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Grand Committee

Tuesday, 11 February 2014.

Defence Reform Bill

Committee (3rd Day)

3.30 pm

Relevant documents: 17th and 21st Reports from the Delegated Powers Committee.

The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD): My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clauses 44 and 45 agreed.

Schedule 6 agreed.

Clause 46: Payments to employers etc of members of reserve forces

Amendment 17A

Moved by Lord Rosser

17A: Clause 46, page 30, line 33, at end insert—

“(5A) Regulations under this section may provide for variation in payment size on the basis of the recipient company, specifically including provision for larger payments to be provided to companies defined as “small” or “medium” under sections 382 and 465 of the Companies Act 2006 or individuals who are self-employed.”

Lord Rosser (Lab): Clause 46 deals with the issue of additional payments to employers of members of the Reserve Forces. This amendment would enable regulations to provide for a variation in the size of the payment made by specifically including provision for larger payments to be provided to small and medium-sized companies.

An Answer to a Parliamentary Question in 2010 revealed that at that time 15% of current TA members came from large organisations employing 500 people or more, 17% came from medium-sized organisations employing between 50 and 499 people, and 17% came from small organisations with between one and 49 employees. Self-employed people made up 5%, with unemployed people, including students, making up 42%, and the mobilised TA making up the remaining 4%.

When the Minister responds, perhaps he could say whether the percentages that I have just quoted are basically the same today, some four years later, in respect of where current TA members come from. If that is the case, are the Government looking to change that breakdown by employment of sources of Reserve Forces recruitment, bearing in mind that one of the key roles of the reserves in future will be to provide key specialist skills needed to support our Regular Forces to a greater extent than today?

I should like to raise a question about reservists who are unemployed—in particular, to ask the Minister how Jobcentre Plus views unemployed potential reservists going off for extended periods, in light of the requirement that they should sign on and apply for jobs on a

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regular basis. Presumably we should be encouraging the unemployed to consider reservist occupations; so the question of how that fits in with the requirement to sign on for benefits is of some importance.

The figures given in the Parliamentary Answer to which I referred indicate the importance of small and medium-sized firms as a source of reservists. The additional payment proposed over and above the current arrangements is, I believe, £500 a month for each month in which a reservist is mobilised. The question is: will that prove to be a sufficient incentive for smaller firms, bearing in mind that the impact on them of one or more of their employees being reservists, and away from the workplace for periods of time, could be greater than for a large firm that has more resources, both human and financial, at its disposal to cover for employees away on Reserve Forces commitments?

I appreciate that we want to draw the attention of employers to the benefits to them of their employees being reservists and the positive impact that this can have on career development, but that may not necessarily be the first point that will strike a small employer when faced with the potential problem of covering for an employee away on reserve duties; there are many small employers in the IT field, which is a skill that we look to reservists to provide. A survey by the Federation of Small Businesses in 2012 suggested that this might be an issue, but I hope the Minister will say whether that is proving to be the case in respect of small and medium-sized firms.

We believe that there is a case for flexibility over the size of the additional payment in relation to small and medium-sized businesses, but we want to hear what the Government’s intentions are on the points I have raised, including how specific or otherwise the regulations relating to these payments are likely to be. I beg to move.

Lord Palmer of Childs Hill (LD): My Lords, I am not happy with this amendment. Having listened to the explanation by the noble Lord, Lord Rosser, I shall explain why. Small and medium-sized enterprises—I was the director of one for many years—are concerned not so much with the money but with replacing the person. The noble Lord, Lord Rosser, touched upon that. I do not think that money is the problem. Giving SMEs a bit more money does not solve the problem that a key person in a very small organisation is not there. The argument for larger payments to smaller companies will only annoy larger companies which are the source of reservists—or territorials, at the moment.

The amendment in the name of the noble Lords, Lord Rosser and Lord Tunnicliffe, also mentions the self-employed. The idea of the self-employed going into the reserves under the new arrangements is that they will receive £500 a month, or whatever it is, to substitute for their self-employed earnings. That is a decision that they would need to make, and I hope they will make it positively; but the self-employed person is not so much worried about the £500 per month substitute for earnings from their customers or their clients as about keeping their customers and their clients while they are away, and money does not solve that.

