully into law with an ambition to include that in the next Armed Forces Act. An important aspect of the covenant is that it applies to the entirety of the Armed Forces community, which encompasses both serving and former members of the Armed Forces. As the noble Baroness knows, the Armed Forces commissioner is very focused on the serving community and their families. It will, of course, be perfectly proper for the commissioner to consider covenant issues where they relate to serving members of the Armed Forces and their families, and I would imagine that those issues will be very much at the heart of the “general service welfare” matters that are within the remit of the commissioner to investigate. However, I strongly believe that there is a separate and pressing need to address the issues of our serving community, and it is in that role where the Armed Forces commissioner will have the powers to make the real impact that we all want. I hope that I have been able to reassure the noble Baroness that the commissioner will be fully able to investigate covenant issues where they apply to the welfare of serving personnel and their families. Therefore, it is not necessary to specify this in the Bill, but I do not, in any way, decry the importance of the Armed Forces covenant, which every member of this Committee supports. We aim to extend and develop that in the Armed Forces Act that is coming in the not-too-distant future. With that, I ask the noble Baroness to withdraw her amendment, but I thank her for the thrust of the point that it made.

I thank the Minister for his response. If I may give a slightly flippant response to the noble Viscount, Lord Stansgate, who said that the amendment looks straightforward and is difficult to disagree with, so “How can the Government not agree with it?”, it sometimes feels with legislation that, however relevant an amendment might be, Governments of whichever flavour say, “No, we can’t possibly agree with this amendment, but we might be able to come back with something worded a little differently”. Government amendments might look similar to opposition amendments, but they may be accepted. On this occasion, I hear what the Minister said on the specific reasons why the target audience of the Armed Forces commissioner is somewhat different to that of a wider role that would include veterans and other members of the Armed Forces community. However, I am still slightly concerned. The noble Earl, Lord Minto, pointed out that it is axiomatic that the Armed Forces commissioner would be bound by the Armed Forces covenant, but one of our concerns is that the Government seem to think that the Armed Forces covenant is something that other organisations should implement; they have not bound themselves to it, somehow. I look forward to seeing what the Government bring forward in the next Armed Forces Bill—they seem to come along quite regularly, a bit like Christmas. We look forward to that but, for the moment, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

16:30:00

Amendment 2

Moved by

2: Clause 1, page 2, line 4, at end insert— “(7) For the purposes of this section, “persons subject to service law” includes people going through the recruitment process to join any branch of the armed forces, and “relevant family members” includes the family members of people going through any such recruitment process.”Member’s explanatory statement This amendment would allow those currently going through the recruitment process to join the armed forces to use the Armed Forces Commissioner for its intended purposes.

My Lords, both the amendments in this group are in my name, and Amendment 10 is also in the name of the noble Baroness, Lady Bennett of Manor Castle. Amendment 2 relates to a matter of particular concern to my honourable friend in the other place: that we need to be very mindful of those who are going through the recruitment process. The legislation is obviously about those subject to service law, but one of the concerns is that, as people go through the recruitment process, they are potentially vulnerable. Clearly, that would not apply to somebody just walking into an Army recruitment office, but if somebody has got to the point of applying, going through the medical process and then going through various assessments to see whether they are suitable to be recruited—apparently there is sometimes a requirement to stay overnight, for example—there is a real concern that we need to make sure that they are not put in any difficulty, particularly when it comes to young people. If there is no Service Complaints Commissioner because the role is being taken over by the Armed Forces commissioner, will it be possible for those going through the recruitment process to be part of that? I know that the Minister is not minded to accept this amendment, but it would be helpful if he would at least explain to the Grand Committee how the interests of those going through the recruitment process, particularly the very young, will be maintained and if he would confirm that safeguarding will be in place. Amendment 10 is to some extent related to the draft regulations that have just appeared. At Second Reading the Minister said that he would make sure that the draft regulations would be out in good time before Grand Committee—I think he may have said that it would be not just half an hour before. They arrived a good two hours before Grand Committee, so we are probably winning. The draft regulations talk about deceased service personnel’s family, so that bit of our amendment has already been covered, but I have two questions, one of which is linked to the amendment as initially tabled, which is about kinship carers and whether the language used in the draft regulations is intended to cover that or whether we still need to think about a more specific amendment on kinship carers coming back on Report. At the moment, the various clauses in the draft regulations talk about “relevant family members”, including those for whom someone “has assumed regular and substantial caring responsibilities”, but there is very little definition of what is meant by that. It may be that there is other, not necessarily Armed Forces legislation, where there are very clear definitions, but it would be helpful for Grand Committee to understand how His Majesty’s Government understand that. As the draft regulations happen to be in front of us, I wonder whether this is the right place to ask the Minister my second question relating to them, regarding Regulation 2(3)(b) about “a former spouse or civil partner or a person whose relationship with A was formerly akin to a relationship between spouses or civil partners”. I am just wondering how far the remit of “relevant family members” is intended to extend. If we are talking about someone at the time of a bereavement, it is usually clear who is the spouse or civil partner. Where we are dealing with people who have previously held those roles, is it anyone who has previously been in the role of something similar to a spouse or civil partner? How do His Majesty’s Government intend to define that? Is the Armed Forces commissioner supposed to deal with all those relationships, or will we be looking at a narrower definition? I beg to move.

My Lords, with the greatest respect to the noble Baroness, I will speak against Amendment 2. I declare my interest as a member of the Army Board. I understand the intent, but my objection to Amendment 2 is based on practicality. The recruitment process has changed dramatically in recent years. Indeed, you can start your recruitment process not by going into an Army recruitment centre but simply by going online and clicking a button. Last year alone, we had over 100,000 applicants to the Regular Army and over 30,000 applicants to the Army Reserve. That was just for a single service, so I think it is fair to say that probably in excess of 200,000 people will have applied to join the Armed Forces over the past year. If we were to allow these people to access this system, I think the system would simply be overwhelmed and goodness knows what the cost would be. The principle is that those who are subject to service law are subject to the Bill, and service law does not kick in until the point of attestation, when you actually join the Army. I was privileged to be in Nepal only three weeks ago to witness our next 372 Gurkhas being attested into the British Army. I understand the sentiment, but, with the greatest of respect, I think it is simply impractical. We would open the aperture of the system to so many people that we would run the risk of the system simply not working because it would be overwhelmed.

That is a very helpful intervention, and we are probably all delighted to hear that there were so many applications for the Army last year, given that recruitment has been an issue. Could the noble Lord continue with some of that exposition? Obviously, it is possible to apply by going online and clicking a button and, clearly, the applicant should not have recourse to the Armed Forces commissioner at that stage. But at the stage where somebody is going through a medical or being assessed, could there be concerns that we need to think about, even if that is not through the Armed Forces commissioner?

The noble Baroness makes a reasonable point, which is why I said at the start of my remarks that I understood the intent behind what she is trying to achieve. Without getting distracted, the challenge that we face at the moment is a crisis not of recruitment but of conversion. One of our biggest challenges is that we have a conversion rate—forgive me if this figure is not quite right—of about 13 or 14 to one in the Army and about 20 to one in the Army Reserve. The challenge is in the process of recruitment and the time that it takes. I am straying beyond my role here today, but I can assure the noble Baroness that the Armed Forces are seeking to address that. Those who are frustrated in that process probably should have the ability to have redress, but I am not sure that this process is the right one.

My Lords, I too am persuaded that Amendment 2 is not necessary, but, with an eye to what one might consider bringing forward on Report, could I take the opportunity to ask the Minister to reflect a little more widely than simply the recruitment process and go into some detail on recruit training? Recruit training will be covered by the Armed Forces commissioner, but it is as a blanket coverage just like everything else. But we are only too well aware of the serious concerns that exist about the abuse of recruits undergoing training. This is a particularly serious problem that, in my view, needs to be looked at outwith the general subject of the treatment of people in the Armed Forces. Why do I say that? Recruit training is and must be a tough and stressful endeavour. It has to turn civilians into effective members of a military organisation. It has to forge new bonds of loyalty and duty, and that will never be an easy or gentle process. But, simply because of that, recruit training becomes a particularly potentially dangerous area, because recruits are particularly vulnerable. Anyone in charge of recruits who steps over the bounds can cause serious harm. The abuse of recruits is not just wholly wrong legally and morally; it is also damaging to the image of the Armed Forces more widely, and indeed it could be damaging to recruiting. So it seems to me that this area deserves some particular and special attention. The Minister might like to reflect on whether something should be included in the Bill, or in the regulations that flow from it, that pays particular attention to this. It is not, of course, because commanders do not care; they do care. We have had the very recent example of the Chief of the General Staff expressing his shame at some of the some of the recent cases. But we have seen these cases year after year, stretching back as far as any of us can remember. The care, concern and statements of commanders have not changed things. As the Minister will be aware from discussions we had at Second Reading, the critical thing in the Bill is what it will do to change things on the ground. Recruit training, it seems to me, is an area that deserves particular consideration. I wonder whether he might reflect on that and perhaps have some further discussions before we get to Report.

My Lords, I intervene at this point to say that I am very grateful to follow the two noble Lords who have just spoken because I learned a great deal. On Amendment 2, I hope that, when the Minister comes to reply, he will be as precise as possible in indicating exactly when the Bill will take effect on people joining. The noble Lord, Lord Lancaster, referred to attestation: is that in fact the moment at which you go from being an applicant to being, as it were, a serving member of the Armed Forces—and hence the Bill applies? Secondly, with respect to Amendment 10 and its reference to the regulations, which I got a copy of as I walked through the door, my noble friend the Minister made his declaration of interest again today, and I made one during the Second Reading debate—I will not bore the Committee with it again, except to thank the noble Lord, Lord Lancaster, for his enthusiastic reply. Looking at the list of relevant family members, and bearing in mind my declared interest, am I right that someone who is engaged to a serving member of the Armed Forces does not come within the current definition of family members?

My Lords, I declare an interest as a serving Army Reserve officer. I was not going to speak on this group, but the discussion so far has prompted me because, without wishing to prejudge the Committee too much, I am probably the one who went through the recruit process most recently—albeit six years ago. Things have probably changed for the better since then. I agree with the noble and gallant Lord, Lord Stirrup, that recruit training needs to be vigorous and arduous, because you are turning civilians into soldiers, sailors and airmen. I also agree with my noble friend Lord Lancaster that applying service law, and benefits thereof, at the point at which someone becomes an applicant would be too early. But, to pick up on the point of the noble Viscount, Lord Stansgate, yes, attestation is exactly that point. I can speak only for the Army recruitment process. It is very good at training you and telling you where you need to be, at what time, and with what kit and equipment, and it is good at telling you what you are going to do. What this amendment perhaps points towards is that it could communicate better to recruits not only their obligations but their rights. The National Recruiting Centre holds everyone’s personal information. It could be as simple as an email from the Armed Forces, subbed by the Armed Forces commissioner, saying, “You have now attested. These are your obligations, rights and benefits”. That would take care of all of these issues.

16:45:00

I sense that we are in danger of confusing the recruitment process and recruits. The recruitment process is the process through which you apply to join the Armed Forces. That ends at the point of attestation, when you join the Armed Forces. You then become a recruit in training. It is unfortunate that the two words are similar; we run the risk of not understanding that the point at which service law applies is attestation.

My Lords, although I appreciate the intent of the noble Baroness, Lady Smith, we believe that this Bill should retain clarity and focus. It is important that the commissioner is responsible for those who are subject to service law. That is the language used in the Bill and the term defined by Section 367 of the Armed Forces Act 2006. As per that that section, those who are subject to service law include every member of the regular forces at all times; every member of the Reserve Forces while they are undertaking any training or duties relating to their reserve duties, are on permanent service on call-out, are in home defence service on call-out or are serving on the permanent staff of a reserve force. As per chapter 18, Terms and Conditions of Enlistment and Service, recruits become subject to service law once they have sworn the oath of allegiance to His Majesty the King. I swore mine 53 years ago; that is a slightly awful thing to say. They would, therefore, already have access to the commissioner. The issue arises when we try to include all those going through the recruitment process, as we have just discussed. They are still civilians, and many may not complete the process of joining up. Therefore, they would not be likely to experience general service welfare issues in the same way that fully attested service personnel may do. In Committee in the other place, the Minister for the Armed Forces pointed out that there can be up to 150,000 individuals going through the recruitment process at any one time. If the commissioner’s remit were to be expanded in this manner, their case load would, in essence, double. This seems like rather an onerous imposition that could hinder the commissioner’s ability to serve service personnel as the Government intend. On Amendment 10—I very much thank the Minister for the draft regulations—the only thing I would like to say is that I believe that there is already a precedent definition in legislation. The Armed Forces (Covenant) Regulations 2022 define relevant family members for the purposes of Section 343B of the Armed Forces Act 2006. The Government already have a list that defines family members, and it is fairly comprehensive. This begs the question: what differences will there be between that definition and this new definition? Also, since we have just received this latest definition, I ask the Minister: could we perhaps consider it and revert at a later stage?

