APPENDIX 3: CONSULTATION AND THE MINISTRY
OF DEFENCE
Memorandum by the Ministry of Defence
Introduction
1. The Committee highlighted its concerns about
a number of areas relating to the management and production of
secondary legislation in its 29th Report in session 2005-2006.
In particular the Committee has, on a number of occasions, raised
concerns about the MoD's approach to stakeholder consultation
when developing the policies enacted by the statutory instruments
put before it. This paper has been produced to offer an explanation
of our approach to consultation as part of policy development,
in response to the requests for clarification made by the Committee.
2. The Ministry of Defence (MoD) is a large and
complex Department of State. It has large landholdings including
housing, offices and military bases; its own police, fire, medical
and health services; educational facilities for adults and children;
a large transport fleet consisting of a variety of standard and
non-standard vehicles, in addition to ships and aircraft; and,
its own discipline and court system.
3. The MoD is staffed by civilian and Service
personnel, who carry out a vast range of tasks covering many trades
and professions. Civilian and Service personnel work together
in many areas of the MoD, including policy branches. Service personnel
at all levels are often posted, following active service, to areas
where can they bring valuable experience and knowledge with them.
Civilian staffs also serve in areas of conflict in support of
their Service colleagues, thereby gaining a good insight into
operational requirements.
4. Some of the tasks which the MoD undertake
do not lend themselves to the type of consultation undertaken
by other Government Departments with the public where proposed
policy changes might affect society at large. For example, MoD
would not ask individual Service personnel what offences there
should be or what courts should consider. However, on this kind
of issue no policy decision would be made until all three Service
Commands, who each represent their own personnel, are in agreement.
Nevertheless, there are many areas where the MoD does consult
in the same way as others in Government.
5. The Ministry of Defence takes the development
and delivery of both its primary and secondary legislation very
seriously and aims to ensure that all the legislation it produces
properly enacts fully developed policy; that all interested parties
including stakeholders have been consulted and that views expressed
have been carefully considered and that the legislation has been
properly drafted to meet the MoD's requirements.
The Committee's specific concerns relating to
MoD
i) There is not enough stakeholder consultation;
ii) Top-down policy decisions without consultation;
and
iii) Not complying with Cabinet Office guidance
and code of practice on
consultation.
6. The Committee has indicated through its Adviser
that it recognises that consultation processes on matters relating
to the Armed Forces cannot be the same as consultation processes
in other areas of Government policy; but the Committee does expect
that policy formulation will be improved by taking account of
comments from those affected by policy developments, and that
effective consultation should serve this end. When SIs are laid
before Parliament, the Committee expects that the accompanying
Explanatory Memoranda will give a full account of the consultation
processes that have preceded the finalisation of the SIs.
Extract from the Committee's Guidance to Departments
on Explanatory Memoranda
"The Committee considers that proper consultation
is a crucial part of the process of getting an instrument right
before it is laid. As the House of Lords cannot amend secondary
legislation, it is important that each instrument should have
been exposed to those who will be affected by its provisions and
its suitability reviewed in the light of their reactions before
it is laid before Parliament. The EM should set out who was consulted,
over what period and with what responses. There should be some
analysis of consultees' responses and a justification of the department's
policy response to the opinions expressed. A link to a summary
on the department's website is useful."
7. This paper aims to reassure the Committee
that the approach taken meets its concerns.
Ministry of Defence Legislation
8. The MoD produces very little primary legislation.
However, prior to any legislation being drafted, both internal
and external consultation is undertaken. An extract from the Special
Report of Session 2005-06 by the Select Committee on the Armed
Forces Bill is attached at annex A as an example. The secondary
legislation (with which the Committee is concerned) that follows
on from the primary legislation is also subject to consultation
with stakeholders and other relevant bodies. Any objection to
the main principles of the policy would not be expected as that
would normally have been dealt with during the passage of the
Bill and therefore the focus of the consultation for the secondary
legislation is on the specific detail.
9. In addition to the secondary legislation produced
by the MoD which follows directly from Defence Acts, a large number
of SIs are required to be made to align defence regulations with
other Government Department's legislation. Examples of this are
where the Home Office/Ministry of Justice make regulations relating
to police practices and criminal offences, employment laws made
by the Department for Work and Pensions and transport regulations
made by the Department for Transport, which then need to be reflected
in defence regulations.
