16.The Armed Forces Covenant was first published in May 2011 although its principles were first conceived in the then Government’s 2008 Command Paper “The Nation’s Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans”. The Covenant defined the extent of the Armed Forces community and set out fifteen thematic areas within which support to that community should be provided (including terms and conditions of service, healthcare, education, housing, benefits/tax, family life and transition). It further sought to identify the organisations and institutions which would be required to provide that support, and to articulate the obligations and principles which underpin the Covenant. The Covenant articulates the view that the nation has a moral obligation to members of the Armed Forces Community in return for the sacrifices they make. It states that those who serve or have served in the Armed Forces, and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services. It also states that special consideration is appropriate in some cases, particularly for those who have been injured or bereaved. These principles were enshrined in law in the Armed Forces Act 2011.
17.The Armed Forces Act 2011 requires the Secretary of State to lay an Annual Report before Parliament on the implementation of the Covenant. The first Covenant Annual Report was published in 2012 and a Report has been published for each subsequent year. In preparing the Annual Report, the Defence Secretary must have particular regard to:
18.Although the Annual Reports have evolved over the years in content and format, common to each edition has been a list of commitments for the year ahead and reflections on measures previously introduced. Each Annual Report also contains a section of unedited observations from the external members of the Covenant Reference Group (CRG). The CRG brings together representatives of Government Departments and external organisations, including the Confederation of Service Charities (COBSEO), the Royal British Legion and the single Service Families Federations.
19.In recent years the Scottish and Welsh Governments have published their own annual reports on the support they provide to the Armed Forces community. All 407 local authorities in mainland Great Britain and four Northern Ireland councils have pledged to uphold the Armed Forces Covenant. Many have appointed Armed Forces Champions, or equivalent roles, to help implement the commitments made in the Covenant. In addition, other public bodies have also appointed such advocates in their policy areas.
20.The MoD also carries out a Regular Armed Forces Continuous Attitude Survey, a Tri-Service Families Continuous Attitude Survey and a Reserves Continuous Attitude Survey. These surveys inform the development of policy and measure the impact of decisions affecting each cohort.
21.In the 2019 Queen’s Speech, the Government announced that the Armed Forces Covenant would be “further incorporated into law”. Clause 8 of the Bill inserts a new section into the AFA 2006. The clause amends Part 16A of the AFA 2006 to impose a duty to have due regard to the principles of the Armed Forces Covenant. The new duty to have due regard applies to specified persons or bodies when exercising certain housing, education or healthcare functions. Subsequent clauses then specify the persons or bodies who are subject to the duty in England, Wales, Scotland and Northern Ireland and reflect the relevant legislation for each nation.
Clause 343AE provides for the Secretary of State to issue guidance in relation to the duties imposed by the Bill to which those persons or bodies subject to the duty must have regard when exercising any of the listed functions. The Secretary of State is required to consult the relevant Welsh or Scottish Ministers or the Northern Ireland Executive so far as the guidance or regulations relates to devolved functions. The guidance must be published.
Clause 343AF enables the Secretary of State to widen the duties in clauses 343AA to 343AD by specifying additional persons or bodies who will be subject to the duties, and by specifying additional functions in relation which the duty may apply (e.g. areas other than healthcare, housing and education). The Secretary of State is required to consult the relevant devolved administrations when exercising this power. The power is exercisable by way of regulations, subject to the affirmative procedure.
22.During our assessment of Clause 8, we considered:
23.Most of our witnesses agreed that a duty of due regard was an appropriate mechanism to bring the Covenant further into law. Michael King, Local Government and Social Care Ombudsman, thought that it was a concept with which local government was familiar and that it was a workable mechanism. 55% of respondents to our survey agreed that the introduction of the duty of due regard would help current and former Service personnel and their families receive the support set out in the Armed Forces Covenant.
24.However, representatives from local government called for greater clarity and detail of what the duty would entail, the Government’s expectations and whether there would be additional resource burdens. They also highlighted that it could be difficult to identify veterans to whom they would be expected to apply the duty. The Royal British Legion told us that they hoped that those local authorities with a smaller or more hidden resident Armed Forces community would benefit most from the new due regard duty and the level of awareness that it may bring. They also suggested that the inclusion of a question in the forthcoming census regarding whether a respondent was a member of the Armed Forces community would help “shed more light on local armed forces populations, thereby enabling a more accurate assessment in due course of the Bill’s impact on local authorities”. In addition to the census, the MoD highlighted two other initiatives: the publication of the annual population of veterans which gives data on various matters down to county level and the ‘map of need’ which examined the services applied for by veterans and families through the Veterans Gateway.
