Session 2010-11
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Evidence heard in Public

Questions 1 - 131



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Oral Evidence

Taken before the Select Committee on the Armed Forces Bill

on Thursday 3 February 2011

Members present:

Mr James Arbuthnot (Chair)

Alex Cunningham

Thomas Docherty

Gemma Doyle

Mr Tobias Ellwood

Mr Mark Francois

Mr Kevan Jones

Mark Lancaster

Jack Lopresti

Christopher Pincher

Mr Andrew Robathan

Bob Russell

David Wright

Examination of Witnesses

Witnesses: Mr Gavin Barlow, Director Service Personnel Policy, Brigadier Mike Griffiths, Director Personal Services (Army), Commodore Andrew Jameson, Director of Naval Legal Services (Navy), Mr Gary Lewitt, Head Service Personnel Policy, Service Conditions and Welfare, Mr Humphrey Morrison, Head of Legislation, Central Legal Service, and Air Commodore Ross Paterson, Assistant Chief of Staff Services Personnel Policy (RAF), Ministry of Defence, gave evidence.

Q1 Chair: Gentlemen, thank you very much for coming to give evidence to this Select Committee on the Armed Forces Bill, and thank you for having given us an informal briefing on Tuesday. Despite that informal briefing, I think for the record it would be most helpful if you would be kind enough to introduce yourselves.

Mr Barlow: My name is Gavin Barlow. I am the director of Service Personnel policy at the Ministry of Defence.

Mr Lewitt: My name is Gary Lewitt. I have responsibility for the formulation of policy for conduct, discipline and welfare areas for Service Personnel.

Mr Morrison: Humphrey Morrison. I am head of legislation at the MoD and head, therefore, of the legal team for the Bill.

Commodore Jameson: Good morning, Chairman. Commodore Andrew Jameson. I am the director of naval legal services.

Brigadier Griffiths: Brigadier Mike Griffiths, Director of Personnel Services for the Army.

Air Commodore Paterson: Chair, good morning. Air Commodore Ross Paterson, personnel policy for the RAF.

Q2 Chair: Thank you very much. There are two parts to the evidence session this morning. The first part relates to the Bill team overall. The second part, with which there will be some overlap, will deal with issues about the Military Covenant arising under clause 2 of the Bill. There will be some overlap in the questions we ask, but we would like, during the second part of the session, to concentrate mostly on the Military Covenant. I wonder whether, in the first part of this morning-which should run until about 11.30 am-you could give brief answers on the Military Covenant, and keep it tight so that we can expand on it later.

Clause 1 deals with the renewal of the primary legislation, which happens every five years. Does the fact that there is a five-year gap mean that it is harder to deal promptly and effectively with any practical and legal problems that might arise during the course of the five years?

Mr Barlow: Chair, thank you for that. First of all, it is important to make the point that, for us, the five-year period is more of an assistance than a hindrance. It effectively forms a guaranteed place in the timetable for the MoD to deal primarily with matters affecting the Service justice system, but also with other matters that we wish to include in primary legislation. Without that firm place in the timetable, we might find it more difficult to get a place at the right time. It also provides a basis for planning forward how we can deal with these legislative matters on a reasonably secure basis. It is really more of a help than a hindrance from our point of view. In practice, if we have to bring legislation forward in between times, and there is a sufficient case for it, as there would be for any other piece of Government business, then we have been able to do so, including in rare instances when we have used legislation brought forward by other Government Departments. Humphrey, do you want to give any examples of that?

Mr Morrison: If that would be helpful. We have had a number of other Acts from the 1990s onwards. In addition to the five-yearly Armed Forces Acts, we have had the Reserve Forces Act 1996, another Act in 2000 and the Armed Forces (Pensions and Compensation) Act 2004. So, where there is a need for primary legislation, we apply for the time. The Armed Forces Act 2006 was certainly a huge exercise, but at the same time it was a practical exercise, rather than a political one. We might have found it very difficult to plan and carry out such an exercise without having the opportunity of a guaranteed five-year slot to relate it to. We also have, in section 323 of the Act, a power that enables us to keep in touch with all new criminal justice enactments. We have also included specific provision for the Armed Forces in legislation from other Government Departments; for example, in the Bribery Act 2010, the Corporate Manslaughter and Corporate Homicide Act 2007, the Civil Partnership Act 2004 and so on. We are constantly in touch with other Government Departments so that where they are making changes we will, if we can, put in the provisions that we need, if they are different for the Armed Forces. Sometimes, particularly with the rapid pace of legislation and the changes that may take place during the passage of a Bill through Parliament, we cannot immediately decide what we want, but in those cases what we look for is a specific power, if necessary, to catch up with a particular area included in that Act.

Chair: Right. Thank you.

Q3 Mr Jones: Can I ask about clause 2? I am trying to understand how the areas in the annual report were decided on, including the final one, which mentions any other field that the Secretary of State may be determined to include. What was the process in moving from the Hew Strachan report, which set out certain things that clearly are not in the Bill, to what we have before us now, which says that we will have an annual report that includes certain areas? Can you talk us through that policy process?

Mr Barlow: The Bill mentions three areas. We determined that those were the most appropriate to include in the Bill on the basis that, in our judgment, they were likely to represent matters of interest every year and that it was a reasonable assumption that we would always wish to report on those.

Q4 Mr Jones: Some of them are quite abstract, aren’t they? There is no legal requirement on any local authority, for example, to carry out certain things. These things are quite abstract. How did the Hew Strachan morph into this? What process took place?

Mr Barlow: I don’t think we saw the Strachan report, which was looking at specific measures that we needed to take to pursue the Government’s objective of rebuilding the Covenant, as a direct influence on the policy process for developing the legislation. The two have been conducted in parallel, rather than in sequence.

Q5 Mr Jones: So the Strachan report was not involved at all in what we have now on the Covenant?

Mr Barlow: It flowed from a similar policy requirement, which was the Government’s desire to establish a firmer basis for the Covenant and to pursue that in a number of ways.

Q6 Mark Lancaster: To follow on from Kevan, what, apart from health care, housing and education, was considered as potentially being one of the three reporting lines? Why, ultimately, were they dismissed?

Mr Barlow: We have considered a lot of possible options, including wide definitions of welfare. Some commentators would have wanted us to go into broad interpretations, which would have brought in equipment and almost every aspect of defence policy. In the end, we felt that the group of policy areas that we put on the table in the Bill was representative of what the proper focus of work on the Covenant would include on a regular basis. We have then included the ability for Ministers to draw in other areas as required, including areas that may be required by the External Reference Group and other stakeholders. We are trying to create neither something that will be too focused and too limiting on the one hand nor coverage that will simply be unrealistic and too broad to be of use.

Q7 Mark Lancaster: I accept that a balance has to be struck, but could you-very briefly because of the time-put a bit of meat on what you consider to be covered in the three areas, because they are not clearly defined in the Bill?

Mr Barlow: That itself will vary over time. Again, we’re trying not to be too constraining. We had a discussion during the informal session about what education, for example, might cover. Clearly, our initial focus would be on the education of Service children, whether in schools in the UK or in schools overseas, but we certainly would not be looking to exclude reporting, where it was necessary, on the education of veterans, ex-Service Personnel-the Government have made certain commitments on that-the children of widows or injured personnel. We can bring those definitions to bear on the Covenant problem as it presents itself through the feedback we get from stakeholders in the External Reference Group and elsewhere, and what Ministers want to cover.

Q8 Mark Lancaster: Finally, given that the broad thrust of the Bill is trying to enshrine that and that there are these three categories, do you not feel that having the catch-all category of "as the Secretary of State deems fit" potentially gives a little too much wriggle room for the Secretary of State if, for example, there is a conflict when an external group wants to see something being reported and there is no obligation to report it?

Mr Barlow: Well, no. The way in which we see the report working can operate effectively only if we are properly and honestly representing the views of stakeholders in so far as we can. It’s not going to be in any Government’s interest to produce a report on the Covenant that clearly ignores matters of significant concern to, say, the RBL, SSAFA, the War Widows Association or the Families Federations, all of which have many mechanisms for making their voices heard but for which we have a specific mechanism in place in the External Reference Group. We’ve had discussions about this in the External Reference Group, and I think that it’s fair to say that some members of the external bodies shared the sorts of concerns that you’ve expressed-that there would be a lack of sufficient ability to influence the report. But I think we’ve been able to reassure them that in practice that’s simply not going to be the case and no Government would want to put themselves in a position where they had simply taken something off the agenda. It wouldn’t be possible so to do.

Q9 Mr Jones: Can you clarify this? You’re saying the Strachan report was one line of work and then you add this. Can you explain what the process was, for example, post May and the change of Government? What actually happened? Was this you trying to interpret what had been said by the Conservatives or the coalition in opposition? Who actually initiated this piece of work and said, "Right. Health care etc. should be in here"? What was the process?

Mr Barlow: In general terms, civil servants are here to do what the Government of the day want. We operate only under ministerial direction, and that’s exactly what happened in this case. The Strachan report-the Strachan Task Force itself-was the response to a specific early request from Ministers to look at what we could do to build on the commitments that Ministers had made at the start of the coalition Government and that are framed in the coalition agreement, where there is a set of specific Covenant-related-

Q10 Mr Jones: Was any of the work that was carried out prior to May by the previous Government taken into consideration in that work? An example would be the Green Paper response.

Mr Barlow: The work of the previous Government in the form of the Command Paper and the subsequent Green Paper, which was published in 2009, I think, is a matter of record. Before the election, we published a summary of the responses that we had received in the Green Paper consultation exercise, and all of that was available to Ministers as well as to others.

Q11 Mr Jones: Sorry; that wasn’t the question. Was the work taken into consideration when you were doing this process?

Mr Barlow: Yes, we’ve taken account, as we’ve gone through, of the extensive knowledge that we’ve built up over the years through those processes of what the stakeholders in the Covenant want and how they want to bring it to bear.

Q12 Mr Jones: So Ministers took a decision to reject some of the proposals that were put forward in the Green Paper and the response.

Mr Barlow: Well, the Green Paper put forward a number of options. If you’ll recall, Mr Jones, the responses that we set out to the Green Paper made it clear that there was a wide range of views on what the appropriate responses would be. For example and perhaps not surprisingly, local authorities in general were very much opposed to central Government imposing additional statutory responsibilities on them, but a wide range of other views was expressed.

Q13 Mr Robathan: Mr Barlow, just for clarification could I ask you to be quite clear about these three fields of housing, health care and education-first, that they are the fields in which the greatest concerns of serving personnel and their families are expressed in correspondence to us and, indeed, to the chains of command; secondly, that they are not in any way exclusive, and that other matters can arise; and, thirdly, that part of the Bill’s contention was not to be too prescriptive, because in that way you get into ticking boxes rather than dealing with issues?

Mr Barlow: Yes, absolutely right. As you say, the Armed Forces community regularly raises matters under all of those headings. They represent a significant proportion of our general Covenant business, but other matters can be covered as well.