Who are the Stakeholders affected by the MoD's
legislation?
10. The MoD is not a regulatory body and legislates
in a relatively specialised area. The stakeholders are, therefore,
mainly current Service personnel and ex-Service personnel and
their representative organisations, those in civilian employment
who are in the reserve forces and their employers and potential
recruits.
11. MoD civilian employees are not generally
stakeholders other than when they are subject to the Service Discipline
Acts. MoD civilians, along with employees in the private sector,
are subject to legislation made by other Government Departments
in respect of employment, pensions and health and safety etc.
The Ministry of Defence Police and possibly other civilian specialist
groups do, however, require separate legislative treatment, but
this is rare.
Consulting with Stakeholders
12. The MoD notes that the Committee recognise
that consultation with the stakeholders identified above cannot
be conducted in the same way as in other areas of Government policy
and that the MoD is not trying to excuse itself from consulting
with stakeholders. However, within the constraint that there are
no trades union bodies and in general few professional bodies
or representative groups, outside the ex-Service organisations,
that relate to our particular stakeholders, the MoD ensures that
there are procedures in place so that the views and comments of
stakeholders are taken into account when formulating its policies.
Service personnel may, however, join trade and professional associations,
as well as organisations representing their interests, these range
for example from the Forces Pension Society to the Armed Forces
Lesbian and Gay Association. Trade Unions are consulted extensively
on matters relating to possible base closures and re-organisations.
Once the policy has been formulated and enacted stakeholders are
also consulted for feedback on its operation in practice.
How and Who does MoD Consult
13. The MoD undertakes a variety of briefings,
consultation and research both internally with its Service and
indeed civilian employees and also with external agencies on a
wide range of issues relating to defence business. Not all the
consultation or research undertaken results in legislation. The
information and views gathered is also used generally to develop
and support changes in policies and working practices. The following
examples demonstrate the variety of consultations undertaken.
- Internal Consultation
14. The MoD carries out "Continuous Attitude
Surveys" (CAS) which seek views on a range of subjects and
cover each Service. Focus and Stakeholder groups are set up to
consider specific subjects. The Head of each Service (Navy, Army
and Air Force) has a briefing team that not only disseminates
information but also feeds back reaction. There are also surveys
that relate to specific areas of policy development.
15. The Defence Analytical Service Agency is
also able to provide information and data from the numerous surveys
that it undertakes. Military staff officers are also a source
of information. They represent the views of Units and individuals
in their chains of command. Wide discussion and consultation to
develop policy on specific issues is undertaken. This incorporates
views from personnel at lower levels including junior ranks.
(a) Surveys
i) Each Service carries out "Continuous
Attitude Surveys" (CAS). The Army in particular has been
conducting these surveys for 20 years. The surveys are sent to
a stratified random sample of serving officers and other ranks,
TA and Reserve personnel, families and Service leavers. The surveys
cover a number of areas ranging from enjoyment, pride, team spirit,
leave entitlement, length of operational tours, equipment, military
health and dental treatment, pay, housing, health and safety through
to fairness of Service discipline. These surveys are carried out
on a regular basis and changes in attitude or views can therefore
be monitored. They are used for example to identify where measures
are needed to influence motivational issues (pay, pensions and
work/life balance) and to inform policy development and assessment.
The results are published on the internal MoD website. The Technical
Annexes are also published on the external MoD FOI publication
scheme website and copies are provided to the libraries of both
Houses. The CASs provide individual views and attitudes on a number
of general areas and give an overall picture.
ii) Where the MoD is looking at changing a specific
policy or introducing a new strategy, it conducts surveys covering
the particular area of policy under consideration. Areas where
such surveys have been carried out include: changes relating to
tailored and flexible careers; branch (trade) development within
the Royal Navy; alternative manning concepts; and, reserve integration.