My Lords, I thank the noble Baroness, Lady Smith. Although I do not agree with her on Amendment 2, let me just say that I think the fact that she spoke to both that amendment and Amendment 10 has provoked a very interesting and important debate. I will deal with some of the issues that she raised when I make the formal government response to it. First, I want to respond more widely and openly to the various questions that have been raised. I very much agree with the point made by the noble and gallant Lord, Lord Stirrup, and the noble Lord, Lord Lancaster. The Government are looking at ways to improve the recruitment process before the point of attestation through a review of recruitment and how it takes place, in order to try to improve the whole process, but that is separate to the whole point of the commissioner. None the less, the noble Baroness made an important point about how we could improve that experience for those who are applying to join our Armed Forces. The noble Baroness spoke about kinship, and I will make some remarks about that in my formal remarks. Our belief is that the draft regulations she has received— I emphasise that they are a draft—are intended to be broadly drawn with respect to that. We have noted the comment the Delegated Legislation Committee made on how these draft regulations should be agreed using the affirmative process, rather than the negative process as is currently in the Bill. I say to the noble Earl, Lord Minto, and others, that we will come back and look at that on Report to reflect the views of the committee. Our intention in the draft regulations is to ensure that anyone who is closely connected to a serviceperson and feels the impact of service life should be covered by the commissioner’s remit. We recognise that this could be a wide-ranging and diverse set of people. Before I forget, I will say to my noble friend Lord Stansgate that engaged people are covered by the commissioner.

They are getting married in September.

I know it will change in September, but engagement is covered. Trying to overly constrain this definition may risk suggesting that family is more of a traditional nuclear family, and it may not reflect differing circumstances, such as the bereaved or non-traditional family set ups. We have tried to reflect that in the draft regulations; again, I apologise for their being late to the Committee.

I read the regulations very closely, but I am not sure how it includes engaged couples unless they are covered by an interdependence in terms of finances. If an engaged couple were not living together or did not have a joint bank account, for example, would they be covered? It used to be the fact that, in terms of considering casualties, there had to be a connection of financial dependency between the two.

I am advised that Regulation 2(3)(a), “a person whose relationship with A is akin to a relationship between spouses or civil partners” includes engaged people. If that is wrong, I will come back to it, but that is the whole point of having the draft regulations before us. As I said, these regulations are draft and will come back as secondary legislation in due course.

I am afraid I have to say to the Minister that I think that is very woolly. As a Minister who dealt with casualties—I am sure other Members who have served in the Ministry of Defence will be aware of this—I can say that the Armed Forces family is very complicated. At a sudden death or tragic event, various emotions come together and, unless that is defined, you will have difficulty.

That is a really helpful comment from my noble friend. These are draft regulations; we are not going to legislate them now. The Bill will give us the power to create secondary legislation, and those draft regulations can be changed when people make various comments, including the ones my noble friend has made. Those can be taken into account and, if there needs to be change, there can be. The whole point of the draft is that it gives the opportunity for noble Lords to make various comments on them. The noble Baroness, Lady Smith, may reflect that kinship is not covered in the way she would expect, and therefore could make that point in response to the remarks I have made and will make. That is the whole point of what we are discussing. If this draft is not drawn tightly enough, of course it will have to be changed.

In my time, I have seen some mind-bogglingly complex family arrangements, some of which would not be comprehended by these regulations. I say to the noble Lord that I do not believe that it would be possible to write something out that will cover all possible contingencies. I wonder what degree of flexibility there will be in all of this to take account of the unforeseen when it comes to very complex family arrangements.

One would expect the complexity of modern family life to be reflected in the regulations. In the end, one would hope that the commissioner would exercise some professionalism and care with respect to that. I take the noble and gallant Lord’s point and my noble friend’s point, but it is extremely difficult to do this and to capture every single potential arrangement. However, as I said in response to the noble Baroness, we are trying to have as broad a definition as we can, including as many different arrangements as we can, with some flexibility to try to capture the sorts of arrangements that we may not have thought of—such as those who are engaged and so on. As my noble friend pointed out, in his view, this does not adequately capture that; we will have to reflect on that and, where necessary, change it. A point was made about the difficulty of this; one has to try to do it, but we are ultimately dependent on the sensitivity of the commissioner, which is what I would hope we would do. The noble Baroness will have to reflect on the kinship point. I totally agree with the points that the noble Lord, Lord Lancaster, made about attestation. The commissioner has a responsibility for the particular individual from that time. I will refer to that again in my remarks, but I totally agree with what the noble Lord said. I thought the intervention of the noble and gallant Lord, Lord Stirrup, was extremely pertinent. Many of us here are concerned about the abuses that we have seen. He made a particular point with reference to recruit training and the balance there must be between rigorous training to make sure somebody is fit for service with the abilities and aptitudes that one would expect and ensuring that that training is not inappropriate, bullying or in any way abusive. Certainly there is an expectation that, were that a concern or something that is brought to the commissioner’s attention, they would look into it. It is good to see the noble Baroness, Lady Newlove, here with the experience that she can bring from her role. She is somebody who has shown that the “So what?” question can be answered, and she has made a very real difference with respect to victims. The “So what?” question is really important to the whole of the Committee. Many of us who have served are sick and tired of reading report after report, but there are changes happening and improvements taking place. At the same time, in the evidence given yesterday to the Defence Select Committee by the Chief of the General Staff, the First Sea Lord, the Minister for Veterans and others, they were openly talking about their complete disgust at some of the things that still happen and their desire to continue to work for changes. In fact, noble Lords may have seen some of the changes that they suggested, one of which was the establishment of a specialist tri-service team to deal with the most serious complaints. This tries to take them out of the single service that they would normally go to, by having a tri-service complaint system. That was something that the Chief of the General Staff and others talked about yesterday.

One of the issues that we discussed at Second Reading was the challenge of people actually accessing the commissioner. This seems to be a particular concern for those in recruit training. Old lags in the system will generally know how it works and will have friends around who can tell them; they will understand what they need to do to get the commissioner involved. However, recruits will be a bit hazy on all that and extraordinarily reluctant, in the environment in which they find themselves, to complain. This comes back to the point I made earlier: is there not a need for a particular set of arrangements for those undergoing recruit training beyond those applied to the broader swathe of service personnel?

The noble and gallant Lord makes a good point. Let us reflect on that and see where we get to. But I could not agree more with him about the nervousness that you would expect from a recruit who has just joined and done the attestation and is part of the Armed Forces, but who feels that it is what is happening with respect to him or her is inappropriate.

17:00:00

On a broader point, because the noble Lord, Lord Colgrain, has raised this with me with respect to the reserves, there is a need to publicise the work of the commissioner and to make people confident in being able to contact the commissioner, going to the commissioner with whatever their concerns are, and for the commissioner to hear that, even if the commissioner says, “That’s an individual complaint; you need to go to the service complaints system”. But if enough of those come, then they can see that there is a general welfare issue that is occurring. We are going to reflect on how we ensure that we publicise the work of the commissioner. The noble and gallant Lord, Lord Stirrup, made the suggestion that that may mean that, in a particular circumstance with respect to recruit training, we may need to consider how we do that. But it may be that there are other circumstances for other groups or categories—however you want to define them.

We are in danger of not overpublicising but causing confusion. The majority of the service complaints system which is lifted and dropped into the Bill still remains the responsibility of the single service. One of my concerns at Second Reading was, for a number of reasons in a number of different areas, that we will begin to raise expectations. I am not sure that the Service Complaints Commissioner would welcome it if, all of a sudden, they are having a whole series of complaints directed at them which rightly should go through the service complaints system. So we need to be very careful how we advertise this; otherwise, we will cause a right mess if we are not careful.

I agree with that. Let us be clear that the service complaints system remains in place; it is the Service Complaints Ombudsman’s responsibilities that are being transferred into the Armed Forces commissioner role. So I thank the noble Lord, Lord Lancaster, for allowing me to reiterate that point. He is absolutely right that, in most circumstances, the commissioner will refer individual service complaints back to the individual service for it to look into. I agree with him on his point about ensuring that that system continues and works in the way that we would all want it to, and the Armed Forces commissioner’s responsibility is with respect to the general welfare issues that arise. In answer to the point made by the noble and gallant Lord, Lord Stirrup, when we look at how we publicise that—the noble Lord, Lord Colgrain, has highlighted the reserves—we will make sure that we take on board the point that the noble Lord just made so that there is no confusion, but that at the same time we create a culture where people feel able to bring something forward to the appropriate body, whatever that may be. I just want to address another point that the noble and gallant Lord, Lord Stirrup, made. It was a very important point, which should be reiterated, about how some of the poor behaviours we see reflect on the image in total of the Armed Forces. That is why it is so important to answer the “So what?” question. I just say to my noble friend Lord Stansgate—or maybe it is to the noble Baroness, Lady Smith—that, subject to the will of Parliament, we hope that the Bill will get Royal Assent in late spring this year, and the Armed Forces Bill will come into effect early in 2026. So that is the timeline that that we are operating to. Just for information to the Committee, the Service Complaints Ombudsman’s contract runs out at the end of 2025, but within the Bill there are transitional arrangements that are able to be made should there be a period between the end of her contract and the start of the Armed Forces commissioner role. I just want to be clear about that. I turn to the formal remarks that I wish to make. Amendment 2 relates to the addition of those undergoing the recruitment to the Armed Forces so that they come under the commissioner’s scope. I acknowledge the noble Baroness’s concerns about potential recruits. From the first day in uniform to the last, the Government are committed to all members of the Armed Forces and to supporting their families. On their first day of basic training, candidates complete attestation—as the noble Lord, Lord Lancaster, and the noble and gallant Lord, Lord Stirrup, mentioned—transforming them into recruits who are members of the Armed Forces. This means that they and their families are within the commissioner’s scope. The experience of a potential recruit—a candidate—is very important and, as such, we have set a new ambition for the Armed Forces to make a conditional offer of employment to candidates within 10 days, and to provide a provisional start date within 30 days. However, as the noble Lord, Lord Lancaster, pointed out—the figure I have is more than 100,000—up to 150,000 candidates are applying to join the military at any one time. Bringing them into scope may vastly increase the workload of the commissioner, watering down their ability to focus on other key areas impacting service personnel and their families. To reassure noble Lords, the Government’s work on improving retention and recruitment is part of a package of measures aiming to renew the contract between the nation and those who serve. We are modernising and refining our policies and processes to attract and retain the best possible talent, highlighting that defence is a modern forward-thinking and forward-facing employer that offers a valuable and rewarding career. Our aim is to attract and recruit more, as well as to maximise the number of applicants who successfully enter and remain in the Armed Forces’ employment. Turning to Amendment 10, I will start to answer some of the points that the noble Earl, Lord Minto, raised concerning the definition of “families”. I again thank the noble Earl and thank the noble Baroness for her amendment. I acknowledge her concerns about providing certainty to all Members on the application of the Bill. I promised that during Second Reading, and I have apologised for the late arrival of the regulations. But the debate that we have had from my noble friend Lord Beamish and others about what should be in those regulations will be something that we can return to as the Bill progresses but also when the draft regulations are debated by this place and the other place. I welcome the Delegated Powers Committee’s report and thank it for considering the Bill so carefully. It provides a vital role in ensuring the appropriate degree of parliamentary scrutiny of delegated powers, and we will carefully consider its recommendations before Report. The families definition outlined in the regulations seeks to include all groups that have a close familial relationship with the serviceperson. In broad categories, the draft definition covers partners or former partners of a serviceperson, including those who are married or in a civil partnership, or someone in a relationship akin to a marriage or civil partnership—namely, a long-term relationship. I can hear others already saying, “What do you mean by ‘long-term’?” I just say that we are attempting to create a definition—I am just trying to head off my noble friend Lord Beamish before he challenges me on what “long-term” means. The serious point is that we are trying to have a wide definition, and we understand the difficulty that that raises. But we will take on board the points that people make. The draft definition also includes children of the serviceperson—either the serviceperson’s own children or their stepchildren—as well as their partner’s children or a child for whom the serviceperson is caring or has financial responsibilities. It includes parental figures of the serviceperson, which will include parents and stepparents and anyone who acted in a parental role when the serviceperson was under 18, such as a long-term foster carer or kinship carer. The definition also includes a sibling of the serviceperson, be that a full or half sibling or a stepsibling, or someone who legitimately considers themselves a sibling of a serviceperson through their upbringing. Again, noble Lords can understand some of the difficulty that may arise with that, but they can understand our attempt to capture as wide a number of people as we can. The draft definition also includes other specified relatives of the serviceperson or their partner where they are part of the serviceperson’s household, are financially dependent on them or are cared for by the serviceperson or their partner. It includes bereaved family members if they fall under any of the above categories immediately before the serviceperson’s death. Although the definition explicitly includes bereaved families, it does not specifically use the term “kinship carers”. The definition has been drafted to ensure that service personnel who are kinship carers, or kinship carers of the serviceperson when they were growing up, are in scope, thus giving biological parents and those who acted as a kinship carer the same access to the commissioner. Going back to the point made by the noble Earl, Lord Minto, that is why there is a difference between the definition here and some of the other definitions with respect to the use of “families”. Our intention is to try to draw that as widely as possible and, therefore, that is why there are some of the differences that the noble Earl mentioned. I hope that provides some of the reassurances that the noble Baroness, on both her amendments, is trying to achieve. I thank noble Lords for an interesting debate on this aspect of the Bill. We will again take into account the points that have been made and reflect on them, not least about the need for us to consider the draft regulations, as well as the points that the noble and gallant Lord, Lord Stirrup, made about recruit training and a need for us to consider where particular arrangements may be made. I ask the noble Baroness, Lady Smith, to withdraw her amendment.