Q14 Bob Russell: Did the Bill team at any stage consider the appalling consequences of the privatisation of the housing stock and the purchase by Annington Homes in 1995, and the ongoing issues surrounding married housing?

Mr Barlow: I think that that is an assessment of the MoD’s current housing position, which I don’t think we necessarily share; I don’t think we specifically addressed that in the way in which we framed the legislation.

Q15 Bob Russell: Secondly, on education, did the Bill team take account of the recommendations made by the Defence Committee’s specific inquiry into education during the last Parliament?

Mr Lewitt: The driving principle behind the Covenant is about ensuring that Service Personnel and their families do not suffer disadvantage as a consequence of their service; and those who have made sacrifices are treated specially in return for that sacrifice. The answer to your first question is very much as Mr Barlow said.

The answer to your second question is that the issues were raised in the 2005-06 report; there is a long section towards the end of that report after the SCE discussion on educating Service children in UK maintained schools. Yes, those issues were taken into account. We have been engaged with the Department for Education on the pupil premium, as we discussed in the informal session. In the Government programme, there is a commitment to scholarships for children of those who have died on service. We are taking that work forward as well, and announcements have been made. The answer to your second question is yes.

Q16 Jack Lopresti: A simple question: should the Bill specify the absolute minimum standards that must be provided in relation to health care, housing and education? Otherwise, aren’t things too vague and unaccountable?

Mr Barlow: I think this takes us into the area where one can debate the value of targets or specific performance measures. We clearly haven’t set that approach out in the Bill. It will be a matter of choice for Ministers when reports are made whether they wish to back up approaches in particular policy areas with specific targets and commitments. There are extant departmental targets in some of the areas that are of concern, and where those are appropriate they will be referred to in the report. They could be, in future, but they won’t necessarily be.

Q17 Jack Lopresti: Will any of the rights under a new Tri-Service Covenant be enforceable?

Mr Barlow: Enforceable in law? Humphrey, do you want to say something about this?

Mr Morrison: The aim of the clause is to provide a mechanism by which we identify things that ought to be done. Where the best way of achieving that is legislation, it will have legal effect and be enforceable; that will be the approach taken on a case-by-case basis. But the clause itself does no more than provide the mechanism of identifying those matters, so that the right decision can be made as how best to deal with it; and that may not be legislation. There are many areas in which it is likely that improvements can be made without legislation.

Mr Lewitt: There are, of course, other means than legal enforceability. For example, on the Department for Education’s guidance on admissions for schools, there is an appeals process. Service Personnel use that when they find themselves, in their view, having been discriminated against. We have a success rate that tends to be above the average. What we are looking for is not necessarily always a mechanism enshrined in Statute; other mechanisms can be used.

Q18 Gemma Doyle: Given the large amount of interest there has been in previous years in respect of benefits paid to former serving personnel, for example, under the Armed Forces Compensation Scheme-there has also been a huge amount of interest in Armed Forces pensions-would you agree that pensions and benefits should be looked at again in terms of their being specified as something that the Secretary of State should include in his report to Parliament? I cannot envisage a time when that will not be an issue of great interest.

Mr Barlow: Certainly, the Armed Forces compensation scheme has been an issue of significant interest recently. That has led to a substantial body of work in itself in the form of the Boyce review of the scheme and subsequent Government commitments to deal with that. That will be followed up by changes to legislation and implementation of a revised scheme. Similarly, from time to time, pensions arrangements for the Armed Forces may need to be reviewed and almost certainly will be after the Hutton review reports. I do not think they are in the same category of continuous regular annual challenge or concern. They have been and, to some extent, still are at the moment, but that is not necessarily an enduring matter.

Q19 Gemma Doyle: What is the reason they were not included in the Bill? What is the thinking behind that? I think it has been an issue of concern over the past few years and it is an issue of concern at the moment, certainly in terms of the changes that have been made to pensions. I see that as an ongoing area of concern, even if people felt that the direction was satisfactory.

Mr Barlow: If there are specific areas of concern around pensions-clearly, the Forces Pension Society among other organisations does have issues that it wishes to raise-it may well be appropriate to reflect on some of that in the annual report. But, it is not the only outlet. Generally, we pursue our responses to policy questions on the compensation scheme and on forces pensions through the other measures. It didn’t feel to us that this was a new area that it was necessary to highlight in the report format itself.

Mr Lewitt: I think we are back with the guiding principle again. The guiding principle of the Covenant is about ensuring that there are no disadvantages as a result of the mobility that Service life requires of you. The pension scheme is already unique to the Armed Forces anyway. Comparator issues tend to be around access to housing, education, welfare services and health services. As Gavin says, the Armed Forces Pension Scheme is unique to the Armed Services and has other ways of being addressed, improved, amended or whatever. The same goes for the Compensation Scheme. It is not about no disadvantage compared with a civilian population.

Q20 Gemma Doyle: It seems strange to me that the Secretary of State would be required to report to and update the House on issues like education, for which he or she would not be directly responsible. But, on an issue like pensions and benefits, where the direct responsibility is with the Government, he or she would not be required to provide an update to the House on that matter.

Mr Barlow: There is a requirement on the Secretary of State to report on behalf of the Government as a whole. That is normal. We would simply take a different view. In a sense, precisely because the Secretary of State is not normally directly responsible for those matters, it is important to have a report every year that provides an opportunity to draw them together, and enables the Government to say what they have been doing and gives Parliament an opportunity to scrutinise that and debate it.

Q21 Gemma Doyle: How do you envisage the process of drawing up the report taking shape, and who do you think would be consulted on that?

Mr Barlow: We haven’t come to a final view on how we’re going to do that. We will do that when the legislation is passed. We’ve had some discussions in the External Reference Group about how we might take the report forward, and we’ve agreed that consultation is important. We already do that. In the past we have consulted the External Reference Group when producing reports on the Service Personnel Command Paper, and we see that continuing. We also need to draw in the devolved Administrations and discuss further with them how we are going to fairly and properly represent devolved issues. A lot of that is about being sure about the administrative process, rather than the principle, which is that we all try and consult widely. We will consult widely.

Q22 Gemma Doyle: At the moment, the main group of stakeholders you would be consulting is the External Reference Group. No one else has really been thought of.

Mr Barlow: It is largely represented through the External Reference Group, but I don’t think that would be exclusive.

Q23 Gemma Doyle: In that case, do you have any concerns about the make-up of the External Reference Group or the independence of that group?

Mr Barlow: Well, the External Reference Group itself is not independent. It is a committee-if you like-chaired by a Cabinet Office official, which includes independent members as well as representatives of the devolved Administrations and the main Departments that are involved in delivering on Covenant-related issues. The independence comes from the fact that those bodies that are independent and on the External Reference Group get to hear what is being debated by officials, and understand what is going on in terms of policy development within Government. They still have the opportunity to comment on that externally if they wish to do so, and to influence what is going on directly in the work of the Committee itself.

Q24 Gemma Doyle: A final point, Chair. Concerns have been raised with me that the majority of members of the group are in fact civil service officials. They are not actually from charities or forces organisations. Is that understanding correct?

Mr Barlow: I suppose if you were going to count numbers sat round the table, that would be true. But it is not a committee that forms policy by vote, so I don’t think that is significant. In practice, the weight of discussion in the committee fairly represents the important interests that the families federations and the charities bring to bear. They get plenty of air time.

Chair: I’m just about to call Christopher Pincher to ask more about this issue, but before I do, Commodore Jameson, Brigadier Griffiths and Air Commodore Paterson, you are not part of the Military Covenant team that will be giving evidence from 11.30 am onwards. Therefore, when Christopher Pincher has finished asking further questions, I will ask for your military view on the Covenant issues, and whether there is anything you wish to add to what has already been said about those.

Q25 Christopher Pincher: Beyond the external relations group and the devolved Assemblies, do you envisage any limitless number of formal stakeholders to the report?

Mr Barlow: Well, in a sense, the overall stakeholder community could be described as the Armed Forces community as a whole.

Q26 Christopher Pincher: But will they be formal stakeholders, with a mechanism to formalise their input?

Mr Barlow: It’s a question of how we represent their views, I think. We do that partly through the External Reference Group, partly through the chain of command and its mechanisms for managing consultation with and gaining the views of Service Personnel, and partly through more formal mechanisms such as continuous attitude surveys, in which we deal with both families and Service Personnel. If there are other major specific issues that Ministers wish to include in the report, that may draw in other bodies as well.

Q27 Christopher Pincher: One last question, Chair. In the production of the report, do you envisage that those formal stakeholders will simply provide written evidence, which the Secretary of State will take on board, or will there be a more formalised report committee?

Mr Barlow: I would expect the final stages of drafting the report to involve the External Reference Group. I wouldn’t envisage wider public consultation on the development of the report itself, but that will be a matter for Ministers in the end.

Q28 Chair: Right. Before we end the questions on the Military Covenant, Commodore Jameson, is there anything about it you would like to add from a naval or military point of view?

Commodore Jameson: Thank you, Chair. Or an Armed Forces perspective. I think my service’s understanding of the Covenant is that not only does it cover all the issues that your questions have hinted at-the relationship with other Government Departments and so on-but it is also concerned with the way that the senior leadership of the forces interact with their people as well, in terms of ensuring that internal matters such as promotion prospects and fair treatment are equally respected and so on. Our perspective is that the Covenant is an extremely broad, intangible thing and covers a huge range of rights and responsibilities that are not always capable of being reduced to language, but that, instinctively, we feel we understand.

Q29 Chair: Thank you. Brigadier Griffiths?

Brigadier Griffiths: The Army is very comfortable with the aspect of a Covenant rather than a contract. After all, we have had the Military Covenant for about 20 years now, so we are comfortable with the concept, rather than it being a laid-down legal contract. We also feel we have a very clear mandate to report to the centre, as we would describe it-the Ministry of Defence-the concerns of the Army. We do that through our various methods of providing that information, and CGS represents those on our behalf. That will be part of the process of putting together the annual report.

Again, we’re comfortable with the annual report, and we will do all we can to influence what is in there, and, if necessary, outwith the three measures that have been talked about today. We feel there is a process to allow us to do that. Underlying the Covenant is a programme of measures, which is routine work that, again, we feel is important. It’s the work the Ministry of Defence does normally to improve the Covenant. I think that will be discussed later. I think that that together allows us to be very comfortable with the concept of the annual report.

Q30 Chair: Thank you. Air Commodore Paterson.

Air Commodore Paterson: Chair, thank you. The joy of going last is that everybody steals your lines, of course. I’d echo everything that’s been said, but I want to reinforce the point I made on Tuesday on the onus we place on the chain of command to feed that up. It is not as easy to track them down as it might seem sometimes, because of the volume of these issues. Some of them, such as housing, accommodation, child care, education and so on, will be standing, but we see that as a key effort by our chain of command. As Mike has said, we put every effort into pushing them up to ensure that they are given every visibility.

Q31 Alex Cunningham: I have a specific question for the Armed Services people on the minimum standards for health care, housing and education. There seems to be some fear about laying down standards across those three areas. Shouldn’t there be a minimum standard for our people?