In addition to the consultation for the Armed Forces Bill at annex
A, attached at annex B is an example of where consultation has
been used to improve the MoD's training environment, the delivery
of training, welfare and support and risk reduction. The introduction
of the new Armed Forces Pensions and Compensation schemes in 2005
also involved a full consultative process (review, written consultation,
focus groups, presentations and web-based information) with both
internal and external stakeholders. More recently, an offer to
allow Gurkhas to transfer to one of the Armed Forces Pension Schemes
has been supported by a full range of information and briefings
in the UK and overseas and was subject to consultation, including
with the Forces Pension Society.
(b) Service Briefing Teams
The three main teams are:-
i) The Divisional Support Team for the Royal
Navy;
ii) The Chief of General Staff's Briefing Team;
and
iii) The Air Member for Personnel Briefing Team
for the Royal Air Force.
The briefing teams each work in a similar way and
are part of the MoD corporate communication activities. The teams
aim to visit each establishment on a rotational basis seeking
the views of all Service personnel. As well as briefing Regular,
Reserve and TA Service audiences, they make presentations to a
wide range of civilian audiences which include students, teachers,
other Government Departments, industry and business. The briefings
cover a wide variety of subjects and are used to publicise policy
decisions, address points raised and gather feed-back.
(c) Internal Focus and Stakeholder Groups
In addition to surveys the MoD also run focus and
stakeholder groups on specific proposed policy changes. These
Groups provide the opportunity for face-to-face discussion and
the opportunity to gather feedback. For example:
i) When looking at skills development (future
trade requirements and associated training) the Royal Navy ran
a pilot scheme. In conjunction with the pilot scheme, they also
ran a series of focus groups covering the periods pre-implementation,
during and post the pilot scheme, thus allowing feedback and the
scheme to be assessed.
ii) When developing alternative manning arrangement
the focus groups provided feedback that allowed an assessment
to be made on the impact of any initiatives on personnel.
iii) The MoD body called SABRE (Supporting Britain's
Reservists and Employers) was set up to liaise with the employers
of reservists.
- External Consultation
16. The MoD does engage with external bodies
on proposed policies and changes to them. Depending on the area
under consideration any or all of the following would be consulted:
- The independent Armed Forces Pay Review Body.
- The statutorily established pensions Central
Advisory Committee. This body provides advice on War Pension and
Armed Forces Compensation Schemes and related issues. It includes
representatives from the principal ex-Service organisations; The
Royal British Legion; the Royal British Legion (Scotland); The
British Limbless Ex-Serviceman's Association; the Ex-Service Mental
Welfare Society (Combat Stress); The Soldiers, Sailors, Airmen
and Families Association and the War Widows Association. The War
Pensions Committees, a national network of local committees, are
also represented. See also the note under "MoD Plans to Improve
Consultation" (paragraph 19 below).
- Ex-Service Charities and voluntary support groups
individually or collectively through the Confederation of British
Service and Ex-Service Organisations (COBSEO). These include the
Forces Pension Society and single Service support organisation.
- The Veterans Forum - chaired by Ministers and
the Veterans Policy Unit, this deals with a range of issues affecting
former Service personnel
- The Families Forum (chaired by MoD Ministers)
- the Council of Tribunals
- Presidents of the Pensions Appeals Tribunals
- MoJ Tribunals Service
- Confederation of British Industry
- Trade Union Congress
- Federation of Self Employed and Small Businesses
- Naval Families Federation
- Army Families Federation
- RAF Families Federation
- MORI
- Other Government Departments
- Devolved Administrations
17. MoD has also sought advice from the Institute
of Employment on how flexible careers are managed and remunerated.
Information from employment attitudes surveys which target potential
recruits has also been used to inform policy development. Departmental
policy areas are advised that where possible and practicable the
Cabinet Office guidance should be followed. Where it is not feasible
to comply with that guidance, there must be good reason and Ministerial
approval must be sought.
Example:
| MoD carried out a Regulatory Impact Assessment in 2005 to support a Statutory Instrument (SI 2005/859) entitled "The Reserve Forces (Call-out and Recall)(Financial Assistance) Regulations 2005". A Regulatory Impact Assessment was prepared and laid in Parliament and was sent to: the CBI, the TUC, the Federation of Self Employed and Small Businesses, the Reserve Forces and Cadets Associations. Copies were also sent to SABRE and made available on both the MoD and SABRE websites. A hard copy of the RIA is attached for information [not printed]. It is also available in the House Libraries.