25.The Bill places a duty to have due regard to the covenant principles on public bodies responsible for the delivery of functions in housing, education and healthcare. At Second Reading, the Minister told the House, “we have chosen those three areas because they are the bedrock of a stable and secure life”.
26.In its written evidence, Cobseo, while generally welcoming the Bill, expressed concern about limiting the Bill’s provisions to housing, healthcare and education:
Limiting the scope of the legislation to Healthcare, and some aspects of Housing and Education, means that many issues of vital concern to veterans, such as social care, pensions, compensation, employment, benefits and support within the criminal justice system, are not included. We would have preferred a broader scope, but note the intent to facilitate future upgrades, and we will be looking to see progress on this as we move forward.
Laura Pett, Head of Public Affairs and Campaigns at the Royal British Legion, was also concerned that the Bill appeared not to acknowledge the interconnectivity of Covenant areas, citing, for example, that housing problems are rarely experienced in isolation to an employment problem.
27.Evidence also highlighted the risk that the focus on these three areas could negatively impact other areas of the Covenant, Cobseo’s written evidence stated:
We are concerned that by setting a legal standard in some areas, hard-pressed Public Sector providers may compensate by reducing support elsewhere. We note that it is the Government’s intent that this legislation builds on the progress already made, but care will be needed to ensure that there are no unintended consequences.
28.Laura Pett also mentioned the risk that policy areas not within the scope of the Bill might see their importance downgraded. Ministers from the Scottish and Welsh Governments agreed that there was a risk that other areas of the Covenant would be seen as less important and highlighted social care and employability as being important areas not covered by the Bill.
29.Some concerns have been raised that the Bill’s provisions apply only to local government, and some education and health bodies but not to the UK national government and the devolved administrations. Laura Pett of the Royal British Legion said:
The annual report on the Covenant each year outlines just how much Covenant-related activity is undertaken by national Governments, and shows that, even where delivery of services may be local, the source of policy development and direction is very often central or devolved Government. As such, we strongly believe that national Governments and devolved Administrations should be within the scope of the Bill, rather than just local government and some health and education bodies. That would really reflect the day-to-day experience of the armed forces community, as well as the realities of policy development and the precedent set by other legislation that incorporates duties of due regard.
General (retired) Sir John McColl of Cobseo added:
I do think that there is a strong argument for the inclusion of central Government functions in this, and I am particularly focused on the immigration issue as an example of that. At the moment, the central Government traction that we have is that there is a moral requirement for Government to comply with the Covenant. That is fine as long as it works, but in some cases it absolutely does not work.
30.Given the role of the UK and Welsh Governments in setting national and strategic policy that directly impacts on how local services operate, Maureen Webber, Community Safety Spokesperson at the Welsh Local Government Association, thought there may be some merit in extending the duty to the devolved administrations. Ministers from the Welsh and Scottish Governments emphasised that this was a UK Government Bill but that any expansion of the application of the Bill to the UK Government and the devolved administrations would need to be undertaken by consultation and agreement.
31.When questioned about the MoD’s exemption from the duty of due regard, as a department of central government and in respect of the services it provides such as Defence Medical Services and Service accommodation, Lieutenant General James Swift OBE, Chief of Defence People, responded:
The MoD is already, in many ways, subject to a duty of regard to the principles of the Covenant. We are held to account for the delivery of the Covenant through a statutory requirement to report to Government annually, as you are aware. Indeed, the central Government’s delivery of the Covenant and related issues is regularly scrutinised through Defence oral questions, the House of Commons Defence Committee and other such means. Often, variation in the service delivery across local areas can inadvertently disadvantage the Armed Forces community, and that is obviously what the Bill is focused on.
32.The Secretary of State may issue guidance relating to the duties to be imposed. The guidance is subject to consultation, including with the devolved administrations, and must be published once finalised. The importance of this guidance, especially its early publication and the need for consultation, has been strongly emphasised by many witnesses. None of our witnesses told us that they had seen a draft of the guidance. Therefore, we made repeated requests to see the draft Statutory Guidance. At the start of our inquiry, the Bill Team privately provided us with a framework representing the Department’s current thinking on how the guidance relating to the Covenant might be structured, and what it might cover. However, it was not until the end of our evidence session programme that we received further detail.
33.Our witnesses thought it important that the guidance drew on the expertise and experience of those who have worked in the Covenant areas for some time or will be tasked with implementing it, as well as those who stand to benefit most from the Bill’s provisions. Given the significance of the statutory guidance, in terms of the implementation of the Bill’s provisions, Service charities stressed the importance of the principles of the Covenant being reflected in their entirety and not caveated or circumscribed in any way.