Commodore Jameson: I entirely understand the question. The concern is that, by imposing minimum standards in some identifiable areas, there is an implication that no minimum standard applies to the areas not so covered. For the reasons I gave earlier, which were about the broad interpretation of what this is concerned with, that would be unwelcome.

Q32 Mr Jones: The Bill is being spun, certainly by the Prime Minister, as putting the Covenant on a legal footing, which is exactly what it is not doing. Like many things that the Government do, when you open the tin there is very little in it. On the minimum standards, don’t you think-I know this was the view of the civil servants when I was in the Ministry-that they will do as little as possible, so that a report may be produced that, frankly, will just gather dust on people’s shelves? There won’t be any way of improving lives or holding to account other Departments, as well as parts of the MoD, when they are not providing the Services that we should expect for our Servicemen and Servicewomen, for their families and for veterans.

Mr Barlow: If the production of a report was all that was happening, it is possible that you would have a point, Mr Jones, but that doesn’t encompass the Government’s commitment under the work set in hand on the Covenant.

Q33 Mr Jones: But you’ve got what you wanted.

Mr Barlow: I won’t quote from "Yes, Minister", as Mr Lewitt did in the informal sessions, because I am not such an avid watcher.

We have a significant programme of work already under way on the Covenant in response to the coalition programme. The Government are going to bring forward a response to the Strachan report in the spring, which will set out how they wish to take forward responses to all the Strachan recommendations, of which there is a significant number, and how they wish to do that alongside other work to meet the coalition commitments and to take forward the commitments made by the previous Government under the Command Paper that hadn’t yet been delivered.

Q34 Mr Jones: Why weren’t the Strachan recommendations implemented in the Bill? Isn’t this a bit of a cack-handed way of doing things? You’re taking certain things and putting them in the Bill, and somehow in a few months’ time you’re going to come back with something else to implement some of the things that have not been included in the Bill. That comes back to my point, and I would be interested to hear your response, because I already know the answer: what was the policy process by which you arrived at was going into the Bill?

Chair: I suggest that we take that in the second session, which is specifically dealing with the Military Covenant, because we need to move on to other issues. Independence and powers of Service police-clauses 3 and 5-is the next issue that we want to deal with.

Q35 Mr Ellwood: Clause 3 talks about the provost marshal’s duty in relation to the independence of investigations. The clause introduces that all investigations carried out are free from improper interference. Why do you feel it necessary to introduce that? What has happened in the past number of years that has meant that you need it? Has there been any improper interference in investigations, and what would be classified as improper interference?

Mr Barlow: We would see this as appropriate strengthening of the current provisions for independence. Humphrey, can you say a bit more?

Mr Morrison: I think that the main fact in the background to this is that everyone recognises that the effective and independent nature of Service police investigations is under far greater scrutiny than ever before, and indeed, it is under scrutiny in the courts at the moment. This is partly because of the development of human rights, but it’s also because of broader expectations, and because of the increased recognition of the problems of policing in an operational environment.

Experience has taught the Armed Forces and the centre-the MoD itself-that where fighting is going on particularly close to a civilian population, all sorts of problems can arise. When you are policing in a chaotic environment, all sorts of problems can arise. Allegations can be made about the conduct of forces, and there is this growing need to ensure that we can point to an extremely robust and independent system, but which still necessarily depends on the investigations being conducted by members of the Armed Forces. So, despite the fact that the courts, just before Christmas, delivered a judgment in one of the main cases, saying that the provisions we already have in place are sufficient to give the necessary degree of independence for investigating allegations against the Armed Forces abroad, we thought that both highlighting this and, as Mr Barlow has said, giving an extra buttress or strengthening to it is a good thing. It will absolutely flag up the particular authority of the Provost Marshalsin maintaining their independence.

Q36 Mr Ellwood: Thanks for that reply, but I’m still trying to understand what an example of improper interference might be.

Mr Morrison: Oh yes. In broad terms, there are two types. One would be plain-malicious, if you like-wrongdoing: obstructing a provost officer or something that would amount to the offence of perverting the course of justice. Those offences are already covered by Armed Forces legislation. One type of extreme interference could be of that sort. But there can be other forms of interference, and we want to make it clear that the provost marshal has a duty to resist them. They are the well-meaning attempts that might be made by someone in the chain of command, particularly when they’re under pressure for operational or other reasons, to try to tell the Service police how to carry out an investigation-what to do and when. I think that it is that sort of situation that is much more likely to arise. We’ve had the offences of obstructing provost officers and perverting the course of justice in place for many years in Armed Forces legislation.

Q37 Mr Ellwood: But that, if I may say so, is the point. If that’s been in place, can you cite an example whereby, had this clause been in existence beforehand, it would have helped the provost marshal?

Mr Morrison: I think that Provost Marshals certainly support this on the basis that, particularly in relation to what I would call the second head, this will help with the difficulty that the main chain of command sometimes has in reconciling the Service police needs with its own. I hope that they will support that when you see them.

Q38 Bob Russell: Can I ask for clarification? What is the definition of "Service police"? Does it include the Ministry of Defence police?

Mr Morrison: No, it doesn’t include the Ministry of Defence police. The Service police forces are those forces that are part of the Armed Forces. The RAF, the Royal Navy and the Army each have a force of Service police who are members of the Armed Forces. The Ministry of Defence police is a civilian police force.

Q39 Bob Russell: Thank you. Although it has strong connections with the military installations?

Mr Morrison: Yes, its function under Statute-the Ministry of Defence Police Act 1987-is related to defence, and it forms part of the Ministry of Defence, but its members are ordinary civilian police officers with constabulary powers.

Q40 Bob Russell: I wonder if I could ask a supplementary question. At any stage, has the Bill team had any briefings relating to the future of the Ministry of Defence police?

Mr Lewitt: We have not been asked to consider there being either no Ministry of Defence police or a different sized Ministry of Defence police. The provision in the Bill relates to one specific issue, and of course the Bill is principally about the Armed Forces and the three Service police forces.

Q41 Bob Russell: So no communications relating to the future of the Ministry of Defence police have been brought to the attention of the Bill team?

Mr Lewitt: We’ve not been given any specific direction to take any view.

Mr Morrison: May I add one thing that might help? What we are certainly being asked to do, which may give you some indication of an answer to your question, is include a provision in the Bill. There is one about the Ministry of Defence police, which is further developing its systems for dealing with inadequate conduct. That has been the discussion about the Ministry of Defence police in relation to the Bill.

Mr Lewitt: I would not expect, as the owner of the Bill team, to have been consulted on whether there should or should not be a Ministry of Defence police. That is a broader question for security policy leads, and for those who count the numbers and work out such things as the force structure and the number of establishments.

Bob Russell: Thank you. I just wanted to flag that point up, Chairman.

Q42 Mark Lancaster: There seems to be some ambiguity in the Bill as to whether Her Majesty’s inspectorate of constabulary would be free to commission its own report on its findings, at its own instigation, or whether that could be done only at the request of the Secretary of State.

Mr Morrison: HMIC, under the clause, will have the power to decide how many inspections it undertakes, when it undertakes them and what aspects of investigations it looks at. That is all specifically provided for in the Bill. The Secretary of State can ask HMIC to do more, and to look specifically at extra things or at things that it is not proposing to cover in the report.

Mr Lewitt: That, Mr Lancaster, is because previously the position with the inspectorate of constabulary and a number of the other inspectorates has been that we have asked them to look at various parts of the Service justice system. This creates a statutory duty-Humphrey will correct me when I go off-pitch-on HMIC to inspect the Service police. It is already doing so and it has inspected the RMP and the SIB-I have lost the plot; twice now, Brigadier Mike? It has recently inspected the Royal Navy police under the current regime, which is a consensual one between the Department and the inspectorate.

Chair: Anything else that anybody wants to ask about the policing issue, or that anybody wants to answer, unasked, about the policing issue? Okay, moving on to drug testing schemes, I call Thomas Docherty.

Q43 Thomas Docherty: Under clause 11, the issue about the power to test a person who is incapable of providing consent appears to be focused, in proposed new section 93G, on the word "accident". I don’t know whether this is for the air commodore or for the MoD itself, but hypothetically it would be possible for a pilot of an aircraft to appear to be intoxicated under the influence of drugs or alcohol, and perhaps be incapable of giving consent, but to bring their aircraft down without causing an accident. So we wonder whether it would perhaps be better to replace "accident" with "a safety critical incident".

Mr Morrison: The word "accident" is exactly the same as appears in the provisions that this legislation copies almost word for word, the Road Traffic Act 1988. It also applies in the Railways and Transport Safety Act 2003, which we have looked at in particular, because the 2003 Act covers aviation matters and navigational matters. It hasn’t caused any problems of the sort you mention, so far as we are aware, probably because this is a limited provision. In practice, it has not proved the case under those Acts that people are so intoxicated that, legally, they are simply incapable of giving their consent.

This is really about looking at people whose mental or physical state is of such an extreme kind that they cannot consent at all-they are unable to communicate and so on. Theoretically, it is a point that could be taken on the wording, but we were informed by the relevant Departments that those other pieces of legislation haven’t caused a problem over the past 20-odd years, so we have adopted their language.

Air Commodore Paterson: Chair, if I could just add to that, I am certainly not in a position to talk about any of the legal points, but a huge benefit is coming in for us with the new Bill. Under the Railways and Transport Safety Act and the old Bill, we have not been able to do any compulsory testing before an incident or an accident happens. The key benefit that is coming in now is the ability to do just that. God forbid we find any such pilots, or anyone in air traffic or the engineers, but now if there is a justifiable reason to test, we will be able to do just that, to prevent an incident from happening.

Q44 Thomas Docherty: On the issue of tariffs in clause 10(5), the maximum term of imprisonment is two years, but it is six months under the Road Traffic Act. Is there a particular reason why there is such a discrepancy?

Mr Morrison: We looked quite carefully at functions and decided that the right comparators were the punishments available for navigation and aviation offences in the Railways and Transport Safety Act, which is two years in both the main offences sections. We have adopted the penalty from that. It also happens to fit in with our own existing two-year maximum penalty for drunkenness in the Armed Forces, so in the area that we are primarily looking at-safety-critical, difficult tasks done by pilots of planes and so on-we are following exactly the provisions of the civilian legislation.

Q45 Mr Jones: Has there ever been a challenge because of the difference between sentences? If you committed the same offence in civilian life, you would get a maximum of only six months. Are they watertight?

Chair: I’m not sure that that is what you were saying, Mr Morrison.

Mr Morrison: I’m saying that the two-year penalty that we are imposing is the same as the two-year maximum under the Railways and Transport Safety Act 2003-there is no difference. There are different penalties under road traffic legislation.

Chair: It is road traffic as opposed to aviation, which is the difference.

Q46 Mr Jones: So what is the equivalent piece of civilian legislation?

Mr Morrison: The Railways and Transport Safety Act 2003.

Q47 Chair: The BMA has raised two issues with us. The first is the question whether a GP involved in the medical care of a patient should be the person who is asked to take a drug or alcohol sample. It asks whether a forensic physician could be asked to do that instead. Is that practical or not?