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How does MoD publicise new legislation, policies
and developing policies
18. New and developing policies and any new legislation
affecting the MoD's stakeholders, both Service and civilian, are
communicated and publicised widely through a number of media.
This includes the use of the MoD websites, internal single Service
and MoD-wide websites; through internal and external magazines,
such as Soldier, Broadsheet and RAF News and many other internal
means of notification. Examples include Defence Instructions and
Notices (DINs), Navy Notices called Galaxy Notices, Director Staff
and Personnel Instructions for the Army and Chief Clerks Bulletins
and Internal Briefing Notices for the RAF, along with numerous
other MoD publications.
MoD plans to improve consultation and heighten
awareness
19. The MoD recognises the importance of ensuring
that policy areas appreciate the need to continuously improve
their consultation processes through the use of robust research
methods and engaging the widest range of stakeholders. Policy
areas are being encouraged by members of the Defence Management
Board to discuss any potential changes with stakeholders well
in advance of the final formulation of any new policy development
or changes to existing policy and to ensure programme timetables
make allowances for this.
Example:
| MoD's recognition of the need to consult is exemplified by the review work that is currently underway concerning the pensions Central Advisory Committee. The MoD is reviewing the role and function of the committee and, although it is too soon to anticipate what the outcome of the review will be, the review will, among other things, examine how the role of the committee might be expanded to provide a consultative mechanism for the full range of Service pension and compensation schemes. The MoD will inform the Merits Committee on the outcome of this review.
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20. The MoD also runs employee relation workshops
designed to improve understanding of the different stages of consultation
processes.
Conclusions
21. The nature of the MoD's business and the
way it is undertaken is unique across Government and cannot always
be totally transparent. The MoD recognises that it is vital that
our Service and civilian personnel are trained and equipped for
their duties to ensure continued operational effectiveness. As
an employer MoD aims to ensure its policies reflect the particular
needs of its personnel along with meeting its legal obligations.
The MoD takes its responsibilities toward all its personnel very
seriously, respects and considers seriously the views expressed
by them and takes account of those views when formulating policies
that will affect the way they work and their lives in general.
22. Surveys and Focus groups are considered by
the MoD to be a very valuable management tool and the Service
briefing teams are also a valuable means of disseminating information
and gathering the views of personnel, potential employers and
others affected or touched by defence matters.
23. The MoD recognises the value of proper consultation
and the need to explain clearly how and who the MoD consults in
the formulation of policies. The MoD recognises that it may not
in the past have taken the opportunity to explain in sufficient
detail all the consultation (both internally and externally) that
may have taken place in the development and refinement of policies.
The MoD's aim now is to ensure that sufficient explanation of
all the activities highlighted in this paper is brought to the
attention of the Committee in future. In particular, when the
MoD lays an SI which has been finalised in the light of a consultation
process, the accompanying Explanatory Memorandum will provide
an adequate account of the process.
Ministry of Defence
October 2007
Annex A
Extract from a Supplementary Memorandum from the
MoD (dated February 2006) published in the Special Report of Session
2005-06 by the Select Committee on the Armed Forces Bill (ref
HC828 dated 9 May 2006).
Consultation
1. Following some initial scoping work, a Bill
Team was established in September 2001 to conduct a thorough review
of Service discipline policy and related legislation in the Service
Discipline Acts. This involved examining the operational requirements
that supported the retention of current legislative and policy
differences between the three armed forces. In carrying out this
review we took into account all relevant factors, including recent
operational experience.
2. The Bill Team undertook visits to a wide range
of Service establishments and held discussions with Service personnel
of all ranks. Detailed discussions were also held with representatives
of the Armed Forces of the United States, Canada, Australia and
New Zealand, all of whom have forms of harmonised Service legislation;
and we received helpful responses to questionnaires seeking information
from the French, German and Dutch Defence Ministries. Our proposals
for the Armed Forces Bill were developed in concert with other
Government Departments, and we have kept the Devolved Administrations
informed. Where appropriate we have involved other stakeholders
such as welfare and families' organisations and the trade unions.
3. A list is attached of the individuals and
organisations we consulted.