My Lords, I am grateful to all noble Lords who have contributed to this fascinating debate on the two amendments in this group. Several of us have learned a lot, and some are now probably a little puzzled about the status of an engagement versus a civil partnership versus a marriage because, to most people, an engaged person is not the same. I agree with the noble Lord, Lord Beamish, that we might want to come back to that issue. However, I am particularly grateful to the Minister for clarifying His Majesty’s Government’s attempt to define family relationships broadly, because some years ago, when I was first on the Armed Forces Parliamentary Scheme, I was on a visit and was told of some frustrations of people not being able to get accommodation because of certain familial relationships that were not deemed to be actual relationships. The fact that the draft regulation is going to be broad in scope is welcome. The formal answer that the Minister gave when he was talking about foster relationships and so on probably covers the kinship aspects that we are looking for in that part of Amendment 10. We look forward to a further iteration of the draft regulations and definitions.

Let me correct something before we move on. I said that the Armed Forces Bill will come into force in early 2026. That is not correct; I misspoke, of course. The Armed Forces commissioner will be set up in early 2026. I apologise profusely for that error and hope that everyone who listens to our proceedings, legal or otherwise, now fully understands that I meant the Armed Forces commissioner, which, I suspect, is what everybody in the Committee thought I meant. Just for the sake of clarity, I mean the Armed Forces commissioner will be set up in early 2026. The Armed Forces Bill must receive Royal Assent by the end of 2026.

I am grateful to the noble Lord for clarifying that point. I suspect most Members of the Grand Committee were not necessarily listening so closely.

Oh!

Clearly, it was only I who was not listening sufficiently closely, but I understood it as being the Armed Forces commissioner rather than the next Armed Forces Bill. However, I will probably have to not move Amendment 10 at a later point in proceedings. However, the amendment has elicited a fascinating debate that allowed us to explore certain aspects of the recruitment process and, as the noble Lord, Lord Lancaster, pointed out, the group that sounds similar to, but has a different role from, that of the recruit trainees. I should very much like the opportunity outside Committee to talk further with the noble and gallant Lord, Lord Stirrup, and the Minister, because my sense from the debate was there may well be some value in thinking about making it clear that that part of the role of the Armed Forces commissioner would indeed be to pay particular attention to the situation of recruit trainees, for example. I realise the noble Lord, Lord Lancaster, said, “Ah but we must make sure that we do not overwhelm the Armed Forces commissioner”, and I completely understand that. The role as stated in the Bill is not just to be the ombudsperson with a different name; it is also clearly to be about promoting the welfare of persons subject to service law. The noble and gallant Lord, Lord Stirrup, made a strong case for looking closely at how recruit trainees are being looked after. So I may wish to bring back an amended amendment, or a different amendment, on Report. For the moment, I beg leave to withdraw.

Amendment 2 withdrawn.

Clause 1 agreed.

17:15:00

Schedule 1: Armed Forces Commissioner

Amendment 3

Moved by

3: Schedule 1, page 8, line 16, at end insert— “3A The Secretary of State must not make a recommendation to His Majesty under paragraph 3 until the recommendation has been laid before, and approved by a resolution of, each House of Parliament.”Member’s explanatory statement This amendment would mean the Secretary of State could not recommend a candidate to be appointed Armed Forces Commissioner to His Majesty until both Houses of Parliament have approved that candidate.

My Lords, Amendment 3— I will refer to Amendment 5 later—is like Amendment 4 in the sense that it covers parliamentary oversight of the appointment of the Armed Forces commissioner. It does so in different ways, but Amendment 3, standing in my name and that of the noble Lord, Lord Russell of Liverpool, puts forward one way of achieving this. In the Second Reading debate on the Armed Forces Commissioner Bill in the House of Commons, much play was made of the fact that the Armed Forces commissioner will be akin to the German armed forces commissioner. My right honourable friend John Healey, the Secretary of State, said: “The role is inspired by the long-established German parliamentary commissioner for the armed forces, which enjoys cross-party support in the Bundestag and support across the military”.—[Official Report, Commons, 18/11/24; col. 75.] He then went on to quote the present commissioner for Germany’s armed forces, who welcomes and looks forward to the new Armed Forces commissioner being installed in the UK. Here, my noble friend the Minister also referred to the inspiration from Germany for the Armed Forces commissioner when he said this at Second Reading: “The Bill was inspired by the long-established and successful German parliamentary commissioner for the armed forces, who has been championing and providing a voice to Germany’s armed forces for almost 70 years … Our proposed Armed Forces commissioner, like the German commissioner, will have the power to consider the full breadth of general welfare issues that may impact service life”.—[Official Report, 5/3/25; col. 302.] So, really, the spark that has done this is the German system. I have to say, that is where it departs a little. The German system looks at the thematic issues that will be the remit of the new commissioner and she can also look at general service complaints, but the way in which the German commissioner is appointed is very interesting and very different from what is being proposed in this Bill. At the moment, this is what is proposed in paragraph 3 of the new schedule to be inserted by Schedule 1: “The Commissioner is to be appointed by His Majesty on the recommendation of the Secretary of State”. So the Secretary of State will be the person who appoints this person and decides who they should be, but the German system is very different. The German armed forces parliamentary commissioner is established under the German Basic Law, which was framed in 1949 and, I think, clarified in 1956. The Bundestag parliamentary commissioner has some of the same remit as the proposed commissioner in the UK but there is the force of federal law behind him or her. Then, we come on to how the German commissioner is appointed. They are elected by the Bundestag, whose website says: “The Bundestag shall elect the Commissioner by secret ballot with a majority of its Members”. It goes on to say that candidates may be put forward “by the Defence Committee, the parliamentary groups” or groups of members of the Bundestag for this purpose. It says that there should be no debate and that there is a simple vote. It also states: “Every German who is entitled to be elected to the Bundestag and has attained the age of 35 shall be eligible for the office of Commissioner”. Although my noble friend and the Secretary of State have argued that this would be akin to the German system, I am not sure that it is, given the powers, process and parliamentary scrutiny that it has. Am I surprised that, in drafting this, they have ignored the bit about Parliament? No, I am not, because the Executive are never keen on giving up power or ceding it to Parliament. I have no doubt that, following this debate, the Minister’s civil servants will come up with umpteen reasons why this cannot be done and, if it was, that somehow the earth would stop spinning and the sun would stop rising. I have known my noble friend for many years and, as I always like to be helpful, I point out that there is a precedent already in the UK in the appointment of the Parliamentary and Health Service Ombudsman. I was not aware how he or she was appointed until I looked it up, but it is very much Parliament’s responsibility to appoint that individual. It is an open competition, and there is then an interview panel and final selection, which is done by the chair of the PACAC—the Public Administration and Constitutional Affairs Committee —an experienced ombudsman, and an independent panel. In that case, Parliament, via the role of those two individuals, has a direct say in selecting that person, so I am sure that we could come up with some system whereby Parliament could have a more direct say in who this person will be. It is a new role, and if the Government are arguing that they want to mimic or mirror the German system, Parliament needs to have a role in it. As the Bill stands, it has no role at all. I know that, in Amendment 4, the noble Baroness, Lady Smith, puts forward an alternative method of involving Parliament. We need to look at ways in which this could be achieved because, without it, the question of who the individual is—I will come on to this later regarding finance—could be at the behest of the Government of the day. If we are trying to give the impression that this person will be independent and accountable to not only the Armed Forces but the general public, and have an oversight role, having Parliament in that process is important. The noble Lord, Lord Russell, and I suggest that, before the nomination is sent to the King, it should go through both Houses of Parliament. That would give at least some oversight of the mechanism. Amendment 5, which is also in my name and that of the noble Lord, Lord Russell of Liverpool, is about the tenure of office, where again the Bill tries to mimic the German system but does not quite do it. Under the Bill as currently outlined, the tenure is a five-year term that can be extended but only for another two years. I wonder where they got the extra two years from. I think that was a suggestion in an annual report from one of the existing ombudsmen, but why two years? Amendment 5 proposes that the tenure should be up to two five-year terms. That would be in line with the German system, which is a five-year term that can then be repeated for another five years. I accept that, with public appointments, it is important to get a turnover of people, but with this role, first, it is a new role. Secondly, the individual is not going to be a member of the Armed Forces or a civil servant, so he or she might have to take a long time to get themselves up to speed with the way in which our Armed Forces are structured and operate. That is before, as the noble and gallant Lord, Lord Stirrup, said, they get their head around the complex nature of the Armed Forces family. The option of having an extra five years would be better. You only have to look at the workload in the present ombudsman’s report, which has seen something like a 25% increase in complaints. If this person is going to be hit with that from day one, they are going to be very busy. Added to that role—remember that this is a new and extended role—they will do thematic reviews. An obvious one would be on initial recruitment, for example. However, we have looked at this in the past in terms of the Nicholas Blake report into the sad deaths around Deepcut. The House of Commons Select Committee also did quite a major report on that back in 2006. It is sad that some of those things have not changed. It would be in order to extend that person’s tenure. It would also allow the individual to get a quicker under- standing and be able to follow through on reports. I think some of these thematic reports will take a long time to go through. If they are going to make a change and have weight, they are going to have to be done thoroughly without a time limit that means it will be passed to a new commissioner or, somehow, they will run out of time. All I will say to my noble friend is that I have looked at the German system; this is not the German system. It can be nearer to the German system if we make some amendments to it. I beg to move.

My Lords, I will speak to Amendments 4 and 21, which are in my name. As the noble Lord, Lord Beamish, pointed out, in some ways Amendments 3 and 4 are trying to bring a parliamentary dimension to the appointment of the Armed Forces commissioner. I fully agree with everything the noble Lord said on Amendment 3. There is no objection from these Benches to Amendment 3; it seems a very reasonable amendment. Indeed, I hope the noble Lord, Lord Beamish, is wrong, and the Box—although there is not officially a Box in Grand Committee—officials are not going to be able to give the Minister a bit of paper to tell him that there is no way on earth there can be a parliamentary vote. Some sort of statutory instrument and a negative or positive approval in both Houses seems to be de minimis. I would hope that His Majesty’s Government will think seriously about allowing some parliamentary involvement in the appointment of the Armed Forces commissioner. One of the problems I envisage with the straightforward negative or even a positive assent is that normally in Grand Committee, when we have a statutory instrument, it feels a little bit like the Scottish play: “When shall we three meet again?” Very often, it is the noble Lord, Lord Coaker, for the Labour Benches—now the Government Benches —and either the noble Earl, Lord Minto, or the noble Baroness, Lady Goldie, and me. Very often, there is nobody else other than officials who are required to be here looking at statutory instruments. If we are talking about a serious role for Parliament looking at the appointment of the Armed Forces commissioner, I would like to advocate for a stronger role, which may include a committee as outlined by Amendment 4. Amendments 3 and 4 are almost different models of how to make an amendment. The one from the Liberal Democrat Benches almost looks as if my colleagues, in drafting it, came up with something from the European Parliament, which is extremely detailed about what is happening. The noble Lord, Lord Beamish, has done something that is nice, skeleton legislation in the true Westminster style. However, I suggest that including a committee’s involvement—most logically the House of Commons Defence Committee, and maybe also the opportunity to speak to the House of Lords International Relations and Defence Committee—could be an important way of ensuring that the commissioner is a robust appointment.

17:30:00

At the moment, the idea that the Secretary of State can nominate somebody and the King simply appoints, without any parliamentary processes, seems somewhat negligent. I wonder what thought His Majesty’s Government have given to finding a way to allow Parliament to play a role. The noble Lord may say, “No, it’s not a statutory instrument and, no, it’s not going before a committee to be tested and questioned”, but maybe it could be or should be. If not, could the Minister tell us whether there is another way for parliamentary engagement? If the Armed Forces commissioner of the UK is intended to look similar to the German model, a parliamentary role would be relevant. It seems unlikely that we would want to go through a vote of the whole Chamber, particularly because we do not have provisions for secret ballots—but that is another alternative. This is really a plea for parliamentary engagement and for not allowing executive capture.

While I am speaking—I will not come back a second time—I want to raise a slight issue that I have with Amendment 5. The idea of two five-year terms seems wholly appropriate, but I was slightly concerned about the justification given by the noble Lord, Lord Beamish, which was that the person appointed might need time to get up to speed. If we have the right recruitment process and appoint the right individual, I hope they will be ready to do the job on day one and not spend the first five years working out what they need to do.

I have one slight question that came up in the speech from the noble Lord, Lord Beamish, and at Second Reading. The Armed Forces commissioner should not be a member of the Armed Forces or the Civil Service. Does that mean that they can never have been in the Armed Forces or Civil Service? That makes the field quite narrow. Assuming that that is not the case, what sort of job spec are we looking at and what sort of individual will the Secretary of State be looking for?

An individual can become commissioner if they have been a member of the Armed Forces, but not if they are a serving member.

I am grateful to the noble Lord for the clarification. That is what I had assumed on reading the Bill, but I wanted to make sure that that was absolutely right. The Minister has pre-empted Amendment 21 in some ways. It is simply a request for some clarification on the timeframe. We say in the amendment that the Secretary of State should publish an agreed timetable within one month. I suspect the Minister might find a reason why that should not be the case, but can we have a little more clarification on the timeframe? Will it depend on the individual appointed, or are His Majesty’s Government committed to the commissioner being in post on, say, 1 January 2026?