Mr Barlow: There will be circumstances, particularly on operations, where it will not be practical, but that is a long-standing situation for the military medical services. May I suggest, Chair, that you get more direct evidence on that from Air Commodore Wilcock, who will be joining us for the next session on the Covenants? He can give you a proper medical view on how that is dealt with.

Q48 Thomas Docherty: In terms of sample taking, I suspect that we now know the answer, but proposed new sections 93E and 93G specify the quantity of blood to be taken. I understand that the Road Traffic Act does not do that. Proposed new section 93F on urine specimens specifies, for example, that the urine sample must be taken within an hour of the previous breath test. Again, that is not in the Road Traffic Act. Will you confirm why there are those rather discreet discrepancies?

Mr Morrison: I think I would prefer to come back on those details. I cannot remember whether we decided to look into that further in subordinate legislation or whether there were practical issues about timing, which meant that it was better to take them out. I am happy to put in a note on that.

Chair: Could you do that?

Mr Morrison: Yes, happy to.

Q49 Chair: Under clauses 13 and 19, Commanding Officers get increased discretion to reduce the rank of a person who receives a sentence of imprisonment or when imposing an administrative penalty. Is there any danger of inconsistency in that, or will guidance be issued to ensure consistency?

Mr Barlow: We think that there is consistency, but certainly, further guidance will be issued in "Manual of Service Law" and other administrative instructions.

Q50 Chair: There will be guidance issued?

Mr Barlow: There will be guidance. Perhaps I might ask Commodore Jameson to add some more detail.

Commodore Jameson: In relation to the reduction in rank as a punishment, currently, when a warrant officer or NCO is sentenced by his commanding officer to military detention, he is automatically reduced in rank or rate. Interestingly, if he is sentenced by a court martial, there is a discretion, if sentencing him to detention, whether also to reduce him in rank or rate. The aim of the clause is to give the commanding officer the same discretion that the court martial has. In other words, the CO can decide, "Yes, I will send him to detention and I will reduce him in rank," or, "I will send him to detention, but he will retain his rank when he comes out." In most cases, the CO will conclude that if something is so serious that people are going to detention, they should be reduced in rank, but there will now be flexibility under this measure for the CO to decide otherwise.

Q51 Chair: Thank you. There is also a potential discrepancy arising from clause 15, relating to the maximum period of detention for certain offences, depending on whether an offender is imprisoned or subject to Service detention. If imprisoned, the maximum period is 51 weeks; for Service detention, the maximum is two years. Does that create a risk of inconsistency?

Mr Morrison: We do not consider that to be an inconsistency or to create a discrepancy, because it is important to bear it in mind that detention is not imprisonment. When we looked at this in 2006, the decision was made to set it at the same level, but, on further thought, it was recognised that in the context of this sort of offence, there was actually no reason to take away the power to rule up to two years of detention, which is available for every other offence under the Act. So, for this one offence-the failure to take a random drugs test-all we are doing is giving the same flexibility in applying the sentence of detention as would be available to the court martial in relation to any other military offence.

The root of the answer is that there was a mistake, almost, in making that exact equation between detention, which might go on for longer but with the aim of retraining and bringing the person back in, and imprisonment, which is a fundamentally different notion.

Chair: That is a very interesting and helpful answer.

The last bit under this first part of the evidence session is on Service complaints procedures.

Q52 Mr Jones: This seems like déjà vu, because when we considered the previous Bill we had long discussions on independent members for Service complaints.

Under clause 20, there does not seem to be any requirement for independent members to be appointed. Under the previous Bill, on certain occasions we allowed for independent members on Service Complaints Panels. Are there any proposals under clause 20(7) for the Secretary of State to bring forward regulations to require independent members to be appointed in relation to certain types of offence?

Mr Lewitt: Mr Jones, you’re absolutely correct that the Armed Forces Act 2006 allowed for Service Complaints Panels that had an independent member on them. We’ve already had a large number of Service Complaints Panels meeting in all three Services. As the owner of Ministry of Defence policy formulation in this area, I have taken formal feedback from independent members.

Q53 Mr Jones: How many panels have you actually sat on?

Mr Lewitt: We have four independent members, and they’ve done 30 or 40 panels altogether now.

Q54 Mr Jones: Out of how many panels?

Mr Lewitt: I’d have to give you a note on how many times a board, rather than a panel, has met. However, the use of panels is increasing. The Air Force and the Navy are leading at the moment; the Army is catching up quickly, however. That is simply a question of the Army having had a larger number of cases.

Q55 Mr Jones: They were against it last time.

Mr Lewitt: In terms of what is happening this time, we have recognised, largely as a result of the European Court of Human Rights case concerning ex-sergeant Crompton, which we won, that there might be circumstances-they are very small, because the Court held that the Service Complaints process did comply with Article 6 of the Convention-where the special bond of trust and loyalty between those in the chain of command and Service Personnel might not be engaged and where the issue was around a finding of fact. In those circumstances, the Court said to us, "It would be better if you were able to have a panel all three members of which were independents." This provision allows for that.

Q56 Mr Jones: Does this provision still give the Defence Council the responsibility for deciding those cases that need independent members?

Mr Lewitt: My legal adviser would advise me in those circumstances anyway.

Mr Morrison: The provision has two parts. First, there is provision for the Defence Council to decide of its own volition to have an independent panel-to decide whether there should be a panel and how it should be composed. There is also a power under which the Secretary of State can lay down regulations as to when there must be a panel and when it must have a particular composition, including all independent members. We’ve done it like that because the judgment of the European Court in Crompton was in very general terms. As Mr Lewitt said, it indicated that only in certain circumstances would the existing system-the provisions we already have-not meet the requirements of independence. The Court basically said-indeed, on the facts of the case, it held-that the system worked fine in terms of independence.

Q57 Mr Jones: Would it be on a case-by-case basis or would you say, for example, that certain classes of subject would be discussed?

Mr Morrison: What we’re planning to do is to consider cases as they develop to work out, to be honest, what the Court meant in relation to such cases. It provided quite a complicated set of tests; they are set out in general terms, but when you read them, as Mr Lewitt indicated, they were quite complicated. You first had to establish whether the case engaged a right for the purpose of Article 6, which is, itself, quite a technical question. Secondly, there was the question of whether the issue does or does not go to what is called the fundamental relationship of trust and confidence. If it does, the existing system again works. Thirdly, even if the issue does not go to that relationship and therefore potentially needs an independent panel, the Court said that will only be the case if the key issue is one of fact-in other words, it is one where the system is having to choose between the evidence of two or more, probably, members of the Armed Forces. It said that in the circumstances where all those requirements are met you will need full independence-an independent panel-and not the exact system we have at the moment. It sounds moderately simple to say that, but applying it to the complicated facts that arise in these cases is quite difficult. We will have to work on a case-by-case basis. We are allowing the Defence Council to decide on a purely case-by-case basis or to lay down more general rules. When the law really is clearer, those will then be subject to regulations-statutory regulations put before Parliament by the Secretary of State-which will lay down the circumstances in principle. At the moment, we have to admit that the case is not clear enough for us to give hard and fast answers.

Chair: That is all for the first part of the evidence session. To those who are leaving us, thank you very much indeed. Could we now have a changeover as orderly and quickly as possible?

Examination of Witnesses

Witnesses: Mr Gavin Barlow, Director Service Personnel Policy, Mr Jeff Garrett, Head Service Personnel Policy, Pensions Compensation and Veterans, Mr Gary Lewitt, Head Service Personnel Policy, Service Conditions and Welfare, Mr Simon Lowe, Head Service Personnel Policy, Service Conditions and Welfare, Air Commodore Charlie Wilcock, Head of Medical Strategy and Policy for Defence Medical Services, and Commodore Jonathan Woodcock, Head Service Personnel Policy, Pay and Allowances, Ministry of Defence, gave evidence.

Q58 Chair: Will the newcomers be kind enough to introduce themselves?

Mr Lowe: I am Simon Lowe; I work in Mr Barlow’s Service Personnel Policy team and head the work on the Armed Forces Covenant.

Mr Garrett: I am Jeff Garrett, and I am head of Pensions, Compensation and Veterans’ Policy.

Air Commodore Wilcock: I’m Air Commodore Charlie Wilcock. I work for the Surgeon General as head of Medical Strategy and Policy, so I am not specifically a part of the Armed Forces Bill team.

Q59 Chair: Thank you. The second part of the evidence session relates to something we covered in part this morning about the Covenant. How do the provisions in the Bill fit into the Government’s wider plans for rebuilding the Covenant? What will the next steps be? Who would like to begin?

Mr Barlow: I will start and perhaps ask Mr Lowe to fill in more details. I think the key point here is that the Bill provides the basic mechanism through which the Government are held to account for their actions on implementing the Armed Forces Covenant. We already have procedures in place for the External Reference Group to produce annual reports, and clause 2 strengthens those procedures by enshrining a requirement in law. Assuming the legislation is passed, as I said in the previous session, we will work through with other stakeholders, particularly those on the ERG, on the detail of how the report should be drawn together. In due course, we will start work on the first report under statutory provisions, which would come some time next year.

The Strachan report fits into that as well. I mentioned in previous session that the Government intend to respond to that report in the spring. That is the point at which we will be able to set out further details of the Covenant itself, the principles the Government believe should apply to it and a complete description of the programme of measures the Government intend to implement to take forward Covenant work across the board.

Q60 Chair: Does "responding in the spring" mean before or after Easter?

Mr Barlow: We have not reached a final decision on when that would be.

Q61 Mr Jones: When the Strachan report was set up, it was quite limited. When I read it, I was quite disappointed with what came forward. I don’t think it really looked at what was already in place. But one of the tasks, as it says in the introduction, was "to develop a series of innovative, low-cost policy ideas to help rebuild the Military Covenant." It is quite clear, as I said earlier, that what is being spun about this Bill-that it is actually enshrining the Military Covenant in law-is not the case. On day one of the coalition Government coming to office-or the new Minister-what was the process in terms of deciding what the starting point was for the new policy? What was actually included in or extracted from the report, and what was not?

Mr Barlow: There are two different steps there. At the time, when the Government came to power, they set out in the coalition agreement what their intentions were regarding the Covenant, which was essentially a commitment to deliver on a series of specific policy initiatives. A requirement for the Strachan Task Force came later as a result of further ministerial direction on how Ministers wished to take forward other measures and seek views on what the other measures should be.

Mr Lowe: The reference to low-cost measures was simply the recognition that practical steps to help restore the Covenant would not necessarily have to be about money, and that there were things that could be done in terms of policy changes or the involvement of Service providers or local authorities. It was about how they approached the problem and not necessarily about the resources they had. So Professor Strachan, who had the background of membership of the External Reference Group and was familiar with these kinds of issues, was invited to think out of the box, if you like.

Q62 Mr Jones: He did not go very far out of the box.

Mr Lowe: He was invited to look in a different perspective from a policy official and to give his perception of the kind of steps that could be taken to take matters forward on the Covenant without necessarily resorting to large resource bills.