4. Following the consultation, the proposals
for the new Bill were drawn together by the MoD working in concert
with all three Services. The proposals themselves were informed
by the review of existing legislation and the findings of the
consultation process. This phase of work was carried out by a
group called the Service Discipline Acts Review Working Party,
chaired by the Head of the Armed Forces Bill Team and involving
policy and legal staffs from all three Services and a representative
of the Office of the Judge Advocate General, as well as representatives
from the civilian Directorate of Legal Services. From the outset
the intention was that the work would be developed in time to
coincide with the guaranteed place in the parliamentary programme
in 2006.
5. The Bill Team is headed by a civilian but
eight of the eleven team members are drawn from the three Services.
Some of them have recent command and operational experience. All
of them have extensive experience of working in different service
environments. Given their responsibility for policy development,
the Service members of the team have worked closely with their
single Service policy staff. This has ensured that the views of
the services have been fully represented at all stages of policy
development. This active involvement will continue when work on
implementing the Bill, especially the practical application of
the provisions, gets underway. We intend to take the further opportunities
for consultation that will arise as we draw up the detailed rules
and regulations that will be included in secondary legislation.
6. In parallel with drafting the Bill, the Bill
Team have joined with Service policy staff in engaging with personnel
in each of the services to ensure that they are informed of the
changes in the Bill and the rationale behind them. We have also
engaged with other interested groups and individuals, such as
the families of Service personnel and civilian defence advocates.
We have also put in place a formal consultation with relevant
trades unions.
7. In addition, a wide-ranging communications
campaign has been underway for some time in which the Bill Team
has publicised the proposals to the wider Service community. A
range of media has been used including: a website, which includes
an email link for submitting questions to the Bill Team; articles
placed in single Service and organisational publications; presentations
to disciplinary seminars and commanding officers' fora; and briefing
notes to all units.
8. If enacted, we expect the Bill will be brought
into effect by the end of 2008. The internal communications campaign
will gather momentum as this date draws nearer in order that we
ensure there is an awareness of the changes across the Service
community. The campaign will include a series of roadshows to
most units. Those who deal with Service discipline on a day to
day basis will receive training through a structured programme
prior to implementation.
Individuals and Organisations Consulted
9. Seminars were held with the Principal Personnel
Officers and their staffs at Portsmouth (Royal Navy), Upavon (Army)
and Innsworth (Royal Air Force). Visits by members of the Armed
Forces Bill Team generally involved discussion groups with officers,
senior and junior ranks at following units:
- Permanent Joint Headquarters, Northwood.
- HMS Newcastle.
- HMS Glasgow.
- HM Naval Base Portsmouth.
- RAF Honington (Joint Nuclear Biological and Chemical
Regt).
- RAF Aldergrove (including CO 5 Regiment Army
Air Corps).
- RAF Leuchars.
- HQ Northern Ireland.
- Air Officer Commanding Number 2 Group.
- Joint Helicopter Command.
- Joint Pay and Administration Strategy Study Team.
- Pristina, Kosovo: HQ Multi-National Brigade,
Queen's Royal Hussars, Highlanders, 35 Engineer Regiment, Joint
Helicopter Force.
- HQ Royal Marines.
- HQ London District.
- 7 Armoured Brigade, Hohne, Germany: HQ, Hohne
Court Martial Centre (Standing Civilian Court and Judge Advocate),
111 Provost Company Royal Military Police, 32 Engineer Regiment
.
- Cyprus: Commander British Forces, Commander Eastern
Sovereign Base Area, Joint Services Signal Unit, Combined Services
Support Unit, Cyprus Joint Police Unit, Cheshire Regiment, RAF
Akrotiri.
- Land Command Accident Investigation Team.
10. Individual Team Member discussions, visits
or correspondence:
- Deputy Flag Officer Submarine Flotilla.
- Deputy Chief Executive, Naval Recruiting and
Training Agency.
- HMS Illustrious.
- Captain Submarine Flotilla 1.
- HMS Raleigh.
- CO HMS Cardiff.
- CO HMS Cromer.
- CO HMS Dulverton.
- RAF Cottesmore.
- RAF Wittering.
- RAF Marham.