My Lords, I will briefly speak to the two amendments tabled by the noble Lord, Lord Beamish, to which I have added my name. We spent quite a lot of time during Second Reading and—I just checked—the first part of the Minister’s response from the Front Bench on the question of what difference this will make. I think all noble Lords who took part at Second Reading agreed that that is the essence. To that extent, Amendment 3 is quite important, because it goes to the heart of the question of what difference it will make. The reason why the German system works the way it does is that the German armed forces commissioner is very clearly the servant of the Bundestag; he or she sits in the Bundestag alongside the clerks and, indeed, if the Bundestag wishes it to happen, it can request that the armed forces commissioner can participate actively in debates around the armed forces in the Chamber. So it is a very different model, and it really does make a difference, because it is markedly different from what we are suggesting. This is the third attempt by us to try to get a form of ombudsman or Armed Forces commissioner to be more effective. We had the first one in 2008, the second iteration in 2016, and this is the third bite of the cherry to try to get it right. Clearly, if this is the third time we are doing it, it ain’t that simple. For all sorts of excellent reasons, the Armed Forces are a very particular culture and ecosystem, which they need to be to do what they do, but the flip side of having a really effective and disciplined military is that, for all sorts of reasons that it may not completely understand itself, it may be quite resistant to attempts that it sees as coming from outside—from people who do not really understand the culture and history and the things that are so important. The things that are not said are often more important than the things that are said. The problem is that, at the moment, some of us feel that, while this is very well intended, it is very cautious indeed. For the Secretary of State and the Ministry of Defence to retain as much ownership and control of this as will inevitably be the case is unlikely to make the sort of step change that I think a lot of us were hoping and aspiring to believe this new role could actually make. I think that this needs to be looked at—it is a probing amendment—and I ask the Minister and his colleagues to look very carefully. As part of my research for this proposal, I asked an individual who is actively involved in teaching in Shrivenham to take a poll after talking to a few people about this Bill. The first thing that this person found was that almost everybody spoken to in Shrivenham—this was last week—was not actually aware of this Bill. I do not know how well publicised this Bill is within the Armed Forces, but you would expect and hope that the flagship or leadership organisations of the Armed Forces would be aware of it and indeed might even perhaps been talking about it a bit. However, apparently this was not the case—but this was not a professional Sir John Curtice-type opinion poll but just somebody going around and talking to other people at Shrivenham. The other experience that this individual had, after a brief explanation of what this role was going to be, was an almost immediate response from everybody; people felt that what they described as the “rigidity”, with a small “R”, of the armed services culture would find it pretty easy to resist the type of role that is being envisaged. The bottom line is whether this is going to make a difference. It is important to be able to step back from this Bill and perhaps to take some more soundings from within the Armed Forces just to try to understand how likely they feel this will make a real difference. One senses that the onus of this Bill is coming primarily from the Ministry of Defence itself, and there is slightly less pull, if you like, from those parts within the Armed Forces and the extended family members that we were talking about. I am not sure how clearly their voices and experiences are being heard, because what we have at the moment clearly is not working. I shall move quickly to Amendment 5 and term of office. The German term of office is five years. It can be renewed; it usually has not been renewed. Almost every time a new commissioner is appointed in Germany, it is an ex-Member of Parliament—usually an ex-member of the defence committee that is the equivalent of our Defence Select Committee. So they come with some live experience and with a network within Parliament that they are easily able to access; they can be quite influential behind the scenes. That system works well but, again, I come back to what we asked earlier: will this measure make a difference? The aspiration is that this new role will make a discernible difference. In order for it to do that, clearly, it needs to do a lot of things differently to the way in which things have been done to date; and to find an effective way of doing things differently that works better. One will not get it right first time every time. It will be an iterative process: there will be successes, failures, brick walls and elephant traps. All sorts of things will be happening. Building up the types of resource and knowledge that will be required to gain momentum to carry this new role forward into the term of whoever follows the first commissioner will require giving the first commissioner the leeway and resources to make a difference. I just feel that things are a bit timid at the moment. If we focus on the complexity of the task that we are asking this new function to do—in particular, if we try to think, “What should this look like 10 years from now? What do we hope would be happening? How would this be working?”—and know both where we want to get to and where we are now, we can then gauge the complexity of the task of getting from A to B. That might result in looking at some of these aspects in a slightly different, perhaps more beneficial, way.

My Lords, I rise to speak to Amendment 3, not because I agree with it but because I agree very strongly with it. When my noble friend the Minister introduced the Bill, I remember him saying—quite rightly—that one of the important aspects of this Bill is that it puts this commissioner on a statutory footing. He was referring to the fact that he wanted this new post to have the weight of statute behind her or him. I simply support Amendment 3—if I refer to it again, I shall say “very, very strongly”—because it would give this post the authority of Parliament, in addition to being in statute, which would be a very good thing. I am interested in everything said by people who know far more than I do about the German system but, clearly, that is not particularly appropriate to a British political setting. Amendment 3, however, is absolutely perfectly suited to our political system. I know that, sadly, Governments do not tend to like amendments such as Amendment 3. If I were on the other side of the Room, I dare say my noble friend might have been arguing for Amendment 3. I understand that, in his current ministerial position, he may be guided by the officials behind him and say, “Well, it is too complicated”, but it is not complicated at all. It is a question of whether Parliament should be involved, which it should be. This is a major new post that we are creating. The process of confirming the appointment of whoever is put forward is something that Parliament should do. Incidentally, it is not just because Amendment 3 applies to this particular Bill; I would support Amendment 3 in every piece of legislation where this type of question arises. That is all I have to say on this matter. I do hope that, when he replies, my noble friend the Minister will at least acknowledge the, I would say, widespread feeling that Parliament must be involved in the appointment of this person; and convey it internally to his colleagues in the Government who would be resistant to an amendment of this kind. When it comes to the balance of power between the Executive and Parliament, I try always to be on the side of Parliament.

My Lords, I will speak in broad support of Amendments 3 and 4. Anything that strengthens the relationship between the Armed Forces and Parliament must be a good thing. I was taken by the commentary in the House of Commons around the similarities with the German system, although I was struck that, in reality, there do not seem to be many hooks in the Bill that reflect that, which is why I think we should look carefully at how we can reflect that.

17:45:00

I do not have a particularly strong feeling about whether I prefer Amendment 3 or 4. Indeed, there may be a third way, to use a previous Government’s favourite expression, although I confess that, once the noble Baroness, Lady Smith of Newnham, said that Amendment 4 could have been written in the European Parliament, I looked at it through fresh eyes.

It is interesting that Parliament already has a strong role. It is easy to forget that every year, through statutory instrument, it is Parliament, not the Executive, that sets the maximum numbers for our Armed Forces. It is a debate that is often hijacked to talk about many other things but, none the less, it happens here in Parliament. That is why it seems logical to me that there should be some relationship between them, whether through the Select Committee or votes in both Houses. As I said, I do not mind exactly how that mechanism works, but I would like to see a linkage.

A minor point on Amendment 5 is that we have been through many iterations of this role, from the Service Complaints Commissioner to the Service Complaints Ombudsman and now the Armed Forces commissioner with this Bill. Indeed, the noble Lord, Lord Beamish, and I have been involved throughout that 20-year period, in one way or another. I could be wrong, but my understanding, from distant memory of the original Bill, is that no serving member of the Armed Forces could be commissioner, but they also had to have left the Armed Forces for a certain period before being allowed to take up the position. I could be wrong, but that sticks in my mind; I think the period may even have been five years. Is that right? The Minister may not be able to answer that now, but it is relevant, because if a former member of the Armed Forces does this role, there probably should be a time gap.

As that was a direct question, I put it on the record that I do not know the answer. We will find it out, and if I do not write before the end of Committee, I will make sure that I say something on Report in answer to that.

It just came to my mind now, and my memory may be wrong, but I thought that was the case. If it was, it would be interesting to know why that provision has been taken out as the Bill has evolved, because it is probably quite a good thing. On the one hand, I can see the advantages of having a former member of the Armed Forces but, on the other, I would not want them to be in the Armed Forces on Friday and doing this role on Monday, which is why that time gap would be useful.

I will say very briefly that I support Amendment 3, but I have some reservations about Amendment 4, mainly because of its length and its attempt to dot a lot of “i”s and cross a lot of “t”s. At the back of my mind all the time when we are discussing this Bill is that the Armed Forces Act is more than 500 pages long, and this will add to that. It becomes a nonsense to have an Act of Parliament of such complexity and such an attempt to deal with every conceivable possibility affecting the Armed Forces. It arises, of course, because the three single-service Acts were pulled together in 2006. It has produced a monstrosity, so where we can avoid adding detail to the Armed Forces Act by this Bill, we should jolly well try to do so.

My Lords, I will speak briefly in support of the amendments of and comments made by the noble Lord, Lord Beamish, the noble Baroness, Lady Smith of Newnham, and others. In doing so, I declare an interest in having previously served as a member of His Majesty’s Armed Forces. Much has been made by His Majesty’s Government and other noble Lords of the attributes of the German model. A key feature of this model is its direct connection with and therefore accountability to Parliament. However, the Minister has previously stated that he feels that there is increased independence with the commissioner sitting outside Parliament—accountable to but independent of Parliament. There is a tension within these phrases that may be irreconcilable. We would all be keen to hear the Minister’s views on how to reconcile these tensions, which may even be contradictions. I also support the comments made on term limits. We have heard from the noble Lord, Lord Beamish, about a limit of five years plus two for a total of seven years. In the corporate world, term limits often extend to two terms of four years, for a total of eight years, or three terms of three years, for a total of nine years. One of their key attributes is to allow for continuity and the retention of corporate memory, which still allows for a refresh and therefore introduces new experience into the mix within what is deemed an appropriate timeframe. I would like to hear from the Minister on why he feels seven years is an appropriate timeframe, as opposed to eight, nine or, as in this case, 10 years.

My Lords, the very interesting amendments under consideration in this group all seek to push the Government on the terms of appointment of the commissioner. This is always one of the seminal issues when we debate the establishment of a new position in law. Amendment 3 appears—the noble Lord, Lord Beamish, can elaborate on this in his closing remarks—to interfere with the principle of exclusive cognisance. His amendment insinuates that Parliament must hold a confirmatory vote on the Secretary of State’s preferred candidate for commissioner. As other noble Lords have mentioned, it would be very interesting to hear what the Minister has to say in response. Amendment 4, in the name of the noble Baroness, Lady Smith, creates a mechanism for appointment similar, as has been mentioned, to the committee system in the United States. Their congressional committees are required to hold confirmatory hearings and votes, and they have the power to decline a president their appointments. I am not certain how such a system could be translated into our particular constitutional model, but I am again quite intrigued to find out. Finally, on Amendment 5, I too think there is merit in this proposal, so I agree with the noble Lord, Lord Beamish. If the particular commissioner is successful and executes their duties effectively, why should they not be able to hold that appointment for two full terms of five years? You would get a proper continuation as a result of a slightly extended period. I do not quite understand the two-year extension; it seems neither one thing nor the other. I look forward to the Minister’s response.

My Lords, I again thank my noble friend Lord Beamish for bringing his experience and knowledge of many years. As he says, we have known each other for a long time, and I appreciate the contributions that he has made in the past and will make in the future—on not only Armed Forces and defence matters but many other things. All the points made by my noble friends Lord Beamish and Lord Stansgate, the noble Lords, Lord Russell, Lord Lancaster and Lord Wrottesley, the noble Baroness, Lady Smith, the noble Earl, Lord Minto, and the noble and gallant Lord, Lord Craig, were really interesting. Before I come to my formal remarks, as I said at the outset, I can say that we will meet between Committee and Report to consider the involvement of Parliament. At the moment, the House of Commons Defence Select Committee is how we see the involvement of Parliament, and I can tell my noble friend—this answers other noble Lords’ questions—that we will discuss the length of time and whether the Government still consider that the most appropriate period. I say that without any promise that we will therefore change or alter it. I have heard what noble Lords have said and the points and contributions they have made. It is certainly my intention to meet to discuss their points to see whether we may move or if the Government are not persuaded. We will meet to discuss all of that. I will just reply to some different points before I come to the formal remarks. My noble friend Lord Beamish will be happy that his amendments have at least caused the Government to say that we will have to reflect on the points he has made. He knows me well enough to know that I do not say that as a way of assuaging his views but as a genuine engagement that we can have to see whether we can take forward his points. I say that to the noble Baroness, Lady Smith, and the noble Lord, Lord Russell, with respect to the support they have given to those amendments and the various comments noble Lords have made. I take the point that the German system is not exactly the same. As my noble friend pointed out, in the Secretary of State’s speech he spoke about our system being inspired by what happened in Germany. That is the point. It is not an exact replica but it has been inspired by it. In discussions with the German commissioner we have taken that forward. As the noble Lord, Lord Russell, helpfully pointed out, the German commissioner sits in the Bundestag. The German model allows for their commissioner to be there and join in and that is not the role we will have for the commissioner, so again, it is different in that sense. There are differences, but the fundamental question goes back to the point the noble Lord, Lord Russell, made and that the noble and gallant Lord, Lord Stirrup, made earlier; we are setting up the commissioner to answer the “So what?” question. In answer to the question on how the military feel about it, they are very supportive of this commissioner being set up, so that is really important. The noble Lord, Lord Russell, is right to challenge us; this is a difficult balance between independence and accountability. We are attempting to say that the commissioner has to be independent to command the respect of all of us and to do the job we need them to do: to act without fear or favour to deal with some of the very real issues we face. But we want them to be accountable as well. My noble friend Lord Beamish has said that accountability should be done through confirmatory votes of both Houses of Parliament. The Government’s view, as it stands, is that that accountability should be done through the Defence Select Committee, with the pre-appointment scrutiny process there and its ability, once the appointment is made, to consider that further and report to the Secretary of State on its view of the suitability of that particular candidate. The noble Baroness, Lady Smith, has added another possible dimension to it. All of us are wrestling with independence versus accountability. That is a very real dilemma for all of us, but it is a balance we seek to achieve. I will say a little about the Armed Forces commissioner and the process as we see it. I want to answer my noble friend’s question as it shows a difficulty. My noble friend asked why the appointment is on the recommendation of the Secretary of State and not a parliamentary appointment. He noted the fact that it was pointed out at Second Reading that the Parliamentary and Health Service Ombudsman was a precedent for the sort of process he wants. However, there are several examples of similar roles where appointments are made on the recommendation of Ministers and not subject to the same process as the Parliamentary and Health Service Ombudsman.