Q63 Mr Jones: I accept that there are certain things you can do that do not necessarily need money. It is about getting people talking, which is part of the Command Paper. It is a way of getting people working more effectively. But it is clear that if you are going to make the Covenant legally enforceable in certain ways-it was in the Green Paper about commitments to local government, for example, or standards that you had to put in-that would involve a cost, so cost was clearly an issue in terms of what went into the Bill and what did not.

Mr Barlow: Resources must always be an issue for Government. The approach that is being taken on the Covenant quite reasonably recognises that, but it would be wrong to suggest that the Government are not putting resources into this policy area. They are continuing, for example, to resource the change to the Armed Forces Compensation Scheme, which had been brought in. The doubling of the operational allowance was another significant measure with resources attached to it, so there is a combination of things going on.

Q64 Mr Jones: The Strachan report was actually commissioned by the Prime Minister. In terms of deciding what went into the Covenant, what was the policy process? How involved was No. 10 in terms of recommending what went in? Or was it a purely MoD thing that was driven forward?

Mr Barlow: In terms of framing the legislation?

Q65 Mr Jones: Framing the legislation and what went in in terms of the Covenant and what we have before us now.

Mr Barlow: In the normal way, there was consultation across Government, managed by the Cabinet Office, in which No. 10 was involved.

Q66 Jack Lopresti: What do you consider to be the key purpose of the Armed Forces Covenant report to Parliament? Is there a fundamental issue in having an annual report, which at the moment remains vague and abstract?

Mr Barlow: Well, I’d hope that the report itself, when it comes in, won’t be vague and abstract at all, and that it will give a full account of what has been done to support the Armed Forces community and an assessment of what further needs to be done. That’s primarily the benefit that we see in bringing forward the legislation-that the Government have to look at these issues annually and be held to account accordingly. That is a further strengthening of the current position.

Q67 Gemma Doyle: From reading the Bill, particularly clause 2, the only measure that is enshrined in law is the responsibility of the Secretary of State to report to Parliament. As the Bill stands, that duty is to report on education, health care and housing only, and obviously any other matter that he or she sees fit. On the basis that those issues are devolved to the Scottish Parliament, would you agree that if you were a Scottish veteran, you should not look to the Bill for any sort of protection of your rights?

Mr Barlow: Perhaps Simon can comment further on how we intend to deal with the devolved Administrations on devolved matters, but first of all I should say that, as is the case now, the devolved Administrations will continue to be involved in the work of the External Reference Group, and they are very much part of the process.

Mr Lowe: Yes, that’s right. Clearly, in terms of the responsibilities of the devolved Administrations, the Secretary of State or the Government are not answerable to the Westminster Parliament in the way that was the case previously. But essentially, the report is about putting information into the hands of Parliament. By a process of working with the devolved Administrations in preparing the report, as we do already, we aim to give a complete picture of how the situation is across the UK. We are very conscious that from the point of view of the Service person-especially the Service person, given the mobility to which they are subject-they have a close interest in how they are served by the Administrations across the UK, wherever they happen to be posted. Therefore, we would see it as part of that overall picture, to cover matters even if they are not within the responsibilities of the Westminster Government.

Mr Morrison: May I add to that? It’s not intended to be limited to the UK. It has been drafted so as to enable these sorts of issues to be addressed in relation to the forces worldwide. I just want to make that clear in case there was any doubt that there might be some intention to limit the scrutiny, as it were, that is included in these reports to the United Kingdom. It is meant to cover members of the Armed Forces, the Service community and former members. As far as the existing members of the Armed Forces are concerned, it is not limited to the UK at all; it is looking at the problems wherever they are, be it Germany or Cyprus.

Q68 Gemma Doyle: I understand what your hopes are for what the Secretary of State will report on, but my question is quite straightforward. As the Bill stands, there is nothing in clause 2 that applies to Scots serving in the Armed Forces or Scottish veterans, in terms of legal definitions.

Mr Morrison: The point that I am making is that it applies to all members of the Armed Forces-Scottish, Irish and so on. It doesn’t matter at all. The report is intended to cover members of the Armed Forces wherever they live or operate. There is no territorial limit on this at all. We discussed that with the devolved Administrations, and they said that that doesn’t matter to them in that it doesn’t infringe on their devolved responsibilities. Devolution comes in if the report identifies, say, a problem in housing that applies in both Scotland and England, and then, should it require legislation, a decision would be made about whether it would need, for example, Scottish legislation.

One of the complications about trying to define the Covenant and Rights and Standards in the Bill is that that would have meant that we were treading on devolved areas. If we had started saying that members of the Armed Forces living in Scotland or based in Scotland must have certain rights, that would have taken us straight into the devolution problem. So we have put in place a worldwide provision for members of the Armed Forces in terms of what we look at. Whether the legislation is needed and, if so, whether it is to be Scottish or Northern Irish or Welsh or Westminster legislation are the sorts of questions that can only be addressed when we have identified the problems and decided that legislation is a way that will deal with them.

Bob Russell: Chairman, I hope that I’m not coming in too early. This is on housing and what will actually be enshrined in the Bill.

Chair: All right, come in later then.

Q69 Mr Jones: In terms of the report, what is the situation if the Secretary of State puts something in the report that either the Scottish Government or the Welsh Assembly fundamentally disagree with? Is there any appeal mechanism or way for them to change that? Having dealt with both, there is one Minister in Wales-if she’s still there-who is particularly difficult.

Chair: Mr Barlow, you do not have to answer that particular question.

Mr Barlow: Thank you. We need to work through further with the devolved Administrations exactly how we are going to handle the annual reporting process and how it is going to represent their positions fairly and constitutionally. I think it is fair to acknowledge that that remains a work in progress. So far, what we have committed to with them is that we will address that and that we will ensure that we have a proper dialogue with them about how their views can be represented and in precisely what format. So I think there is a potential or theoretical problem that we would hope not to bring into practice.

Q70 Gemma Doyle: To build on that a bit, I can foresee a problem here not only in terms of Scottish public services, but with what happens in England. I am interested in what process you think will develop if the Secretary of State comes to Parliament and says, "Our Armed Forces and veterans are being disadvantaged in the area of housing, and local authorities"-I understand that, in some cases, it will be local authorities that deal with this-"are not meeting our responsibilities on housing to our Armed Forces, to their families and to veterans." The local authority then says, "But we’ve had our budget slashed." Where is the redress then? How do you resolve that problem? Where does the responsibility lie?

Mr Barlow: Are you talking about redress between central Government and the devolved Administrations or between individuals and the Government that they happen to be under?

Q71 Gemma Doyle: The redress should be for the individual. If there is, however, no legal basis or requirement at all, and the Secretary of State is reporting on matters that the Government are not directly responsible for delivering-that was my comparison with pensions and benefits that I brought up earlier, and it would make a lot of sense to have the Secretary of State report on how pensions and benefits were delivered-what is the process if the local authority says, "We can’t do this. We don’t have the money."?

Mr Barlow: In part, it depends on what their specific legal obligations are.

Q72 Gemma Doyle: Which is nothing under the Bill.

Mr Barlow: No, that is not true. There won’t be legal obligations under the Bill, but there will be other legal obligations in that there are either general legal obligations that local authorities or others have to meet to any client or customer, or, in some cases, there will be specific ones that are relevant to members of the Armed Forces, which we are either pursuing through Government administrative action and commitments or through legislation itself. As at present, there will be examples of such areas.

Generally speaking, in working with the devolved Administrations on the implementation of the first Command Paper and Covenant Commitments, the devolved Administrations have been prepared to work very closely with us on matters that are properly devolved. In practice, the aspirations that have been set for England and Wales have been more than matched in the other Administrations. We would plan on the basis that that pattern will continue. What we propose is not creating a worse position by any means. Humphrey, do you want to add anything more on the legal issues?

Mr Morrison: I don’t think so, unless it would be helpful. Is there anything specific I can add? I agree entirely with what Mr Barlow says.

Mr Lewitt: Can I briefly add something? There are other ways of reaching the same end. For example, the current position on establishing a local connection is set out in guidance. When the key worker status is abolished, we are looking, with the CLG, to reach a similar position as well. Many of the rights of veterans in the health service are set out in the NHS operating framework, which is the guidance that the Department of Health gives to strategic local health authorities and PCTs. Whatever the mandate to the commissioning board is, we would want to ensure that it adequately reflected our concerns about the care of ex-Service Personnel by their local commissioning consortium, however that might work. Legislation is not always the answer to everything. Policy guidance, provided you can get points properly represented in it, is just as effective.

Q73 Mr Jones: It is, but we are going through a radical shake-up of the health service where strategic health authorities and primary care trusts will be got rid of. Consortia of GPs will have different priorities. How will you ensure that some of the things that we did in the guidance to PCTs and others for severely disabled and wounded soldiers is actually going to be carried through? Will there not be differences in different areas, depending on whether or not a GP is sympathetic or, coming back to Gemma’s point, that the budget is available in all areas? If a GP gets one of our most severely disabled veterans on their list, it will be bloody expensive to deal with.

Mr Lewitt: Just as it can be for smaller PCTs. The other month, I spent more than an hour on the Bill team for the Department of Health-I think Air Commodore Wilcock was with me-when it was discussing the restructuring of the NHS. I know through the DH/MoD commissioning partnership board that this is a key issue. If I understand the proposals correctly, there is likely to be what is called a mandate to the commissioning board. In that document, we will have an opportunity to set out precisely the same sort of concerns, direction and Government policy that the current operating framework sets out to SHAs and PCTs.

Mr Garrett: May I just add one thing? Armed Forces networks are being established in each of the 10 strategic health authority areas, which bring together the NHS, the Service charities, clinicians, veterans and the Armed Forces. Although the strategic health authorities won’t survive the change, the Armed Forces networks are definitely going to, and will bring in as well the GP consortia as and when they are established. So, mechanisms are being put in place to ensure that there can be a consistent delivery of veterans’ health services.

Q74 Chair: Getting back to the devolved Administrations point, would you expect them to see the Secretary of State’s draft report before it is finalised?

Mr Barlow: I think that we probably would.

Q75 Chair: If so, why would you stop? Would you expect the commissioning GPs to see it before it is finalised?

Mr Barlow: No, we wouldn’t. We would expect Government Departments in the devolved Administrations to be involved in the preparation of the report itself, but that does not rule out the possibility of others being involved in evidence gathering or consultation exercises as might be required.

Bob Russell: Do you want me to go on to the housing one now?

Chair: Yes.

Q76 Bob Russell: Thank you. It is an important question, Chairman, but having served on Committees in the past I know that there is nothing worse than somebody coming in on somebody else’s question too early.

Following on from some of the other points that have been made, when the Minister gives his Military Covenant report to the House, will it, for example, give specific information about the number of MoD married quarters that have been modernised in the previous 12 months to bring them up to the required standard, how many are left that require modernisation and the time frame for every MoD married quarters to be brought up to standard? Would that sort of detail be in the report?