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I was interested in the comment made by the noble Lord, Lord Rosser, about the unemployed. It was a point that I had not thought about, and I, too, would welcome the Minister’s reply on that point.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con): My Lords, the Bill proposes granting the Secretary of State a power, by regulations, to make payments to the employers of reservists over and above those which may currently be made. The current scheme allows employers to recover costs incurred in covering the work of employees who are mobilised. Those costs may include the hiring of temporary staff or the payment of overtime.

The new power is intended to allow the Secretary of State some flexibility as to the provision to be made in regulations made under it—for example, as to which employers may receive a payment and which Reserve Forces activities trigger entitlement to a payment. However, the current intention is that the regulations will authorise the making of payments only to employers in small and medium-sized enterprises whose reservist employees are mobilised. The Secretary of State will be required to consult various bodies before making the regulations, including the Reserve Forces and cadet associations and a body representing the interests of employers.

I welcome the noble Lord’s desire to recognise that while all employers may feel some impact from the medium or long-term absence of staff, it is small and medium-sized enterprises that are likely to feel the greatest effects. We listened to employers during the Green Paper consultation and seek to reflect this concern in the regulations.

Amendment 17A would allow the regulations to make provision in such a way that the sums payable could vary depending on the size of the employer’s business. In particular, it would allow larger payments to be made to small and medium-sized businesses and to employers who are self-employed. The effect that this amendment seeks to achieve is already achieved by new Section 84A, taken together with the amendments made to Section 85(1) of the Reserve Forces Act 1996. Sections 84A and 85(1) already give the Secretary of State the flexibility to provide in the regulations so that the sums payable vary depending on the size of the employer’s business. The current intention is that the regulations will authorise the making of payments to employers in SMEs only. This is because larger companies are more likely to be able to absorb the costs and disruptions associated with absences from work to undertake Reserve Forces activities.

We have not made provision for the making of payments to the self-employed in respect of their own Reserve Forces activities, as such payments are made in recognition of the impact placed on employers. The self-employed reservist has elected to become a reservist and so accepted the risk of being mobilised themselves. Were we to pay them, we would, in effect, be handing the self-employed reservist a pay rise of up to £500 per month when mobilised. I do not believe that that would be a good use of taxpayers’ money, or would be well received by those reservists who are not self-employed, or by regulars.

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I would like briefly to highlight what current payments we make to both the reservist and their employer when we mobilise a reservist. Reservists are entitled to claim for a “reservist award” and to make an allowable expenses claim. The reservist award consists of a salary top-up—a payment made to reservists whose military salary, when called out for operations, is less than their civilian earnings. Reservists can also claim for benefits in kind—benefits that have been suspended or withdrawn by their employers while the reservist is mobilised. The benefits covered include, but are not limited to, health or medical insurance, life insurance, accommodation, education fees for dependent children and the loss of a company car used by the reservist’s dependants. The resulting payment for all these elements of the reservist’s award, taken together, is subject to an upper limit or cap—less their service pay—of £548 per day, or £822 per day for certain medical officers. When, in connection with their mobilised service, a reservist chooses to remain in his occupational pension scheme and continues to make his employee pension payments, any contributions withdrawn by his employer will be paid by the MoD.

The allowable expenses claim consists of additional payments for the care of a dependent child or relative, additional expenses for the care of a pet, additional home insurance premiums and payments for the essential maintenance of the reservist’s main residence and garden for security purposes to ensure that the property looks lived-in. The resulting allowable expenses claim is without limit, but is subject to providing clear documentation of claims.