There are, but there is also a very good example in the Parliamentary and Health Service Ombudsman, where Parliament has a clear role in appointing that person. The problem with the pre-hearings by the Select Committees that my noble friend suggests is that they can make a recommendation but it does not have to be followed.

18:00:00

It is absolutely correct that the Defence Committee can make a recommendation but the Secretary of State does not have to follow it. I suggest to the Committee that, if the Defence Committee of the House of Commons said that the person who had been recommended or offered the post of commissioner was totally unacceptable and inappropriate—not somebody who should be given that position—the Secretary of State would find it difficult in those circumstances not to accept that advice, although of course they could.

I accept my noble friend’s point, but is it actually in the Bill, or would it be under guidance afterwards? If he is setting great store by its role, it should be in the Bill.

I think my noble friend knows the answer to his own question, which is: no, it is not in the Bill—that is what he wants me to say. From his own experience, he knows that the Secretary of State said in the other place, and read into the record, the importance of the role of the Defence Committee and the importance of its recommendations. Of course, the Secretary of State is accountable to Parliament for that. In my view, if the Defence Committee was so exercised about a particular appointment and had concerns about it, the Secretary of State could of course still go ahead but it is difficult to believe that they would not consider that very deeply before confirming that appointment.

The noble and gallant Lord, Lord Craig of Radley, disagreed with Amendment 4 on the grounds of its length. Might His Majesty’s Government be open to a very small amendment, which could be “the Secretary of State appointing, on the advice of the Defence Select Committee”, or something of that ilk? That would meet the noble and gallant Lord’s concern about adding too many words to statute, but it would put in the Bill the sort of parliamentary engagement that we might be looking for.

Without saying whether that is a good or a bad idea, what I have said is that—although this is not actually in the Bill, as my noble friend said—clearly, our view is that going through the Defence Committee is the appropriate parliamentary involvement. We have said that we can consider the points that have been made in Committee, and I have said that we can meet to discuss them. Alongside that, we can discuss the length of term.

The Minister will recall that, in the last few years, there has been a degree of disquiet, particularly on his Benches, about the view that certain appointments that should have gone through a fairly balanced process have veered slightly off course due to political interference. It just so happens that, about three hours ago, I was talking with a distinguished Cross-Bench colleague who is currently involved in two very senior independent appointments, helping the Government. This colleague had a discernible frustration that, in both of these cases—which are completely current and took place last week—a ministerial colleague of the Minister, not in the same department, overruled the recommendations of the advisory panel on who should be appointed or who the best candidates were. A completely different individual has been inserted from outside.

All I can say in response to the concerns raised by the noble Lord is that we believe that the appropriate way for Parliament to be involved is through the Defence Select Committee. I have heard the points that noble Lords have made with respect to that. The appointment of the Armed Forces commissioner will be subject to the full public appointments process, overseen by the office of the Commissioner for Public Appointments, so we would expect it to be a rigorous and open recruitment process. We expect the Defence Committee to be involved in the recruitment process and to consider the appointment once it has been made. Of course, the Secretary of State is ultimately the final decision-maker, but, as the noble Lord said, he will carefully consider what the chair of the House of Commons Select Committee says.

I point out to the Minister that the two processes that I was talking about were run under precisely the rules that he has just laid out.

All I can say is that our belief, understanding and intention is for it to be an open and transparent process, subject to the scrutiny of the House of Commons Select Committee, which we would see as having a role. Of course, in the end, the Secretary of State ultimately has responsibility for the decision whether to appoint or not. We in this Committee all know the power, influence and significance of the Select Committees of both Houses. They are powerful and significant committees that carry a huge amount of influence and weight and, as I say, the Secretary of State will fully take them into account before making a final decision.

On the appointment process, which we touched on earlier, I am grateful that the Minister will come back to me about the air gap, but could I entice him to offer a view as to whether he thinks it would be appropriate to have an air gap to prevent a member of the Armed Forces doing this job, in the same way, perhaps, as Ministers have a two-year ACOBA process after leaving their posts? Even if there was not going to be an air gap, perhaps a serving member of the Armed Forces could not apply for the job because there would then be an overlap that could potentially influence behaviour. It is important that there is a gap, and I would be fascinated to know what the Minister’s view is.

It is very tempting to say what I think about this, but I am not going to. I think the Committee will share my view that the noble Lord, Lord Lancaster, has raised a very important point and that we need to properly understand what the law is at the moment and look at his reference to what happened or did not happen in the past. I cannot, therefore, stand here and give a view, because I do not know—that is the honest, open and frank answer. But either in Committee next week or, certainly, on Report, I will be able to tell noble Lords what the situation is. At that point, I will tell the noble Lord, Lord Lancaster, what my personal view is, but for the moment I thank him for a very important question about whether there should be a gap when someone leaves the Armed Forces before they can become the Armed Forces commissioner. It is an important point of principle, on which we will get the proper legal answer. I will now read into the record the formal pages of my brief, which is necessary. I thank my noble friend Lord Beamish, the noble Lord, Lord Russell, and the noble Baroness, Lady Smith, for their views on the Bill. I acknowledge their concern about the scrutiny of the commissioner’s appointment and their views on the length of the term. I reassure noble Lords that we are confident in the existing pre-appointment scrutiny processes giving rigorous and independent scrutiny by Parliament, with the House of Commons Defence Committee testing that the preferred candidate has the right skills and experience and giving its views before a recommendation is made to His Majesty, and a timely appointment process. As I have said, noble Lords have made good and fair points—I have not mentioned my noble friend Lord Stansgate, but he also did—and we are happy to consider further how we can take all this forward. I hope that, with that reassurance, my noble friend will not press his amendment. I am also happy to consider further not just the scrutiny but the right length of tenure to balance the commissioner being able to effect meaningful change with bringing a fresh perspective to the role. On Amendment 21, we wanted to say a little bit more on the implementation timeframe, just to clarify. I share the noble Baroness’s eagerness to see the commissioner’s role established and their office operational as soon as practicably possible. We have not included that level of detail in the Bill, as she points out, as that would be an unusual legislative step. However, I am happy to provide further details on the intended timeframe for employing the commissioner and establishing their office as soon as possible. The noble Earl, Lord Minto, also mentioned the timeframe. As the Committee will be aware, several factors affect the commissioner’s appointment. Notwithstanding the role of the Defence Committee pre-appointment scrutiny, the commissioner will be appointed following completion of the Bill, and the role will be subject to a full public appointment process, regulated and overseen by the Office of the Commissioner for Public Appointments. In addition, the intended timeframe will need to factor in the passing of the necessary secondary legislation, drafts of which have been provided to noble Lords. We expect that the process will continue in 2025 and, in parallel, we will undertake the necessary implementation work to ensure a smooth set-up and a transition from the current Service Complaints Ombudsman position. Therefore, I can now confirm that we anticipate that the commissioner’s office will be stood up in 2026. I hope that provides the necessary reassurance to the noble Baroness. With the comments that I have made on considering the points of my noble friend Lord Beamish and others, I hope that he feels able to withdraw his amendment.

I thank noble Lords for what has been a very good debate around these two amendments. I hear what the Minister said about this person being on a statutory footing—I think this was stressed in the Second Reading debate. When we get to my Amendment 6, I will explain to noble Lords that that does not necessarily give the protection that this individual requires. My noble friend says that the Government wish the pre-hearing process to be done by the Defence Committee. I have no problem with that; I have tremendous respect for members of that committee and, having served on it for many years, I know the good work that it does. But what is to stop a future Secretary of State just ignoring that? That is why it needs to be in the Bill. I am not suggesting for one minute that either my noble friend or the current Secretary of State would do that, but we have to future-proof the legislation. We only have to look at the period of Boris Johnson as Prime Minister, when a lot of conventions that had been agreed were just thrown up in the air, including what the noble Lord, Lord Russell, referred to: appointments that had gone through and been agreed through the process, which were then ignored at the end. This is something that we need to come back to. I hear what the Minister said—that the Bill is not a duplicate of the German system—but that has been the unique selling point that both he and Ministers have made about why this is needed. I welcome further discussions on the time limits and term limits of the individual, and I hope that we can consider this again. With that, I withdraw my amendment.

Amendment 3 withdrawn.

Amendments 4 and 5 not moved.

18:15:00

Amendment 6

Moved by

6: Schedule 1, page 10, line 32, leave out “may” and insert “must” Member’s explanatory statement This amendment would require the Secretary of State to provide financial assistance to the Commissioner.

Again, this goes to the heart of the issue of independence. I accept that the Government wish to ensure that this individual and the office are independent and cannot be influenced, or have their work affected, by the Ministry of Defence. But at the moment the Bill says: “The Secretary of State may make payments and provide other financial assistance to the Commissioner”. I am sure my noble friend will turn around and say, “Well, it would be unheard of for a Secretary of State to withhold money”—in a minute I shall come on to an example of where this actually happened. But I learned a long time ago in local government that, if you control the purse strings, you control a lot of influence in terms of how you can affect the actions of any public body or any activity. Again, referring to the German system, I accept, as my noble friend said—that this is not a direct copy of the German system. But there are safeguards in the German system because it says in the federal law there that the necessary staff equipment is made available to the commissioner for the performance of his or her functions, and it is a separate piece in the Bundestag’s budget. This is the budget that is drawn up by the Bundestag. It is a draft budget that is done by the Council of Elders and is then agreed to by the Bundestag. So, again, Parliament has a direct say. It has not been down to a Minister to decide that the Armed Forces commissioner will or will not get the finance, which is very different to what we are proposing here. My noble friend said in the Second Reading debate and again today that the difference is that this will be put on a statutory footing and, therefore, that will make all the difference. It will not. The Intelligence and Security Committee is on a statutory footing under the Justice and Security Act 2013. I presently chair the committee, and it has not had its budget raised for the last 10 years. It has now got to a point where crisis talks are taking place over whether we can carry out our functions as a committee. That is because the previous Government took a clear decision not to increase the budget, even though we asked for moneys to be brought forward. So, again, just because things are on a statutory footing that does not mean that somehow they will be insulated from a future Secretary of State or Government —I am not suggesting that my noble friend or the Secretary of State would do this—who may not like what the commission is doing and may say, “We’re not going to give you another increase in your budget”. That is the death by a thousand cuts that has happened to the Intelligence and Security Committee. Likewise, I presume that the budget is within the remit of the MoD. I have not been a Minister in the Ministry of Defence, but I know the battles royal that there are over different priorities in the defence budget. That makes you wonder who would be arguing for this within the defence budget if it is coming across other things. Trying to be helpful, I am looking for other examples for the Minister of where we could perhaps have a different system. A different system would be, again, my old friend the Parliamentary and Health Service Ombudsman, whose money comes from the Treasury and is part of the Consolidated Fund, so it is not in a departmental budget. That at least gives some protection for that money. But this is a serious point, and how this can be remedied needs to be looked at. This is a simple amendment, changing “may” to “must”, but, without it, the individual in the role would, as I say, be very vulnerable. Who in the MoD is actually arguing for the Armed Forces commissioner in terms of budget? Are they arguing for this rather than for some piece of shiny new kit in a procurement round, for example? If we cannot have this amendment, some thought needs to be given before Report on, first, how the budget will be provided and guaranteed; and, secondly, how this will somehow be ring-fenced. Without that, it will be easy to kill this off, either by not giving it any finance at all or by cutting its budget over a number of years. Those are my points and that is the reason for this amendment. With that, I beg to move Amendment 6.

My Lords, this group of amendments seems quite similar in form to the previous one. The noble Lord, Lord Beamish, has presented a modest amendment that would change “may” to “must”. The amendment I am speaking to is a little fuller; it would take more lines in statute. Although the noble and gallant Lord, Lord Craig of Radley, is no longer in his place, I stand with some caution because I realise that my amendment runs to three lines. Its purpose is very similar to that outlined by the noble Lord, Lord Beamish. In many ways, his amendment does the job, and does so very neatly. Nevertheless, I will clarify a bit more why we feel that it is necessary to put in the Bill that funding and resources will be made available to the Armed Forces commissioner. It is precisely because, if there is no clarity and certainty on that, all the ambitions in the Bill are in danger. The idea is that the Armed Forces commissioner will be more than a glorified ombudsperson and that they will promote the welfare of the Armed Forces’ serving personnel and relevant family members, as well as promoting the Armed Forces more generally. How will the commissioner do that if they are not adequately resourced? The noble Lord, Lord Beamish, is absolutely right: this is a time of financial pressures. There is a real danger that the sort of role that can be cut is the role of the Armed Forces commissioner. Although I know that we have guarantees that defence expenditure will be increased and that we keep talking about the size of the defence budget, it is still very small, relatively speaking. If this post is being funded out of MoD funding, there is a danger that it will not be a priority. Maybe it is the role of the Minister for the Armed Forces to argue for this post and, at each budget round, to make sure that there are no cuts—death by a thousand cuts—but I would not be so sanguine. I would like the Grand Committee at least to think about the issues that the noble Lord, Lord Beamish, and I are raising in our similar but different amendments; and to consider ways of ensuring that, if the Armed Forces commissioner is to be brought into place, they are able to do the job that His Majesty’s Government and this Committee want them to do and which the Armed Forces need them to do.