Mr Barlow: I think that sort of detail probably would be covered, yes. Gary, do you have any further thoughts about that?

Mr Lewitt: The absolute answer to your question is, "Do I know for certain here and now? No. Is it an issue that is hugely topical?" You don’t need me to tell you that it is. You’ve got a very large base, or set of bases, in your constituency and I get poked in the chest by the heads of the Families Federations personally on the floor plate and anybody who thinks that they are not independent is welcome to come and stand in my boots when I am being poked in the chest.

I am pretty confident that information on that sort of issue could well be in the report. What is being done this year? Are we moving forwards? What is the plan? That information could well feature.

Q77 Bob Russell: So, with a bit of luck there will be a fair amount of meat on the bones of this Bill?

Mr Lewitt: Not everything in the Covenant is the problem, or issue to resolve, of someone other than the MoD. There are issues that lie within the MoD to resolve. There is no argument about that. Equally, the point of the report is to report on the actions that the whole of Government are taking. There is no benefit if the report is simply about what the MoD is doing, because then everything becomes, "The MoD’s problem is not my problem-signed local PCT, local authority, whatever Department".

Q78 Bob Russell: I hope that you agree that for Members it is important that we can track progress, or indeed lack of progress, so that the Government of the day can be held to account for any failings, perceived or otherwise.

Mr Lewitt: Yes.

Mr Lowe: May I add that my conception of this report would be that, in comparison with some others, it would probably be more people-focused, if you like? So, in the context of housing, this report would not itself be a report on management of the estate. It would not be about disposals or levels of void properties, or the like. It would focus more on the experience of families and it would include, for example, that input from the families themselves about how they perceive the process, for instance, of being allocated a house, or their experience of living in it, and the maintenance required for the houses that they lived in. So the report would look different from the other kinds of material that might be produced on the management of the estate, because it would have that focus.

Q79 Mark Lancaster: Will you run through the three reporting streams-housing, health care and education-and explain how they relate to the reserve forces?

Mr Barlow: Simon, would you like to cover that?

Mr Lowe: As I think you have mentioned at an earlier session, Mr Lancaster, some areas have less relevance to the reserve forces than other areas.

Q80 Mark Lancaster: Specifically, is there any relevance in housing to the reserve forces? I am not asking if there is less relevance, but any relevance.

Mr Lowe: I don’t see any major issue at the moment that, if I was looking and working on the report today, I would expect to include. But part of the consultation process that we would be engaging in would allow us to flag up any issues that were current on the day, so that we could. I cannot see what they would be, but I don’t rule it out.

Q81 Mark Lancaster: So no for housing. What about education?

Mr Lowe: The same, I think, is true of education, with the possible exception of certain forms of training that would be provided to members of the reserves, but I am very much speculating as to what issues might arise.

Q82 Mark Lancaster: And health care?

Mr Lowe: I think there is an issue about how we deal with the potential effects of service, in particular deployment, on the health care of members of the Reserve Forces-tracking their health after they deploy; what we do to ensure that when they return from theatre they are adequately cared for. There might be a very good case for that being included in the report.

Q83 Mark Lancaster: The point I am gently making, and it is probably clear, is that I think-and I do have an interest-that members of the reserve sometimes feel that they are only valued when they are mobilised, when they, of course, enjoy almost all the benefits of being in the Regular Forces. The report offers a tremendous opportunity for us to demonstrate to the Reserve Forces that they are valued, too. Personally, I would like to see a specific category for mentioning reserve forces, because there are some unique challenges facing them, not least the dislocation of families. Did you consider having a fourth category specifically for reserve forces, because they cut across those three categories in so many unusual ways? If you did, why did you dismiss it?

Mr Barlow: Perhaps I could just say that the Reserves are mentioned on the face of the Bill. It is clear that the scope of the report is intended to cover Reserve Forces. I think health care is a major element of that, and is where many of our current issues with reserve forces do come up in practice. Actually, I think there is rather more on the education side as well that is relevant to reserve forces. Gary.

Mr Lewitt: It is worth saying-and there is no argument, Mr Lancaster-that although they are not specifically mentioned in the clause, the intent is that we would cover them. A large number of the individual measures that have been under consideration of course do: the R and R measure; the scholarship measure for the children of those killed in action; and things such as the transition protocol, where an individual has been under DMS care and will then move across to NHS. So I can see that, within the individual areas, there are issues that are common to the reserves and to everybody else, and then, as you say, there are some specific issues where reservists attract specific concern and specific measures. From my perspective, certainly as a person who owns a chunk of the welfare policy area, my understanding is that the intent in the drafting is very clear that omission does not mean exclusion.

Q84 Mark Lancaster: I accept that. I am not for one second suggesting that there has been any intent to slight the reserve forces. I am concerned, though, that there are very specific needs of the reserves that do not fall comfortably into those three categories. At the moment, on the face of the Bill, we are relying effectively on the second category where there may be other areas that the Secretary of State decides to include. That implies that in some years they may appear and in some years they may not. Personally, I would be more comfortable, and I am sure other members of the reserve forces would be, if that were simply enshrined in the Bill along with those other three categories. In the past, there has always been the impression-we haven’t mentioned reserves at all this morning, for example-that they are sometimes forgotten, or are second-class citizens. This is an ideal opportunity for a very simple, minor change to the Bill to demonstrate to the reserve forces that, actually, they are being considered.

Mr Barlow: As I said, the definition in the Bill at the moment does say, in this section "Service People" means members of the Regular Forces and the Reserve Forces. So it is very clear that the reserve forces are covered, and have to be covered, in the report. That is certainly the intention.

Q85 Mark Lancaster: I will shut up now, Chairman; but the choosing of those three categories exclusively almost undermines what you’ve just said.

Mr Barlow: Yes, but it’s not exclusively, and that’s the point we’ve made already. They’re certainly not intended to be exclusive.

Q86 Mr Francois: Chairman, can I just follow up on that? I declare an interest as an ex-reservist, although that was back in the last century, for the avoidance of doubt. Is it a fair interpretation that there’s going to be a narrative that runs through the report, that makes clear how these particular issues will impact on the reserve forces? You said it’s not exclusive, so they’re going to be in there, but is it fair to say that that will be a theme that will be reflected in the report, even it it’s not under a firm heading of its own?

Mr Barlow: Yes. We will have to deal with matters affecting the reserve forces in the report.

Mr Morrison: I think I should make it clear that the enormous width of the Covenant, as Commodore Jameson rightly emphasised, means that not every aspect of the Covenant in respect of every group within that very wide category of regulars, reserves, former regulars, former reserves and the broader Service community-Service families and so on-will be covered in every report. The clause does not require that. The aim is to provide a mechanism by which important issues can be identified and then addressed in detail and put to Parliament, rather than to provide what would inevitably be something of a gallop through every single aspect of the Covenant as it affects all the different groups. I just want to make that clear in case what we have said might give rise to an expectation that every report will attempt to cover everything.

Q87 Mr Ellwood: On that very point, you have deliberately chosen three subjects because you didn’t want to be too prescriptive-health care, education and housing-but Mark raises an important aspect of the reserves. You are saying that you are going to select those pieces that are relevant for the 12-month period and then report back on them. For completion’s sake and for the benefit of us, who will end up debating these things-and also for the nation as well, to be aware of how the Covenant is doing-would it not make sense to have a more comprehensive report?

You are describing a document that sounds like it’s going to be pretty pithy, and I think that, guessing the mood of the Committee, we want something a little substantial that really does summarise where things actually are. So you could, in fact, without introducing more headings, certainly have the main disciplines-the Navy, Army and RAF, as well as the reserves-as titles that need to be fed in. I’d hate to think that the Secretary of State would come forward with a very short proposal or report one year simply because there was not much to report from the previous year. I think there needs to be quite a comprehensive document, and that’s what we would be looking for.

Mr Morrison: Certainly a balance needs to be struck so that you get continuity from year to year, you get an overview, and you get an identification of specific problems, and perhaps proposals for specific ways of dealing with those problems. So there are at least three functions that each report will be expected, by Parliament at least, to fulfil.

Q88 Mr Ellwood: Would it not then make sense to have a chapter, or whatever you are going to call it, on the reserves, which I think is quite important? Looking at the Bill itself, there isn’t much information about what the structure of the report will actually be, other than the three headings.

Mr Barlow: I think that we would certainly want to take account of the Committee’s views on what matters we should address in the report, but we also have to give the External Reference Group the chance to bring to the table the things that are important to it and to help guide the content. What I’d certainly say is that the idea that as we are currently planning to take this forward it could be in some way a cursory report that was limited to what little we could get away with under three headings is not the way we see it at all. It’s not the way Ministers see it and it’s certainly not the way our stakeholders see it either. If that’s some form of reassurance then I offer it.

Q89 Mr Francois: Just to follow up, one of the advantages is that the report will be annual and people can be examined on it. It is not for me to dictate the programme of the House of Commons Defence Committee, but I am pretty sure that it will end up having an evidence session on the report, which would be logical.

What thought has been given to communicating the report’s conclusions internally within the forces, because clearly it will be important for them, as well as for those looking in from the outside? For instance, have you considered having roadshows, presentations to units, or anything along those lines to communicate the conclusions internally as well as externally?

Mr Barlow: I take the point that internal communication is important. The Services have repeatedly made that point to us in work over the past couple of years on the Command Paper and, subsequently, on the Covenant. Simon, do you want to say something about how we managed that, in terms of reports that we have had so far, and what further areas of improvement there might be?

Mr Lowe: Yes, I think that when a report of this kind is published we will look to the chain of command to pass that message down to all units. We would expect some of the members of the External Reference Group, such as families federations, to be putting this on their websites and including it in their material. We expect to be invited to their conferences to present to their members-the charities, likewise.

We will also be engaged in trying to ensure that members of the Armed Forces, and families and veterans, also become aware of what this means for them. One of the lessons of the work on the Service Personnel Command Paper has been that members of the Armed Forces, understandably, are often most interested in, "What is in this for me today?" and not in some theoretical assessment of percentages or whatever. So, we will be looking, as specific things become available that Service Personnel would be interested in, to get that message across straightforwardly, simply, and widely, through leaflets and, again, through the chain of command. That will be the best way of making contact with people throughout the forces.

Chair: It is 12.17. I remind the Committee that we are meeting again this afternoon, so I want to pick up a bit of speed. We need short questions and short answers.

Q90 Jack Lopresti: A short question-I don’t know whether the answer will be short-what kind of parliamentary scrutiny do the Government envisage?

Mr Barlow: I don’t think we have reached a view on that. Simon, have you got advice in your mind about what that might involve?

Mr Lowe: No. We had obviously thought of, as Mr Francois mentioned, the possibility of the Select Committee taking an interest in the report, and there could be scope for a debate. But beyond that, no, we did not feel that it was our place to develop those ideas.

Q91 Alex Cunningham: The previous panel made it abundantly clear that they were opposed to minimum standards being enshrined in the law for education, housing and health. I would have thought that serving people and their families would find that very helpful. Do you agree that there should be minimum standards? Perhaps we could hear the view of some of those who have not already commented.