34.Local government witnesses felt it was essential that they were fully consulted on the guidance and were keen to produce it alongside the Government. Witnesses from the Convention of Scottish Local Authorities and the Welsh Local Government Association stressed the importance of the guidance taking account of the different legislation, legal systems and delivery mechanisms in place across the UK. Scottish and Welsh Government ministers agreed that if the guidance did not take account of the devolved position it would cause confusion and emphasised the importance of their having an input at an early stage.
35.The MoD told us that they intend to publish the Statutory Guidance after the Bill’s Royal Assent allowing them to take into account comments made during the Bill’s passage through Parliament. The MoD confirmed that the devolved administrations would be involved in the drafting of the guidance and that it would include details of the redress available to beneficiaries and encourage service providers to signpost this, as had been suggested by the Local Government and Social Care Ombudsman in his evidence.
36.At Second Reading, the Minister for Defence People and Veterans emphasised that the Bill did not place specific delivery outcomes on public bodies “not least because it is important that relevant public bodies retain the flexibility required to tailor decisions on service delivery to local circumstances”.
37.On this matter Ted Arnold, Senior Public Affairs and Policy Manager at Help for Heroes, told us:
We understand that local authorities want to be able to deliver the principles of the Covenant through a variety of mechanisms and in different ways. However, without clarity on how application of due regard will be monitored, there is an element of those who feel they have been let down or are the victim of a postcode lottery and have no real legal recourse.
I think the ultimate danger is that when services are strapped for cash, they will adhere to that minimum requirement about what they have to do and that might not necessarily be to give due regard, and in some cases, it may be below the existing voluntary arrangements.
38.General (retired) Sir John McColl of Cobseo added:
I think there is the potential for a legal requirement being placed upon local authorities for them to improve their performance. There is also the potential that it will not have the intended effect, because of the reasons that Laura and Ted have outlined. And the answer is: we don’t know and, frankly, nobody knows. So, what we need is to be able to monitor that closely, to see how it develops.
39.In her oral evidence, Maria Lyle, Director of the RAF Families Federation, was cautious about applying measures to assess the effectiveness of the Bill’s provisions:
I am in two minds about this one, if I am honest. Having been caught up in the past in an absolute thicket of Government trying to measure local authorities and NHS providers, and it becoming an industry in itself, I am slightly wary of how the measurement is applied and whether it will be of actual benefit to the personnel and families we support. Having said that, I think if you don’t set yourself a target and there is no baseline, it is very difficult to know if it is worthwhile at all, so I agree that some measurement is needed.
I think the question around how we measure and enforce this is, unfortunately, a slightly grey one. The question is more around, where is the political will and focus to deliver on the key outcomes? If we are just legislating for the point of putting measurements in that might never be achieved and will generate lots of effort in reporting on them, then I would be wary of that as a solution.
40.Local government witnesses were keen to emphasise that it was difficult to assess the resource implications of the Bill without clarity, especially resulting from lack of sight of the Statutory Guidance, on what was expected of them under the duty of due regard provisions in the Bill. They argued that it would be erroneous for central government to infer that there were no resource or funding implications.
42.We recognise that there are concerns around how the duty to have due regard will work in practice, due in part to the delay in the publication of the draft Statutory Guidance and the decision not to have prescribed outcomes, and around some areas of the Covenant being brought into law whilst others are not. There are also concerns that the Bill applies to local government and some public bodies but not to central nor devolved governments. We further recognise continued concern with regards to the lack of alternative routes of redress for veterans.
43.While we note the Government’s intention not to facilitate prescribed outcomes and that it is still considering appropriate mechanisms to measure the effectiveness of the Bill’s provisions, it is important to gauge the impact of the Bill’s measures on the delivery of the Armed Forces Covenant. Therefore, as a first step, we recommend that questions be included in future editions of the annual Continuous Attitude Surveys for the Regular Armed Forces, Service Families and the Reserves on whether the Covenant has had a positive or negative impact on respondents in the areas of housing, healthcare and education in the last 12 months.
44.We recommend that, if enacted, the Government should review after 24 months of operation how the duty to have ‘due regard’ works in practice and whether it is negatively impacting other areas of the Covenant. The Armed Forces Covenant Annual Report should review the effectiveness of the legislation and comment on future scope.
45.The House of Commons Defence Select Committee should conduct post-legislative scrutiny into how the Armed Forces Act has worked in practice once it has come into force. The Ministry of Defence should submit a memorandum to the Defence Committee 24 months after the legislation is enacted, which the Committee could then use as the basis for this work.