Employers are entitled to claim certain costs related to the mobilisation of an employee. The “employer’s award” consists of up to £110 per day—in other words, approximately £40,000 per year—which is the amount by which the following “replacement costs” incurred by the employer exceed the reservist’s earnings. These replacement costs are limited to pay for, if appropriate, the replacement of the reservist, and, if relevant, any overtime payments to existing employees and an increase in salary for an existing employee, as well as certain non-recurring or one-off agency fees and advertising costs—VAT exclusive only, where the employer’s business is registered for VAT purposes. An employer may claim the cost of retraining a reservist on return to work, where needed, for the reservist’s re-employment. There is no provision for additional administration costs and the extra costs of training an external replacement for the reservist or, indeed, one of his colleagues now doing his work. The capped amount—that is, £110 per day—is intended to represent the quantifiable extra costs, above the reservist’s normal pay, of employing a temporary replacement. The employer is not, of course, paying the reservist during their mobilisation.

Depending on their personal circumstances, a self-employed reservist may claim under SI 2005/859 as a reservist, as an employer, or both. However, such a reservist cannot make a claim for an award to recover the same cost as a part of the reservist’s or employer’s award.

We recognise the importance of reserve service and have sought to address the financial issues for both reservists and employers that mobilisation brings. In

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relation to the power to make further payments that we are bringing in with Clause 46, I can assure noble Lords that we will keep the payments under review and, if we need to make alterations and adjustments in future, we will have the flexibility to do so.

I am grateful to my noble friend Lord Palmer for his support, and I very much agree with the points that he made. I will try to answer his question along with the answer I will give to the noble Lord, Lord Rosser.

The noble Lord asked whether percentages were still the same, and broadly the answer is yes. He asked about the Jobcentre view of reservist training; it is provided for and is counted as being available for work. He asked whether financial assistance at £500 would be enough for small businesses. The Federation of Small Businesses said that it was more than it expected. It is always a judgment and if we need to be flexible, we can be.

3.45 pm

The noble Lord asked how specific the legislation was in relation to small and medium-sized businesses and financial assistance. The primary legislation allows us to be flexible; the intent is to focus on small and medium-sized enterprises, but we can be flexible if needed in future. He asked, too, about the loss of the person or the business. There is a process whereby employers can defer the call up of their employee if their business will be badly affected. We offer financial support to employers during mobilisation to cover things such as recruitment of temporary staff and overtime for remaining staff. I hope that that answers his questions. I ask him to withdraw his amendment.

Lord Rosser: Before I withdraw my amendment, can I clarify what I think has been said? We are talking about the additional payments to the employer, over and above what has already been paid—and I thank the Minister for setting out what the current arrangements are. On the additional payment, which is one of £500 a month for each month that a reservist is mobilised, can I confirm that the intention is that that will be paid only to small and medium-sized businesses? I think that he then said that there would be flexibility over the level of the payment. Does that flexibility mean that it could exceed that £500?

Lord Astor of Hever: The answer to the noble Lord’s first question is definitely yes—it is just for the SMEs. I shall need to get back to the noble Lord on the second question.

Lord Rosser: I thank the Minister for his reply and the noble Lord, Lord Palmer of Childs Hill, for his contribution. I am grateful to the Minister for setting out on the record what the current situation is and what the Government’s intentions are as regards this additional payment. In the light of the reply, I beg leave to withdraw the amendment.

Amendment 17A withdrawn.

Clause 46 agreed.

Schedule 7 agreed.

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Amendment 18

Moved by Lord Astor of Hever

18: Before Clause 47, insert the following new Clause—

“Report on volunteer reserve forces

In Part 11 of the Reserve Forces Act 1996 (reserve associations), after section 113 insert—

“113A Duty to prepare report on volunteer reserve forces

(1) An association must prepare an annual report on the state of the volunteer reserve forces so far as concerns the area for which the association is established.

(2) A report on the state of the volunteer reserve forces is a report that sets out the association’s assessment of the capabilities of the volunteer reserve forces, having regard to the duties that may be imposed on members of those forces by or under this Act or any other enactment.

(3) The assessment referred to in subsection (2) must, in particular, include the association’s views on the effect of each of the following matters on the capabilities of the volunteer reserve forces—

(a) the recruiting of members for the volunteer reserve forces;

(b) the retention of members of those forces;

(c) the provision of training for those forces;

(d) the upkeep of land and buildings for whose management and maintenance the association is responsible.