Chair: Mr Barlow, to whom would you like to allocate that question?

Mr Barlow: Obviously, they will have to represent the departmental position, just as I have. May I say one thing before I pass the question over to Simon? One of the principles that have guided us through working on this is the view that comes back from the Services, which includes the Families Federations. They do not want to be put on a pedestal and subjected to special treatment across the board. That comes back to a point that Mr Lewitt made about the fundamental being no disadvantages as a result of Service. That is one of the fundamentals that we look to, and, to some extent, picking on minimum standards for Service Personnel or the Service community themselves could, in certain circumstances, run counter to that.

Q92 Alex Cunningham: A good example is housing. If we look at the taskforce report, it acknowledges the poor condition of accommodation, but then talks about exploring ideas for long-term improvements "within the constraints of low or no cost measures." Isn’t this just a way of not spending money, and of hiding behind the fact that you don’t have a minimum standard?

Mr Barlow: No, not at all. There are a number of different issues on housing, and they are not all about the standard of Service housing, although some of them are. Indeed, the standard of Service housing has been subject to considerable investment and improvement over the years, and it continues to be so. The issues are also about access to affordable housing, and about things that we can do as a Department on our policies of moving people, and on the opportunities that we give them to own their own homes and to be more stable. Those are all issues that we need to address under the category of housing; there is not just one set of standards. That is the way in which we would want to approach this subject.

Mr Lowe: Just very quickly, I confirm that just because there are not minimum standards in the Bill, it does not mean that there are not minimum standards either in other legislation, as Mr Lewitt pointed out, or through policy areas. I believe that it is now MoD policy that a family should not have to occupy a house at one of the lowest standards for condition. That is now established as a policy that families can draw on, but it does not need legislation to create that standard. I’ll leave it there, unless Members wish to follow that up.

Q93 Gemma Doyle: This is probably a question for Mr Morrison. Is it true or false to say that the Bill enshrines the Military Covenant in law?

Mr Morrison: "Enshrined" is really a rather grand word, but the Bill is certainly the first statutory recognition of the existence of the Covenant-that’s the first element. The second, obviously, is that it provides for the first time a statutory mechanism for dealing with problems that arise under the Covenant. I think that I would probably call that "enshrining", but it is quite grand, as I say.

Q94 Gemma Doyle: So you think that the statement is true? I am just a little confused, because earlier in the week you argued that the Covenant should not be enshrined in law.

Mr Morrison: There is an issue about whether the Covenant should be defined in law or whether it should be given some sort of legal effect, which raises all sorts of very difficult questions. If I use lawyers’ terms rather than emotive terms, such as "enshrine", the question of defining is difficult, as is the question of what legal rights, if any, should be created, as we have discussed already. Whether what has been done so far would count, to a member of the public, as "enshrining", I don’t know to be honest, because I’m not really sure what "enshrining" means.

Q95 Gemma Doyle: Okay. It is just that it is used in an MoD press release on the website.

Mr Morrison: It seems to me quite a bold and positive word to describe what we are doing, which is recognising the existence of it in statute, and putting in place a mechanism to give it effect.

Q96 Gemma Doyle: Okay. I may have to pore over the transcript of that one. May I just ask one further question? Does the Bill guarantee prioritised NHS treatment for our Armed Forces?

Mr Morrison: No.

Q97 Mr Jones: What redress is there in the Bill? There is no redress whatsoever. You said that there was a statutory redress to things in the Covenant, but there is none in the Bill. To come on to my question-if you don’t mind-what is the difference between the report to Parliament every year and the External Reference Group’s annual report?

Mr Barlow: The fundamental difference is that there is a statutory obligation-

Q98 Mr Jones: Yes, but what about the actual content?

Mr Morrison: We have to go back to this notion that the purpose of the statutory requirement to put in a report to Parliament is a means to an end. It is a means of recognising and engaging with Parliament on what the problems are and recommending the right way to deal with those problems.

Q99 Mr Jones: I accept that, but we have an External Reference Group report that is produced and published annually anyway. What is the difference between that and what we are going to get here?

Mr Lewitt: On one level, the answer to your question is that we don’t know, because we haven’t produced a report yet.

Q100 Mr Jones: Can I suggest-very little?

Mr Lewitt: On another level, the point is that it will provide an opportunity that doesn’t exist at the moment for Parliament to hold Ministers, whoever they may be, to account.

Mr Jones: So, you basically-

Q101 Chair: Hold on. Mr Lowe, did you want to answer?

Mr Lowe: I suppose I would simply observe that although the last two annual reports of the External Reference Group have been published and, I’m sure, been taken into account by Members of Parliament in formulating their views, they have not been at the centre of parliamentary debate or consideration. This is an exercise in raising the profile of that material. As we’ve discussed, I hope it will do other things as well, but it puts the report very firmly into a spotlight that, to some extent, it has not yet captured.

Q102 Mr Jones: So therefore do you see the External Reference Group’s report withering on the vine, and this replacing it?

Mr Barlow: This will replace it, yes.

Q103 Mr Jones: Right. If that’s the case, then, the one thing the External Reference Group has got is independent members. What guarantees can you give the Armed Forces charities that they will have input to the new report and can have some independent oversight of what actually goes into it?

Mr Barlow: The commitment’s already been made that the External Reference Group will be fully engaged in drawing up the report. That commitment has been made to them directly. Ultimately, the guarantee that that input will be there rests in their own independence.

Q104 Mr Jones: No, but there’s nothing in this legislation. I’m not questioning the current Secretary of State’s intentions at all, but what’s to stop a future Secretary of State saying, "Well, actually, I can ignore the External Reference Group altogether."? There’s nothing in this legislation that guarantees their role in providing that report, is there?

Mr Barlow: I think that’s correct as far as the legislation’s concerned.

Mr Lewitt: I think the answer to your question, Mr Jones, is that it would be a very brave Secretary of State who tried to get away with that.

Q105 Mr Jones: Can I just say, Mr Lewitt, that that is a great civil service answer?

Mr Lewitt: There are many brave Ministers, Mr Jones.

Chair: I think we’re back to "Yes Minister", aren’t we?

Q106 Mr Jones: So what we’re seeing here, basically, is the existing report of the reference group being put on a report to Parliament. This is not a great, radical move forward, is it?

Mr Barlow: Obviously, you will make your own judgments about that, Mr Jones, but I think there’s a very significant difference between statutory and non-statutory means, and it’s not the only thing that the Government intend to take forward under the-

Q107 Mr Jones: You keep saying that; I’m intrigued by it. That’s why I asked my earlier questions. I can’t quite understand why, if other things are going to be brought in about the new Covenant, they are not in this Bill. If you’re going to bring them back later on, why and how are you going to make them legally enforceable? I don’t know, but I am intrigued to know what areas have not been excluded from this Bill and the reasons why.

Mr Barlow: As I’ve said already, the Government will be publishing their response to the Strachan report in the spring, which will set out a wide range of measures, which the Government intend to take forward under the Covenant heading, and they will also set out the Covenant itself, as the Government see it, but the Government have decided that those are not matters that need to be legislated for in this Bill, though there may be-

Chair: I still want to keep the speed going.

Mr Barlow: Sorry, Chair.

Q108 Mr Jones: So will the Covenant actually be produced as a document? Is that the idea?

Mr Barlow: There will be one, yes.

Q109 Mr Robathan: Briefly, for clarification, Mr Barlow, on how many occasions has there been a debate or other parliamentary occasion in the Chamber of the House of Commons when the External Reference Group has produced its report?

Mr Barlow: I think there haven’t been any specific debates.

Q110 Mr Robathan: Exactly. And, indeed, very little reference in the press. Is it a step forward, do we think, that the Secretary of State will-

Mr Jones: Very little reference in the press-Christ Almighty!

Chair: Andrew Robathan.

Mr Robathan: For instance, if the Secretary of State were to make a statement in person, or whatever mechanism may take its place, do we think that would give Members of Parliament more of an opportunity to hold the Ministry of Defence to account in Parliament?

Mr Jones: You should be answering these questions.

Mr Robathan: To hold the Ministry of Defence to account in Parliament.

Mr Jones: Why don’t you answer? It’s your civil servant, but these are questions we should be asking you, there.

Mr Robathan: Well, you’ll have lots of opportunity later.

Mr Jones: No, we shouldn’t. You should be sat there, answering the bloody questions.

Chair: Mr Barlow, would you like to answer the question?

Mr Barlow: Clearly, I would agree with the Minister’s remarks. They very much build upon the points that the panel has already made about the significance of the report and the opportunity it provides for Parliament to hold the Government properly to account.

Chair: We have one or two more questions, but before calling on Christopher Pincher, may I commend Air Commodore Wilcock for sitting so brilliantly silent? We haven’t actually been covering your areas of responsibility, but I nevertheless thank you for not adding to the length of our sitting.

Q111 Christopher Pincher: We’ve stepped around the question of stakeholders to the report to Parliament, which I understand supervenes the ERG report but doesn’t actually replace it. I understand that the ERG report will still be made to the Ministry of Defence. To what extent can we expect stakeholders providing input to the report to have their input explicitly included in the report, so that we can see who said what about the key issues around housing, education, health care-and any other issues that the Secretary of State thinks should be included?

Mr Barlow: I’ll just ask Simon to talk through the actual process and what’s replacing what, but the straight answer to that is that it will depend on the particular issue in question and whether it is necessary for the sake of clarity to separate out the views of individual stakeholders. It may well be so.

Simon, do you want to say something about the process-what more we can say at the moment, given that we have not fully finalised it?

Mr Lowe: Yes. I would expect us to identify the origins of points made in the report simply in the interests of clarity. The importance of the points made will obviously depend on their origin. If we are making a comment about the situation as it applies to veterans, the fact that it comes from an authoritative organisation such as the Royal British Legion will be significant. Similarly, if we are reporting on the experience of Service Personnel, we will want to make clear that it is the Army or the Navy that has a particular problem, and give as much detail as we can. I would see it as integral to the nature of the report that we would be able to indicate the origin of that information.

Q112 Christopher Pincher: So having identified the origin of the information, how do you go about catching that information in the first place? What mechanism do you use to go out to consultation?

Mr Lowe: We have experience now of working closely with the members of the External Reference Group and with the chain of command itself, and harnessing the other sources of information that are available to us. Perhaps during the course of an annual cycle of a summer, we would be inviting those organisations to highlight the points that they felt were suitable for inclusion in the report, and we would then start to put it together.

Q113 Christopher Pincher: But you appear to recognise that the ERG is integral to the production of the report; you will all probably nod your heads-no nodding, but I’ll put the point anyway. Isn’t it worth while including the ERG in the Bill and simply saying that the Secretary of State should be required to consult it, plus any other stakeholders that he may from time to time require?

Mr Lowe: I think there is an issue concerning the statutory body.