- RAF Wyton.
- Inspectorate of Flight Safety.
- Defence Logistics Organisation.
- Defence Procurement Agency.
- MoD Personnel Director's staff.
11. Consultation with External Authorities:
- Soldiers, Sailors and Airmen Forces Association.
- Naval Personnel and Families Service.
- Army Families Federation.
- RAF Wives Federation.
- MOD Council of Civil Service Unions.
- Hampshire Probation Service.
- Head of Wiltshire Crown Prosecution Service.
- Legal Secretariat to the Law Officers (Attorney
General's office).
- Office of the Judge Advocate General.
- Judge Advocate of the Fleet.
- HH Judge Woollam.
12. Government Departments:
- Home Office.
- Department for Constitutional Affairs.
- Department of Health.
- Department for Trade and Industry.
- Cabinet Office.
- Foreign and Commonwealth Office.
- Scottish Executive.
- Advisory, Conciliation and Arbitration Service.
13. Overseas Governments:
- The Australian, Canadian, Dutch, French, German
and New Zealand Defence Departments responded to a questionnaire.
- Visits were made to the United States and Canada.
- Discussions were held in UK with representatives
from Australia and New Zealand.
Annex B
IMPROVEMENTS TO THE INITIAL TRAINING ENVIRONMENT
1. Following a number of reports on the initial
training regime[34],
the MoD has been engaged in a change programme to improve the
environment in which training is delivered, to reduce the risks
to recruits and trainees and to improve welfare and support to
individuals. The impact of the change programme has resulted in
changes to law, policy, procedure and provision. From the outset
it was declared that change had to become embedded and be enduring
and from 2004, the Adult Learning Inspectorate (ALI) was commissioned
to provide external oversight of initial training through a programme
of inspections. The ALI published its first report 'Safer Training'
in 2005 and a follow up report 'Better Training' in 2007. Using
the information from inspection, Better Training provides observations
and comments on the changes that have been made. Following the
merger of inspectorates, external inspection will continue to
be provided in future through OFSTED.
2. The following examples highlight areas of
key stakeholder interest and involvement connected to the ongoing
initial training environment change programme.
Instructor selection and training
- Instructors are important role models for recruits and trainees,
therefore they need to be carefully selected and trained. Change
programme activity has included the development of a competency
framework against which instructors are trained and developed
and the redesign of training to ensure that they are fully prepared
to fulfil their roles. Led by the Defence Centre of Training Support
(DCTS), changes to the design and delivery of the training were
trialled and the views of instructors were taken into account
prior to role out of the new Train the Trainer course in April
2006. The training provided to instructors is accredited to nationally
recognised qualifications. In order to further safeguard recruits
aged under 18, the MOD consulted the Home Office and Department
for Children's Services and the Family (DCSF). Subsequently a
change in law has resulted in an exceptions amendment to the Rehabilitation
of Offender's Act 1974 to enable those involved in caring for,
training, supervising or being in sole charge of persons aged
under 18 serving in the Armed Forces to undergo Criminal Record
Bureau (CRB) checks. Improvements to the training provided to
instructors and the application of relevant safeguarding principles,
are examples of how the MOD is working to ensure that the interests
of its stakeholders are met.
The views of Recruits and Trainees
- The views of recruits and trainees were sought by the ALI during
inspection as part of the evidence base. The MoD has an internal
team, the Defence Individual Training Capability (DITC) team,
whose role is to evaluate the implementation of policy at all
levels to provide feedback to the Services and policy makers.
DITC has incorporated ALI methodology in seeking the views of
recruits and trainees as an integral part of its evaluation activity.
In addition to focus group interviews all recruits and trainees
have the opportunity to comment on aspects of welfare and training
by participating in the Recruit, Trainee Survey as they pass through
Phase 1 and 2 training establishments. The MORI organisation gathers
and analyses the data independently on behalf of Defence. The
survey provides results to units and training headquarters to
enable them to assess the impact of change, to monitor and analyse
trends and to make improvements.
34 Directorate of Operational Capability Reports on
Initial Training (2003, 2004), House of Commons Defence Committee
(March 2005), Adult Learning Inspectorate: Safer Training (2005),
Better Training (2007). Back
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