When I saw Amendment 6 from the noble Lord, Lord Beamish, I put my name down in addition to his because of what I am holding in my hand: a fact sheet that was given to us at the very helpful briefing given by the Minister at the Ministry of Defence. I will read from the fact sheet; I ask your Lordships to look for the word “may”, because I cannot find it. It says: “Although funding for the Commissioner will be provided for from the MoD budget, the Bill contains several safeguards to ensure the Commissioner can operate independently of government”. It says “will” instead of “may”; that is on the fact sheet. I say this to whoever prepared it; it may have been one of the gentlemen or ladies behind the Minister. A slip of the verb may have produced it, but it does say “will”. We were talking in the previous group about allowing Parliament to have more ownership of, and more skin in the game with, this new role. Can I just suggest as an idea that, on an annual basis, the Defence Select Committee of another place has a session devoted to talking to the Armed Forces commissioner about the work that he or she is undertaking? In addition, I suggest that, on an annual basis, there should be a session held with the commissioner in camera specifically to discuss funding, resourcing and some of the issues that one may not necessarily wish to be aired in the public domain but which could be shared on a confidential basis with members of the Select Committee.

My Lords, I will be brief. The Government set great store by the independence of the commissioner. We all agree that that is vital, yet this amendment is necessary because the possibility is left open that it will not be properly funded. I find that remarkable. As my noble friend said in moving his amendment, this would detract from the independence of the commissioner. I do not see why the Government should be allowed to say that they are fully committed to this new post and to giving it the resources that it needs—this was on the fact sheet, which I also picked up; I should have brought it with me—while, at the same time, they will not guarantee this funding in the Bill, which will become an Act. That is all I have to say. I am afraid that I cannot quite imagine what my noble friend the Minister will say in response because this is so clearly something that will set in stone the importance of the work and independence of the commissioner.

My Lords, I will be equally brief. I come at this from a slightly different angle. I confess that I equally support the principle that, whatever happens, this post must be funded; indeed, I asked some Parliamentary Questions about this before commencement. An Answer to a Question on 14 February with the reference number HL4758 said that, in 2023, the post of the ombudsman cost £1.8 million. It is anticipated that, after the changes, the annual cost will increase to between £4.5 million and £5.5 million—a tripling of the cost. Those costs are modest and, I think, reasonable, although I am concerned about inflation—as in, inflation of the number of complaints and costs. There will be a tripling in the cost of this post as a direct result of the Bill. As I have mentioned before, the role of the ombudsman is just the tip of the iceberg. The unseen cost of service complaints at the bottom of the iceberg within the single services—we have already had an amendment suggesting that we would potentially increase eligibility, through the recruitment process, by at least 100,000—is enormous. There are no official figures on costs—well, there are such figures, but they are not in the public domain and I am certainly not going to put them there; the Minister may or may not wish to put them in the public domain in due course—but they are enormous. I am quite confident in saying that, over a 10-year period, they will exceed £100 million. That is a lot of money. There is competition in defence for money. All I am saying at this point is that we need to find a balance here. It is absolutely right that this system is in place, that our service personnel have the ability to go through this process, and that it is fair and properly funded, but I put a plea in: at a time when there is enormous pressure on defence, we must find that balance when it comes to scarce resource.

If this role works and changes the culture in the Armed Forces, should that not drive down the number of complaints coming forward? That is a benchmark for what it is going to do. The noble Lord knows as well as I do that the way in which different services deal with complaints is, frankly, ridiculous. If it were a business, it would have gone out of business a long time ago with the length of time it takes. It is not good for the victim or the service either.

I entirely accept the point made by the noble Lord. All I am trying to do is to put in a dose of reality as to just how expensive this process could be if we are not careful. There is enormous value in it, but can we please be mindful of balance of investment and of finding the right, efficient process that delivers value for money for our service personnel?

18:30:00

My Lords, this is an interesting section for me, as the Victims’ Commissioner, because it feels very much like déjà vu. Governments like to do the window dressing but they do not put in the greater detail that will put the pillars into this role. I want this to be a successful role. Yesterday, I was in—is it Havant? I should have learned my geography when I was at high school. I met all the military—their services, law and everything. There is a will to change the culture and to change for victims but, as I said at Second Reading, I worry that we have to resource this. I know that there is not a lot of money around and that defence has quite a high profile on its own ability but, in terms of this role being a success, I worry about the word “may”; the Bill says that the Secretary of State “may” give this for other staff. I say that because of my present situation looking at budgets. There are figures being made without consulting the Victims’ Commissioner, so I am conscious that there could be figures made without consulting the Armed Forces commissioner. Previous amendments looked at this commissioner coming in and being raring to go; actually, in reality and practicality, things will take the first three years after their establishment. As with any business outside this Westminster bubble, it takes many years to set up staff because the process of getting staff is so slow. It is also about enabling your network. It does not matter what that looks like: we have to ensure that we can make those resources available. Yes, I would like the costing to go down because there will be fewer victims, but, in reality, that could do a disservice to the gold-standard service that the commissioner gives. You are then going to whittle it down. I am really concerned about where we will get the resources. I do not want individuals to feel as though we are going to have all the grandeur and that we have committed to this as legislators but, in reality, when they go through the nooks and crannies of this, we have set things up to fail at the first hurdle. I say this in terms of not just the commissioner we put in place but the victims, the families and everybody else, because I know that there is a huge family in the military; I learned a lot about it yesterday. It is more important that we start as we mean to go on. I do support this Bill. I am not looking at the Minister because he is not in charge of the purse strings, but I know—I have the scars to prove it and am still doing it—that, if you do not set up this role as it should be, it will absolutely do a disservice to the people who are desperate to have that voice of an independent.

My Lords, I too will be very brief with these amendments. I suggest that it is difficult to see how one should quantify what constitutes adequate assistance for the commissioner. Of course, the commissioner must have the necessary resources to execute their duties efficiently. The Explanatory Notes estimate that, as my noble friend Lord Lancaster pointed out, the cost of this new office will be between £4.5 million and £5.5 million; that is considerably larger than the current cost of the ombudsman, which is £1.8 million. The funding, therefore, has been expanded. Is it sufficient? Furthermore, as is the usual course, the Secretary of State will have to ensure that the commissioner receives the correct level of support. I am minded to conclude that these amendments may not be entirely necessary.

I thank the noble Earl, Lord Minto, for his remarks and the points that he made. I also thank other noble Lords. Again, let me say something about the general point around the reason for the Armed Forces commissioner; this was alluded to by the noble Baroness, Lady Newlove, and referred to by my noble friend Lord Beamish. I have made my point. The noble Baroness and my noble friend were at Second Reading, so they know that I made the point about the statutory footing for the post then. This is my personal view, as well as a ministerial view: it is of huge significance when the British Parliament, because of its concerns about some issues happening in the Armed Forces, establishes a statutory person or body—I forget the legal term—to undertake investigations into issues of general welfare concerns that can be raised by a wide cohort of regulars, reserves and their families. It has been given a statutory footing, rather than being a single response to a particular horrific event, although of course it is important to have an inquiry if something happens. To have a standing statutory office responsible for dealing with some of the issues that we have talked about and are all appalled about, with a statutory legislative basis, is significant. I can take off the ministerial hat and become a citizen—and it means something for the vast majority of the people in this country to say that the legislative will of Parliament is that a statutory body has been set up to do something. The noble Lord, Lord Russell, raised the issue of culture. The statutory body or office of the Armed Forces commissioner will make a significant difference to individual investigations. As well intentioned and important as they are, although they can shine a light, they cannot get to an overall pattern of dealing with issues that arise and are brought to their concern. My noble friend raised the issue of it being statutory. I realise and agree that, on its own, that does not matter and will not make a difference, but it is of huge significance as a starting point for setting up the office. I will deal with the particular points as I go through, and I want to take up a point that the noble Baroness, Lady Newlove, made. Part of what we have in the Bill is the ability to have transition arrangements, moving from the end of the term of the Service Complaints Ombudsman at the end of 2025 to the new arrangements —the transition to the office that we want to set up in early 2026 to try to overcome any particular problems that occur. I take her point about trying to ensure that we get that office up and running as quickly as possible, notwithstanding the fact that, when you set something up new, there are inevitably things that come up. But I thank her for raising that point. I shall come to the point on resources when I have made some general points, and come back to other points that noble Lords have made. Amendments 6 and 7 relate to the financial resources available to the commissioner. Both amendments aim to ensure that the commissioner has sufficient funding. The noble Baroness’s amendment would also ensure that they have practical assistance now and in the future to undertake their functions. I reassure my noble friend Lord Beamish and the noble Baroness that I fully support and share their intentions. It is crucial that the commissioner has the tools that they need, and the Bill has been designed to ensure that that is the case. Therefore, the intent behind this amendment is critical and acutely observed. I want to point something out to noble Lords and try to answer the points that they are raising. The Secretary of State has an obligation in Clause 4, under new Section 340IA(7), to “co-operate with the Commissioner so far as is reasonable”. It says that the Secretary of State “must, in connection with an investigation … give the Commissioner such reasonable assistance as the Commissioner requests”. That ensures that they have the necessary assistance from the Secretary of State to conduct their work effectively. In that instance, in dealing with investigations, the word “must” is included.

If it is already in part of the Bill, I cannot see any reason why the Minister should not include the amendment. He may wish to do what the department has already done in the briefing note that it gave us at the Ministry of Defence, in which it used “will”. I would settle for “will”.

We are trying to say that we certainly wish to see the investigative work of the commissioner funded. Therefore, “must” is appropriate in that particular instance, so we have included it there. Should the commissioner feel that their funding was insufficient to carry out their functions effectively, they will have the opportunity to raise this in their annual reports, which are presented to Parliament. As I have said, the Secretary of State is accountable to Parliament, and this mechanism would give the ability to scrutinise and challenge any funding decisions. I suggest that a Secretary of State would find it quite difficult to defend themselves against the charge that an Armed Forces commissioner reported to Parliament in their annual report that they had been insufficiently funded to undertake the requirements expected of them. As the noble Baroness, Lady Smith, and other noble Lords highlighted, the Explanatory Notes estimate that the running costs of the commissioner may be in the region of £4.5 million to £5.5 million. This represents a significant increase in the funding for the ombudsman, which was £1.8 million in 2023—a point that the noble Earl, Lord Minto, noted. While wholly independent of the MoD in their role, the commissioner will still be required to abide by the financial rules, regulations and procedures laid down by both His Majesty’s Treasury and the MoD in the commitment of their financial resources. I hope that this provides some reassurance to my noble friend, the noble Baroness and other noble Lords on the Committee. As I say, we intend to ensure that the commissioner has adequate funding and practical support, both now and in future. With that, I ask my noble friend to withdraw his amendment.

I am very grateful to my noble friend, but the quick answer is: no, it does not. There is a point that I think he is missing. I say this with no disrespect to him or the current Secretary of State but, as Robin Day famously said, he, like all of us, is a here today, gone tomorrow politician. We have to ensure in legislation that this continues on into the future. The Minister gives an optimistic view that, somehow, having a statutory basis for this gives it some type of protection. Well, I am sorry, but I gave the example of the ISC—it does not, and I assure him of that. He said that the commissioner could raise this in an annual report, but I suggest that he reads at least the last eight years of the annual reports and statements—one is coming out next week—of the Intelligence and Security Committee, where this point has been made constantly and ignored by the last Government. That is a body that is on a statutory footing. Not wanting to get in the hierarchy of scrutiny, I note that you could argue that that is a little different to what we suggest here—but, obviously, for the victims, it is not. So, without that, the Minister may be fine, but I am looking to the future. We perhaps have to have discussions about this. If the Minister has already given us a briefing note saying “will”—the noble Lord, Lord Russell, argued that—I would be happy with “will”, because that at least defines it compared to “may”. Discussion needs to be had about where it is within the MoD budget because, as the noble Baroness, Lady Smith, said, you suspect that the Min AF or Veterans Minister will argue for this department, but they are the only voice in there doing that.

18:45:00

The noble Baroness, Lady Newlove, clearly holds a very important role. She would no doubt argue that, if we do not give the Victims’ Commissioner the money, you can publicly shame Ministers—but, clearly, Ministers are quite happy to be publicly shamed and to ignore that. Without that in this piece of legislation, if it is “must” later on, I cannot understand why it cannot be the same here. With respect to my noble friend, there is also a big difference between the use of “must” there and here, because that is talking about investigations in terms of that context, and the actual context of providing finance.

I shall withdraw Amendment 6, but we need to come back to look at this. As I say, if my noble friend wants a halfway house, I am quite happy to use the Ministry of Defence’s own word from its briefing, “will”, if that gets over the line.

Amendment 6 withdrawn.

Amendment 7 not moved.

Schedule 1 agreed.