Mr Morrison: The ERG is an ad hoc wide-ranging group. I would have thought that one of the benefits of not defining it in legislation is that we would want to keep flexible and to potentially widen the range of people who are co-opted into that group. A definition in the Bill would be no more than to list, in effect, a number of people-presumably the current members of the ERG-who had to be involved. But there is no way in which this report can be written without obtaining information, ideas and so on from the ERG members and no doubt other people as well, so I see no benefit from saying the Secretary of State must consult the list of the current members as a matter of law.

Q114 Christopher Pincher: The reason why I make the point is this. You’re accepting that there will be specific areas that are reported on, so they can be in some way baselined, and you will at some later point define what specific targets you’re going to be measuring those areas against. If you are potentially increasing the number of your inputs to those areas of reporting and that set of inputs could be infinite, you will essentially have a shifting sands baseline, so you can’t measure year on year how you’re progressing against those targets.

Mr Barlow: I don’t think that’s a necessary conclusion to draw about how the process will work out. It has already been mentioned that the report will include a combination of things. Some things will prove to be enduring elements in the report, including some particular measures that have acquired either a political significance or a significance for particularly important parts of the stakeholder group. Some things will recur and others will not. It’s the role of those managing the process to try to produce a report that is sensible in length and content and that fairly reflects the principal stakeholder views, as well as those of the Government.

Q115 Christopher Pincher: You might have a report that has both quantitative measures, which are based on targets and inputs that don’t change over-much, and qualitative reporting, which might be dynamic because of specific issues that have arisen over time and that you choose to include.

Mr Barlow: Yes.

Q116 Gemma Doyle: On a point of clarification, Mr Barlow, you have said that the report from the Secretary of State will replace the report of the External Reference Group, but the Minister, who I appreciate is not giving evidence today, stated in the House that the ERG would continue to be asked to produce its report, which would be published in full and unedited. What is the correct position?

Mr Barlow: We’re replacing the previous report on the Service Personnel Command Paper. Simon, do you want to say something about what the process will actually look like and what documentation will be produced?

Mr Lowe: To the extent that this has been finalised, I think there are various ways in which we could produce that kind of report. Ministers were clear in the debate that the voice of the ERG would come through. I think it’s in that sense that we would maintain its report, rather than necessarily as a separate publication. I think the priority is to make sure that the views of the ERG as a whole and members of the ERG can be clearly recognised in the report that is produced.

Q117 Gemma Doyle: To be clear, as I said, the Minister did state-this is on the record in Hansard-that the report would continue to be published in full and put in the public domain. That’s the report of the ERG. But that’s not the case now; that position has changed.

Mr Barlow: No, I don’t think the position has changed. I think Mr Lowe has very fairly represented it. I think it depends in large part on the degree to which, in the preparation of the Secretary of State’s report, the ERG as a body is prepared to say, "Yes, in full, this fairly represents the views of us all, including the independent members," in which case the requirement for two reports doesn’t arise. We have left it on the table with the ERG that if we come to the point when, in producing the annual report, we need to separate out in some way the views of the independent members and have a separate statement recording their views prepared in some way, either embodied within the report or set out alongside it, we will do that. But we’re very much doing that on the basis that what’s important is that the views of the ERG are fairly represented.

Q118 Chair: Mr Barlow, can you help me with this? The Minister said, "We believe that it is of vital importance that the External Reference Group is retained and continues to produce its own annual report." Is that the case?

Mr Barlow: Yes.

Q119 Chair: The issue is, then, whether it would be published. Is that the issue?

Mr Barlow: I think the issue that you’re asking me about is whether that report is the same as the-

Q120 Chair: No, that is not really the issue I am asking you about. Would the report of the External Reference Group be published?

Mr Barlow: Simon, I think our proposition is that there is one report. Is that correct?

Mr Lowe: I think the issue is how far it would be integrated into the single report.

Q121 Chair: Yes, but that was not the question I asked. Would the report of the External Reference Group be published?

Mr Lowe: I don’t think it would appear as an entirely separate publication.

Q122 Chair: Well, let’s take that as a no, then. So there would be a report, which would not be published?

Mr Barlow: No. That is not the case. We will produce, with the External Reference Group, the annual report on the Covenants as set out in the Bill. That, therefore, is a report presented by the Secretary of State, which has been prepared with the External Reference Group. It therefore represents their annual report. We have recognised, in discussing this with the external members of the ERG, that it is important that that process genuinely presents their independent views within that annual report so that they can say it is effectively their report. If, in doing that, they wish to raise matters separately and we cannot find a way of fairly representing their views within a report that the Secretary of State has presented to the House, we may see a separate document being produced. We have not crossed that bridge yet.

Q123 Chair: So you would accept that further thinking, further discussion and further consideration are needed on this issue?

Mr Barlow: Yes. I have to present it to you that way because that is the progress we have made within the External Reference Group itself. I can’t misrepresent the views of the independent members.

Q124Mr Jones: Are you suggesting that the Secretary of State’s report will basically be the old reference group’s report?

Mr Barlow: That is the basis on which we have been proceeding, yes.

Q125 Mr Jones: So when the Minister said that the reference group report would still be approved, technically it would be. So this great radical change, apart from reporting this to Parliament, is not exactly a great radical move forward, is it?

Chair: I think that this is an issue that may come up in amendments during the formal consideration of the Bill.

Mr Jones: I also want to be able to question the Minister on this.

Chair: The Committee hears that. Now, final questions.

Q126 Bob Russell: One thing I am confident of is that serving and former members of Her Majesty’s Armed Forces will not be overly impressed with the party political posturing and point scoring that has been going on from one direction. I want to put on record the fact that the previous Government did a lot of good work and this Bill is a continuation of that. We should look on it as a seamless transition rather than anything else. That is how I am trying to address it.

One aspect not in the Bill, which I seek some thoughts on, is an issue that I put directly to the Prime Minister a few weeks ago. To my utter amazement, a war widow’s pension is taxed. Indeed, a young war widow in my constituency tells me that the payment does not even appear as a war widow’s payment. There are two aspects there. First, can we have a mechanism to acknowledge that the payment she is receiving is a war widow’s pension? Secondly, it should be tax free.

Mr Garrett: Under the war pensions scheme neither war pensions nor war widow’s pensions are considered taxable by HMRC, so I don’t understand the point you are making. The issue of what that payment was in relation to, and whether it was a war widows’ pension, was raised yesterday in the statutory body that looks at issues of compensation and pensions-the Central Advisory Commission on Pensions and Compensation. The matter was raised by the War Widows Association at that meeting.

On the Service pensions, the Veterans Agency went away from that meeting to ensure that all payment information provided for widows made it clear to them what payments they were getting.

Q127 Bob Russell: I am most grateful for that. Perhaps I can revisit the matter, because the young lady in my constituency is not of that view.

Mr Garrett: If there is some confusion, and if you can provide information on the individual case, we can look at it.

Q128 Bob Russell: I will, and I appreciate that. Finally, in what ways are the Bill team and others in the Ministry of Defence and the Government engaged with the charity and voluntary sector to improve the Bill? I am not just talking about the main charities that we know about, such as the Royal British Legion; ABF, which I wish would still call itself the Army Benevolent Fund; Help for Heroes; and SSAFA, but some of the specialist charities, if I may use that term. One has been mentioned already-the War Widows Association-and there is Veterans Aid and Combat Stress. There are also various regimental and Service organisations. How are those organisations being brought in?

Mr Lewitt: The organisation with which Mr Garrett’s divisions, and mine, do a lot of business is the Confederation of British Service and Ex-Service Organisations-COBSEO. It pulls together all those charities, large and small. Indeed, it has recently proposed an arrangement that it calls clustering, whereby it will provide in each of the main charity areas a group of charities that have an interest in that area, and one of the larger charities will act as a lead partner for the cluster. That has proved useful to us in the area in which I am working at the moment-trying to increase financial awareness among Service Personnel, and providing better financial guidance and advice to those most vulnerable, such as early leavers and the injured. We have used the COBSEO arrangements to start to move forward in agreement with a number of charities and, if we can make that work, it will probably be led by the RBL. It should also include a number of other charities, such as the White Ensign Association, if possible.

That is an example of how the new thinking-I hesitate to use the word "reform"; it is the wrong word-that COBSEO is bringing to the area enables us to match, almost, the wants of Service and ex-Service Personnel with the benevolence of charities that exist to support those groups of people. Jeff, should I have said something different, or else?

Chair: What a wonderful person, to ask that.

Mr Garrett: Sounds very accurate, though.

Mr Lowe: I have one quick thought. To spare Mr Lewitt’s blushes, because he runs it, we also have an annual welfare conference. That is an opportunity for, perhaps, some of the regimental associations and some of the smaller charities that may not otherwise be involved in these discussions to come to the Ministry of Defence to hear what is happening in the welfare domain and feed their concerns back to us. That is an extra way we can consult directly with some of the smaller organisations.

Q129 Chair: Okay. Thank you to all of you, not least to you, Air Commodore Wilcock, for your contribution this morning. Mr Barlow, is there anything you would like to add?

Mr Barlow: We covered one question very briefly in the first session, where I noted that Air Commodore Wilcock might be able to give the Committee further advice.

Chair: I know you did, but I’ve forgotten what it was.

Mr Barlow: It was about drug testing and the doctor-patient relationship, where a Service doctor was taking a sample.

Q130 Chair: Yes. Air Commodore Wilcock, is there a problem with a doctor who is involved in giving normal treatment to a patient also being required to do drug tests on that person? The BMA has raised with us the possibility that it should be a forensic physician, and we asked whether that was, in fact, practical. Would you care to help us through this?

Air Commodore Wilcock: Thank you. There is a tension, and the MoD recognises the tension that the BMA has raised. Our response would be that in the normal circumstance in the UK, if I can take that as an example, where a forensic medicine service exists to support police investigation, we would naturally prefer to defer to that service. In that circumstance, we would not normally ask the MoD’s uniformed doctors to take samples for forensic purposes. However, as was alluded to earlier this morning, there are circumstances where that won’t apply, such as on operations, where the only available medical practitioners are the uniformed doctors. That gives rise to the dual loyalty problem that the BMA has identified.

We are able to say that that is not a new issue in military medicine; we recognise it routinely, and it is part of our normal practice, in that we deal with both general practice and occupational health care in our primary care delivery system. So, our practitioners understand the need to be able to wear two hats at any one time. If there were a circumstance where a doctor was the primary care deliverer, and was then asked to take forensic samples, they would have to make it very clear to their patient that they were acting in a different capacity-and of course, the normal consent processes would apply.

So, although we recognise the tension and respect the BMA’s view that there should be separation of the roles wherever possible, we would have to reserve the right to say that it is not always possible, and therefore, we could not enshrine that particular principle in law.

Q131 Chair: Except in some circumstances, of course, the patient might not be in a condition to give consent.

Air Commodore Wilcock: Yes, in which case, again, we would acknowledge the point that is made, which is that if samples are taken, they should be taken only for storage purposes, with the expectation that if the patient recovers to the point that they have the capacity to consent, that discussion can be had at a later date.

Chair: I see.

Air Commodore Wilcock: So again, we would apply the normal recognised principles and practice.

Chair: Thank you very much, and you have contributed now.