(4) A report under subsection (1) must also set out the association’s assessment of the provision that is made as regards the mental welfare of members and former members of the volunteer reserve forces.

(5) An association must send a report under subsection (1) to the Secretary of State—

(a) in the case of the first report, before the first anniversary of the day on which the last Future Reserves 2020 report prepared before the coming into force of this section was presented to the Secretary of State, and

(b) in the case of subsequent reports, before the anniversary of the day on which the first report was laid before Parliament under subsection (6).

(6) On receiving a report under subsection (1), the Secretary of State must lay a copy of it before Parliament.

(7) The duties under this section may, instead of being performed by an association, be performed by a joint committee appointed under section 116 by two or more associations in relation to their combined areas.

(8) Where by virtue of subsection (7) a joint committee has the duty to prepare a report—

(a) references in subsections (1) to (5) to an association are to be read as if they were to the joint committee, and

(b) section 117(1)(a) (power to regulate manner in which functions are exercised) has effect as if the reference to associations were to the joint committee.

(9) In subsection (5)(a), “Future Reserves 2020 report” means a report prepared by the External Scrutiny Group on the Future Reserves 2020 programme.””

Lord Astor of Hever: My Lords, during consideration of this Bill in the House of Commons, the Secretary of State made a commitment to introduce in this House a government amendment on Reserve Forces that would reflect an amendment tabled by Julian Brazier and 37 other Members of Parliament. Amendment 18 is that amendment, inserting a new clause into the Bill. It amends the Reserve Forces Act 1996 to place reserve associations, also known as Reserve Forces and cadets associations, under a statutory duty to report annually

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to the Secretary of State for Defence on the state of the volunteer Reserve Forces. The new clause requires the Secretary of State to lay a copy of any such report before Parliament.

Reserve associations are community-facing organisations which provide an essential bridge between our Armed Forces and the civilian population. An association exists for each of 13 administrative areas of the United Kingdom. They provide advice and support on behalf of our volunteer Reserve Forces and cadets, work with the chains of command of the Royal Navy, the Army and the Royal Air Force and establish and maintain links with the community.

The new clause recognises the importance of the receipt of independent reports from reserve associations to ensure programme success in growing and revitalising the Reserve Forces. The reporting requirement that the new clause introduces is working with the grain of what the Government are already doing. It is based on the existing non-statutory arrangement under which a scrutiny group, appointed by the Council of Reserve Forces’ and Cadets’ Associations, reports annually on the Future Reserves 2020 programme and overall health of the Reserve Forces.

Under our plans for the whole force concept, the reserves will become an integral part of our future force structure, charged with delivering vital capability for the Armed Forces and providing resilience and reinforcement. However, we must not forget the unique and distinct nature of our reserves. They are civilians who have also elected to serve their country in uniform. That tens of thousands have volunteered to serve their country as a reservist, with some 25,000 serving in Iraq and Afghanistan in recent years, is humbling, but also a true reminder of the volunteer and community ethos across this nation, something of which we can be very proud.

In revitalising the Reserve Forces, we have been careful to recognise, and put in place measures to address, the extra challenges that reservists face in balancing their military service with their civilian employment and, in many cases, family responsibilities. That is why, when the Government undertook to revitalise the Reserve Forces through the Future Reserves 2020 programme, we focused on measures to make reserve service more attractive to reservists and their employers and put in place support measures for the reservist and their families.

The performance of defence as a whole is already subject to considerable external scrutiny, be that by the National Audit Office or the House of Commons Defence Committee—and, of course, by the many MPs and noble Lords with considerable defence interests and experience. All have shown themselves to be very proficient at examining the performance of defence in its entirety and on specific issues, programmes or projects.

I should also point out that the Ministry of Defence already provides a considerable amount of information of its own volition. The quarterly personnel report published in November 2013 gave the numbers of trained and untrained reservists and movements into and out of the reserve population. The next publication

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is scheduled for 13 February. On 19 December last year, the Secretary of State also published the indicative target figures for the future growth of the reserves in order to reach the identified trained strength target.