Clauses 2 and 3 agreed.

Clause 4: Commissioner’s functions in relation to general service welfare

Amendment 8

Moved by

8: Clause 4, page 2, line 35, at end insert— “(2A) A “general service welfare matter” may include issues relating to the wellbeing of, and provision of support to, the children, families and other dependants of serving and former members of the armed forces, including but not limited to—(a) the provision and operation of the Continuity of Education Allowance,(b) the provision of special educational needs tuition, and(c) the maintenance of service families’ accommodation.”

My Lords, Amendments 8 and 9 are in my name and the name of my noble friend Lady Goldie. I also thank the right reverend Prelate the Bishop of Norwich for adding his name to these amendments. I know that he is particularly concerned with these issues of welfare and their impacts on the families of our Armed Forces personnel. These amendments seek to ensure that the commissioner will consider both the educational needs of service families and Armed Forces pensions. They therefore seek to expand on the somewhat limited definition of general service welfare matters in the Bill. I will preface my remarks by acknowledging that we have not presented an exhaustive list—nor do we intend to. But we believe that these issues are of sufficient importance to warrant debate during our deliberations today. Many Armed Forces families depend on private schools. By the very nature of their service, personnel frequently find themselves moving locations, be that through overseas deployment or reassignment from one garrison or airbase to another. This poses a number of welfare concerns. It requires service personnel to either uproot their families or put them into an independent school, which allows their children to remain in a familiar educational setting. Imposing VAT on fees for independent schools will regrettably result in higher fees being passed on to the service men and women, who are simply trying to ensure the continuity of their children’s education. I impress on the Minister that charging VAT on private school fees for military families will make becoming or remaining a service member less attractive, not more. In response to this and in the interest of fairness, the Government have decided to uprate the continuity of education allowance. However, as my noble friend Lady Goldie has been keen to highlight through her Oral Question on 5 February and her letter to the Minister, there is real concern that this uprating will not be sufficient to cover the new higher fees. Unfortunately, this has the potential to negatively impact both recruitment and retention. The issue that I have outlined is even greater when one considers the provision of special educational needs for the children of service personnel. There are already significant barriers to service families receiving adequate support for their children with special educational needs. It can take up to two years to receive an education, health and care plan from the local authority but, given that service personnel often find themselves relocating, this process is made all the harder. There can be no doubt that the education of their children constitutes a serious welfare matter for those serving in our Armed Forces. All parents want the best for their families, and ensuring that they will not have to withdraw their children from school, or that they will be able to support their child with special educational needs, impacts on their morale. This is evidenced by responses to the Armed Forces Continuous Attitude Survey, where in 2024, 62% of respondents reported that the impact of service life on their families was the main reason for leaving the services. We know that more must be done to improve this, and I am concerned that some of the Government’s measures regarding education may have the reverse effect. The intention of Amendment 9 is to confirm with absolute certainty that the commissioner will consider pensions and the role they play in recruitment and retention. Let us be in no doubt that they remain one of the major benefits offered to service personnel. In their Autumn Budget, the Government proposed charging inheritance tax on the death-in-service payment while a service member is not on active duty abroad. We know that the benefit will continue to be exempted when a service member dies when deployed on active duty, but the exemption will not apply when the death occurs at home. This is nothing less than an injustice. If Sergeant Jones, for example, has an unfortunate accident while driving his car and passes away, not on active service, he will be penalised. He may have just come back from an active war zone the day before, where, had he been killed, his benefit would have been protected. The principle here is surely that it does not matter where a service member dies; their families will continue to grieve regardless. They will still require support, both financial and emotional, and the new commissioner should be able to provide that. This Bill is aimed at protecting the retention and recruitment of Armed Forces personnel. It seems fitting that the commissioner must therefore consider the education of service families and death-in-service payments. I beg to move.

My Lords, I will speak to what I hope is the last of my amendments today, Amendment 11, on the further matters that the commissioner may investigate. Before I speak to my amendment, I have a question that arises from the two amendments in the names of the noble Baroness, Lady Goldie, and others, and so ably spoken to by the noble Earl, Lord Minto, which is about the scope of the commissioner’s role. I think I heard the Minister say earlier in response to Amendment 2 that the purview of the Armed Forces commissioner applies as long as somebody is in uniform, from the day of attestation, and I understood it to be for the time that the person is in uniform, and that it did not also apply to veterans. I would be interested to know whether I have misunderstood or whether the amendments—

I apologise if I did not make this clear. The fundamental principle of the Bill is that the people who are in scope are those who are subject to service law, and their families. That is a really important point. The other point is that veterans are not in scope for the commissioner.

I thank the Minister—I am most grateful to him for clarifying that. In which case, do I understand it correctly that Amendments 8 and 9 potentially go beyond the scope of the Bill because they talk about former members of the Armed Forces and their dependants? The Minister can come back to that, but I was slightly puzzled when I read those amendments. Amendment 11 covers something that I hope is in scope, asking that the Armed Forces commissioner look in particular at certain more minority members of the Armed Forces. As seen in relatively recent reports—the Atherton report and the Etherton report—women and LGBT minority groups in the services have in the past been subject to particular disadvantages. There may also be other groups, so in many ways, this is a probing amendment. Amendment 12 in the name of the noble Baroness, Lady Bennett, which I agree with, follows a similar pattern. I am minded also to suggest that the Armed Forces commissioner could look at this, with special reference to recruit training. This means that, while I will not bring back Amendment 2, we might nevertheless bring back the idea of recruits in training being a particular focus of the Armed Forces commissioner—particularly in terms of that person being able to reach out to those in training and make them understand that role.

Now I understand what the noble Baroness is saying. She is talking about recruits in training, so once they have done the attestation.

Yes. For the purposes of this I am making a verbal amendment to what is on the page; I am not proposing to bring back an amendment like Amendment 2 that would bring in hundreds of thousands of other people. I do not think that was ever the intention; the drafting was not as clear as it might have been. The amendment laid in the Commons and re-laid here was broader than it should have been. Having listened to the noble and gallant Lord, Lord Stirrup, my sense is that we should not only be looking at women, LGBT groups, BAME people, non-UK citizens and disabled people in the Armed Forces. We should also be thinking that this might be the time to think about the Armed Forces commissioner not just being available for those going through training, but it might be sensible to make sure that the communications are made to them.

It is a pleasure to follow the noble Baroness, Lady Smith. I apologise to the noble Baroness and the Committee more broadly for not being here when my name was attached to earlier amendments. I am not going to complain much about my latest train delays, but I will warn anyone heading on the east coast main line tonight that there are overhead wire problems. I will speak specifically to Amendment 11 in the name of the noble Baroness, Lady Smith, to which I have attached my name. I will also speak to my Amendment 12. I apologise for jumping on the back of the noble Baroness’s excellently drafted amendment but I thought there was one element missing, which is what I have added here. This proposed new clause is headed: “Commissioner support for minority groups within service personnel”. The Committee will be familiar with my long-term concerns about service personnel who were recruited under the age of 18 and those in the services under the age of 18, which my amendment addresses. I think the way the noble Baroness constructed Amendment 11 set out very well the reasons why and how this should be done. Proposed new subsection 3 in my amendment says that the commissioner must “maintain up-to-date evidence on the experiences of these groups of service personnel and develop robust community engagement mechanisms”. To address the first point about evidence, I think we are all very aware of this. I know about the situation of recruits under 18 because of the work of the Child Rights International Network and a series of reports it produced. We are aware of cases of women in the military. We can think back to the situation where we saw a big national campaign about Gurkha veterans a few years ago. We often find out about these issues as they are drawn to our attention through the efforts of NGOs, campaign groups and the work of the affected personnel themselves—and then it is splashed all over the media. That is not the way in which the Government and Parliament should be made aware of what is happening. We need a regular, steady, reporting record that enables political direction to come from both Parliament and Ministers towards the military, saying, “There’s a problem here; something needs to be done about it”. Keeping up-to-date evidence and not relying on the efforts of volunteers and the personnel themselves is very much addressed by this. I have put this on the record before, but I have to note the way in which the situation of recruits under 18 has drawn the attention of the United Nations. We referred at Second Reading to one tragic suicide case but of course there are many. CRIN tells us that recruits under 18 are tragically three times more likely to die by suicide than their peers of the same age and two times more likely to die from suicide as adult joiners of the military. We have heard complaints about the Harrogate college and 13 reports of sexual assault cases in a year. I think I can probably guess what the Minister will say—that we have to leave this to the Armed Forces commissioner to decide for themselves.

19:00:00

Two groups back, we discussed the importance of a relationship between Parliament and the military or Armed Forces in general. Here Parliament would be setting down—the noble Baroness said that this may or may not be a probing amendment—and saying to the incoming commissioner that these are areas of concern. I tend to be of the view that that should be in the Bill, but it is important that we have this discussion.

I want to raise a specific point on which I could not find an answer when I was looking into this amendment, although this may be my own failing. I noticed that one of the groups identified is disabled Armed Forces members. I looked it up and the Armed Forces exemption from the UN Convention on the Rights of Persons with Disabilities has to be reviewed every five years. The last review that I was able to find was in 2019, so I ask the Minister to write to me on that. Maybe I just have not found it, but it is important that we know what is happening with that process, as it is part of our signing-up to that convention, which is relevant to this amendment.

While I am on my feet, I will raise one other matter. I am sorry I do not know whether this was discussed earlier, but I thank the Minister for sharing the draft regulations on who are relevant family members for the purposes of this. I have not had time to look at it in great detail, but one word in it struck me, which I would like to put on the record. Regulation 2(1)(f) refers to

“anyone who was a relevant family member … immediately before A’s death”,

where “A” is the service member. That word “immediately” just struck me, as it may not be entirely necessary. There may be more complicated family situations that that unreasonably excludes.

I guess I am thinking of some personal relationships that I have known of, which are not necessarily military. Sometimes marriages or civil partnerships break down, but that person still retains a close relationship with the person whom they have divorced or from whom they have split. We can imagine situations that are still very reasonable; they are all still part of a family, in a direct way. I wanted to put that on the record. I do not necessarily expect the Minister to respond now, but I wanted to raise my concern about that word “immediately” in those draft regulations and whether it is something that we need to think about.

My Lords, I speak in support of Amendments 8 and 9 in this group, in the name of my noble friends Lord Minto and Lady Goldie and the right reverend Prelate the Bishop of Norwich. I am really grateful, as I am sure a lot of members of the Committee are, to the Royal British Legion for its briefing on this. I speak as someone who was privileged to lead the legion’s public affairs team when we persuaded the noble Lord, Lord Cameron—David Cameron as he then was, the Prime Minister—to enshrine the covenant’s principles in law. I am particularly proud to have played a small part in that. I also very much welcome the consensus that now exists, both in this Committee and, I believe, across the House, on the commitment to ensuring that the principles of the covenant are honoured. I wonder whether we can simply consider these amendments to be, as I think they are, self-explanatory and logical. The issues they relate to are the provision and operation of the continuity of education allowance and tuition for children with SEND, which, as my noble friend Lord Minto mentioned, is so important and is related to an issue on which your Lordships’ House voted so overwhelmingly to ask the Government to think again—specifically in relation to non-domestic rating and private schools—only yesterday. These are important and crucial welfare issues, and they should be explicitly included within the provisions of the Bill, as should provisions for pensions and death-in-service benefits to serving and former members of the Armed Forces and their dependants. I hope very much that the Minister will listen to the Committee—and also to the legion, as the voice of the Armed Forces family—and accept Amendments 8 and 9 in this group.

My Lords, it is a privilege to follow the noble Lord, Lord Shinkwin, and the reflections that he has offered the Committee. I rise to support Amendments 8 and 9. I am grateful to the noble Earl, Lord Minto, and the noble Baroness, Lady Goldie, for outlining their thinking around this issue because it goes to the heart of how we as a nation care for and see the well-being of our Armed Forces and their families, as part of the whole package that we offer to them. As I think noble Lords know, I speak as the father of a member of the Armed Forces. It is often said that a parent is only as happy as their least happy child. On one level, I can imagine that it is also true that a member of His Majesty’s Armed Forces is only as happy as their least happy family member. So there is a pastoral duty here—one that is supported by many in the Armed Forces, including welfare organisations and our military chaplains—but both these amendments would help us really state the pastoral support that we as a nation feel is important for not only our Armed Forces personnel but their children, their families and their dependants. As has already been said by other noble Lords, continuity of education is vital for a family that may often move around a lot during the career of service personnel, when one or both of the parents may be on deployment. We must not forget the small number of wonderful state boarding schools that offer important support for service families. Moving on to tied accommodation, as somebody who has lived in tied accommodation all my professional life—most of it much more modest than what I live in at the moment—I know that the maintenance of tied accommodation and responsiveness to its condition and repairs has an impact on the state of morale of a family, and I am pleased to see that that is also mentioned, as are special education needs. Such needs are an issue not only when forces families move between different places and between different local authorities; this is also about CAMHS—child and adolescent mental health services. Often, the waiting list is two to three years. Moving out of an area has a profound impact on families in terms of getting crucial support for young people who are often in a very difficult state and who need support as soon as possible. On Amendment 9, the reality is that many Armed Forces families live with, right at the back of their minds, an ongoing sense of, “Will I get a knock in the middle of the night?” The noble Earl, Lord Minto, has already spoken about the injustice of what is being built in here. We significantly need the Minister to look at this—I urge him to do so—so that that injustice is removed. If you go to the National Memorial Arboretum, there is an incredible memorial right in the centre where the names of those who have lost their lives are carved into the Portland stone, and then there is a part of the wall that is totally flat and bare; it is very moving to move your hand along it and on to that flat stone awaiting, God forbid, future names. We owe to the Armed Forces and their families a sense of care if there is a need for a death in duty payment. So I am really grateful for the way in which the Minister has engaged around the Bill and engaged us in a really thoughtful discussion and debate about it. I look forward to hearing his comments.

I will speak to Amendments 11 and 12. It would be impossible to argue that the commissioner should not support the interests of women and minority groups, but I am not sure that this level of prescription, particularly in Amendment 11, serves the Bill well. We heard earlier from the noble Lord, Lord Beamish, about the volume of work that the commissioner will already inherit from the ombudsman, and there will be a lot of work on top of that. I am a founder member of the Equality and Human Rights Commission, so I obviously would want every public office to bear in mind and have due regard to the interests of those who have protected characteristics, as defined by the Equality Act 2010. The Minister can correct me if I am wrong, but I assume that the Armed Forces commissioner will be subject to the public sector equality duty, so that takes care of that aspect of their work. I accept that the noble Baroness, Lady Smith, may come back to me and say that that does not necessarily guarantee that the level of focus that she would rightly like to see paid to the problems that some minority groups experience in their armed service life will be fully taken care of in the way that she would want from this amendment. But my general point in arguing that the amendment may not sit well in the Bill is that one of the perennial themes of debate on the Bill, both here and in the other place, has been the much-welcomed independence of the Armed Forces commissioner. Independence implies a degree of freedom, discretion and flexibility. Therefore, it does not fit well with that level of independence to prescribe how that particular function would be carried out in such detail, in the way that this amendment does. I have seen a lot of equality and diversity programmes that specify a lot of detail. The end result has been that, when it comes to the end of the year and the prescribed annual report is published, it is little more than a tick-box exercise, and we would not want that to be the consequence of an amendment like this. For that reason, I reluctantly find myself unable to support these two amendments.

My Lords, I rise briefly to support Amendment 8 in the names of the noble Baroness, Lady Goldie, the noble Earl, Lord Minto, and the right reverend Prelate the Bishop of Norwich. The express intention of the Bill is to support those serving in His Majesty’s Armed Forces. There is no doubt that VAT on school fees will have an adverse impact on services families, who will more than likely find themselves serving overseas at some point in their careers, sometimes on multiple occasions, maybe as they start a family. A 20% increase in the cost of educating their children is absolutely a welfare issue, but it is equally a recruitment and retention issue. As we have heard from the noble Lords tabling these amendments, families serving abroad rely on the stability that boarding schools provide—largely independent and private schools, but also schools from the state sector. The decision of a family, or in this case an individual, to start or continue to serve in His Majesty’s Armed Forces—after all, they are likely to be not particularly well paid, compared to their equivalents in other areas of public service, let alone in the private sector—will often rely on the add-ons and the benefits offered as a result of their serving as a member of His Majesty’s Armed Forces. As with SEND children, given that there are concerns that any proposed top-ups may not fully compensate the additional costs of VAT on school fees, why are we not going to exempt members of His Majesty’s Armed Forces from this additional financial burden? It may—I suggest that it will—dissuade people from starting or even going on to build a career in the Armed Forces.

19:15:00

Since this is the last group of amendments and probably the last time that I will speak today, I thank everyone for their contributions over the last three hours or so. We will reflect on all the various comments that have been made. I turn to the amendment that the noble Earl, Lord Minto, moved at the beginning of this group, supported by the noble Baroness, Lady Goldie—obviously, she sent her apologies—as well as the right reverend Prelate the Bishop of Norwich, and the noble Lord, Lord Wrottesley. Other Members also gave their support. In his opening remarks, the noble Earl was right to remind us of the sacrifice of our Armed Forces and the esteem in which we all hold them. Although I do not agree with every aspect of his points, the intent of the amendment has a unity of support across this Committee. All noble Lords who supported him in moving the amendment feel that, and I thank him very much for that, because he has highlighted some important issues that I will come back to when I make the formal response. I shall deal with the point from the noble Baroness, Lady Smith, and my noble friend Lady Carberry, about the public equality duty, and I will try to deal with some of the concerns that she raised about various groups. I say to the noble Baroness, Lady Bennett, that they are draft regulations, so clearly the remarks that she made about the use of the word “immediate” have been heard. Between now and whenever the draft regulations go forward to become regulations, that may change or may not, depending on the reflections made with respect to that. But we have heard the point that she made on that. On the other point that she raised, we will write to her. The noble Lord, Lord Shinkwin, raised special needs, which I will refer to in responding to the points made by the noble Earl, Lord Minto, as I will with respect to the points made by the right reverend Prelate the Bishop of Norwich and the noble Lord, Lord Wrottesley. I commend noble Lords for highlighting some of the important concerns facing our serving personnel and their families. I reassure noble Lords that the commissioner’s remit is broad and covers all general service welfare matters. Indeed, under this remit, they will be able to investigate all the areas that noble Lords have singled out for consideration in these amendments—the continuity of the education allowance, special educational needs, service accommodation, pensions, death in service benefits and the welfare of minority groups—should they consider these to be general service welfare matters within the parameters outlined in the Bill. That is a very significant statement to make at the beginning, and I hope it gives reassurance to the noble Earl that it is within the scope of the Bill, should the commissioner choose to investigate any of these matters as a general welfare concern. A number of these amendments make reference to the families of serving personnel. Let me reassure noble Lords again that the concerns of service families were at the forefront when drafting the Bill. We recognise that the ability to retain the most talented service personnel is largely influenced by the well-being of their families: as I have said before, this is the very reason why we need an Armed Forces commissioner. Relevant family members are already included in the commissioner’s scope and, as I have said many times this afternoon and early evening, will be defined in secondary legislation. The draft families definition regulations covering the definition of “family members” for the purposes of the Bill have now been distributed to all for consideration—and we have seen the report of the Delegated Powers Committee, with its recommendation on the scrutiny of this power, and we will come back to that on Report. I will read the current situation on inheritance tax, which is that: “Engagement with the Treasury has confirmed that existing provisions in the Inheritance Act 1984 will continue to ensure that deaths in active service of a warlike nature are exempt from Inheritance Tax. The Inheritance Tax technical consultation has concluded and detailed policy and legislative instructions on the new proposals are now awaited with a further technical consultation to follow. The Ministry of Defence awaits these details and will follow legislation as per Government proposals and guidance will be developed for members in due course”.

I am intrigued by this—and the more I think about it, the more confusing it gets. We are clear that, within the Bill, qualification is subject to service law. Of course, members of the Regular Forces are subject to service law 24/7, 365 days a year. It is about the definition of “active service”. Of course, Lee Rigby was murdered outside Woolwich Barracks. Would he, under the new provisions, now not be subject to this payment, or be taxed on it, even though he was probably walking back to work? Would an Army reservist who is claiming a day’s pay travelling to work, or on the way back from work, now not qualify if they were to have an accident? It is an absolute minefield. What would be useful, if I may say so, is a degree of consistency in how we seek to apply the law when we are using service law as a qualification, and subject to service law, as opposed this almost sub-definition as to on duty and off duty. Most service personnel would consider themselves to be on duty 24/7.

The contribution the noble Lord has just made shows the advantage of his experience and knowledge. We will certainly consider that, and I will write to him and circulate the letter to members of the Committee, because some of it is quite technical and legal, and subject to all sorts of various laws under different pieces of legislation. I shall ask my officials to reflect on the point. I could hazard an answer, but I will get a proper, official answer, send it to the noble Lord, copy it to all members of the Committee and place a copy in the Library. I hope that that is satisfactory to the noble Lord, because the points that he makes are important, and I do not want inadvertently to mislead or misinform the Committee. I turn briefly to some of the other points related to the points the noble Lord has made. I note that the significant Amendment 8, raising the Continuity of Education Allowance, special educational needs and service accommodation, refers to former service personnel. As the noble Lord will appreciate, the commissioner’s scope is deliberately tightly drawn to focus on serving personnel and their families, rather than former service personnel. As civilians, veterans already have full access to a range of mechanisms for support and redress and to enable their voices to be heard. Having said that, I have been in the noble Lord’s position, and I know that people sometimes say, “That amendment is not tight enough, it included something that is not within scope”, but that does not alter the fact that the intention of the amendment and of noble Lords, is to draw attention to issues of real concern with respect to serving personnel. As such, of course there are issues around special needs, which the Armed Forces covenant seeks to ensure are addressed properly. When service personnel go abroad, they take with them a form by which they can try to ensure that they are given support. Special needs is a very real problem. I have to say as an aside that I think that special needs is an issue for all of us across society, from what I understand from friends, family and colleagues. Notwithstanding that, there are obviously particular circumstances with respect to serving personnel, and that needs to be reflected. Certainly, the Armed Forces covenant seeks to address that by saying that nobody should be disadvantaged through their service, and special needs is an example of that. On the continuity of education allowance, I will not read out all the various statements in my brief. We have had a debate about it in Parliament, and I have answered questions. The noble Earl will have seen the rise in the continuity of education allowance to 90% of that cost, which—I tell him gently—was the policy of the previous Government, too. We cover that 90%. The impact on the behaviour of service personnel in their choice of education has been very limited in terms of the number of people who have changed their decisions on the basis of that change in the law. Whatever the rights and wrongs of it, very few people have changed their actions. Notwithstanding that, the noble Earl was right to raise it. We reflected on it as part of the challenge that the Government have and decided that an increase in the continuity of education allowance was important, whatever the rights and wrongs of the overall general government policy, which, obviously, I support. Turning to Amendment 9, I acknowledge the concerns of the noble Baroness about pensions and death-in-service benefits, which impact both current and ex-service personnel, as well as their dependants. The amendment seeks to specify pensions, and wider associated benefits for dependants, as a particular area for the commissioner to focus on. As I said, it also seeks to allow former members to raise issues about pensions to the commissioner. Pensions and death-in-service benefits for dependants are of course extremely important and are not precluded from the scope of the commissioner. In the case of pensions, there is already a set procedure that allows current service personnel and veterans to raise complaints: the internal disputes resolution procedure. These cases are assessed by discretionary decision-makers within the Defence Business Services authority. If unhappy, they—like the vast majority of us—are able to appeal these decisions to the Pensions Ombudsman. I reassure the noble Baroness that I am sympathetic to what Amendments 11 and 12 seek to achieve. The Armed Forces and their families represent a wide-ranging and diverse community, and it is important to acknowledge the experiences of minority groups and service personnel aged under 18 within the Armed Forces. I know that the noble Baroness, Lady Bennett, quite rightly, continually raises this issue. Her opinion on the policies for recruiting under-18s to the Armed Forces differs from mine, but let me make it clear, as she and every member of the Committee has, and as we discussed earlier, that any abuse of anybody is unacceptable and needs to be dealt with quickly and forcefully. It is important to address and tackle any matters when they arise that are unique to one or more of these groups. It is vital that any member of the Armed Forces can access the commissioner and trust that he or she will consider their issues, regardless of who they are, where they serve and what they do. I draw the Committee’s attention, as the noble Baroness, Lady Carberry, helpfully did, to paragraph 6 of Schedule 1, which adds the commissioner to the list of public bodies captured by the public sector equality duty. The commissioner will already have a duty under the Equality Act 2010, which will cover all the characteristics listed in the amendment. Finally, I assure the Committee that the commissioner’s reporting functions will enable the commissioner to report on any matters that have been raised and to make recommendations in relation to any issues related to minority groups—or, indeed, any of the other issues raised by the noble Earl, Lord Minto, and others. Let me restate that the commissioner will be able to investigate any matters that may materially impact the welfare of those who are subject to service law and their families. It is not necessary to specify this level of detail on any of these matters in legislation. In fact, creating a list of individual matters for the commissioner’s remit could suggest that these topics are more relevant or important than others and may indirectly narrow the scope of what they consider, which would not necessarily be a desirable outcome. It could also be seen as contrary to upholding the commissioner’s independence. In other words, as soon as one starts to generate lists, one always ends up with an (f) or (g) that says, “and anything else that may be of significance”. I hope that I have provided the noble Earl, Lord Minto, with the necessary reassurance. I thank all noble Lords and noble Baronesses for their contributions to this debate; I look forward to continuing our debate and discussion on further amendments on Monday.

My Lords, I also thank all noble Lords and noble Baronesses for another interesting debate. I will comment briefly on Amendments 11 and 12 from the noble Baronesses, Lady Smith and Lady Bennett. For the reasons that we have discussed, we do not believe that it is necessary to provide a list of groups that should receive special treatment from the commissioner. As we covered earlier, the Bill applies to all those who are subject to service law and their families. This includes all members of the regular forces and the Reserve Forces, not just a particular group of service members. This list is not exhaustive, obviously, but that causes an issue in itself. I thank the Minister for his comments. I have no doubt that he understands the issues raised. I am sure that he has received representations from those affected, and I know he takes a genuine interest in the welfare of all service personnel. Having said that, these are issues that the commissioner really should investigate; I hope that this will be the case once the office is established. For now, I beg leave to withdraw my amendment.

Amendment 8 withdrawn.

Amendments 9 to 11 not moved.

My Lords, I cannot call Amendment 12 as Amendment 11 was not moved.

Committee adjourned at 7.32 pm.