However, as I have made clear, the reserves are unique and, because of that, and the importance of the Future Reserves 2020 programme success, it is right that we should put in place a system for independent scrutiny of the state of the reserves as a specific entity. The new section which this new clause seeks to insert into the Reserve Forces Act 1996 requires an annual report to set out an assessment of the capabilities of the volunteer Reserve Forces, having regard to the duties that may be imposed on members of those forces, which include mobilised service under a call-out order.

Reports must, in particular, cover the effect of the following four matters on the capabilities of the volunteer Reserve Forces: first, the recruiting of members for the volunteer Reserve Forces; secondly, the retention of members of those forces; thirdly, the provision of training for those forces; and, fourthly, the upkeep of land and buildings for whose management and maintenance the reserve associations are responsible. Reports must also contain an assessment of the provision that is made as regards the mental welfare of members and former members of the volunteer Reserve Forces. This follows a further commitment made by the Secretary of State in the House of Commons.

This brings me neatly to Amendment 18C. The Government are absolutely committed to improving the mental health of serving and former members of both the Regular Forces and Reserve Forces. Noble Lords will be aware that my colleague, Dr Andrew Murrison, carried out a review of mental health provision within the Armed Forces. We have worked closely with the UK Department of Health, the NHS and third sector organisations to implement the recommendations from his Fighting Fit report. This has been backed by £7.4 million of government money.

Defence is already very open about the mental health of the Armed Forces population and the provisions we make to address issues. A great deal of this information is already published in the public domain. This includes the covenant annual report, which contains a specific healthcare chapter, and official defence statistics, such as those pertaining to the Veterans and Reserves Mental Health Programme. Defence is of course also engaged with and supports ongoing independent research programmes in the health arena, which are publicly available. For example, the King’s Centre for Military Health Research has been commissioned to undertake a further phase of its longitudinal cohort study, which includes reservists.

The Secretary of State made a commitment to bring forward an amendment in this House to require reserve associations to report annually on the state of the Reserve Forces. Recognising the importance of the issue of mental health, he undertook to include mental welfare provision in the list of matters that those annual reports must cover. Amendment 18 makes provision for this. Accordingly, I do not believe that subsection (1) of the new clause proposed in Amendment 18C is necessary.

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In terms of annual spend on mental health provision for serving and former members of the Reserve Forces, it would not be practicable to produce meaningful financial data. In part, this is because it would be difficult to separate this cost from the cost of provision for regulars. Also, much of the provision for serving and former reservists is provided by the NHS at the local level, and extracting these financial data would be a real problem.

With regard to medical records, once demobilised, it is a long-established tradition that Reserve Forces’ medical care becomes the responsibility of their local NHS services, and the majority of their physical and mental health needs are met by this provision.

On the specifics of the current process for those leaving the Armed Forces or the Reserve Forces, when registering with their GP the veteran’s NHS record will be sent to the GP with a letter included in it that will inform the GP that they have been under the care of the Defence Medical Services and detailing how the GP can get the full record. Work is being carried out to further develop our systems in the future to allow for a summary of in-service care to be included with the NHS record when it is sent to the civilian GP. These proposed modifications will in future ensure that the NHS GP knows that they are dealing with a veteran and that the veteran is automatically given a copy of the full Defence Medical Services medical history if they decide that they require it.

As well as engaging with reservists, we have worked with the Department of Health to provide an electronic training package for GPs. This will help GPs to be more familiar with both the Reserve Forces’ and veterans’ community, and allow them to better recognise and monitor the needs of their patients.

In addition, current and former members of the Reserve Forces are entitled to attend the Veterans and Reserves Mental Health Programme. That programme is open to any current or former member of the UK volunteer reserve and regular reserve who has been demobilised since 1 January 2003 following an overseas operational deployment as a reservist and who believes that the deployment may have adversely affected their mental health. Under the programme, we liaise with the individual’s GP and offer a mental health assessment. If diagnosed to have a combat-related mental health condition, we then offer out-patient treatment via one of the MoD’s departments of community mental health. If more acute cases present themselves, the Defence Medical Services will assist access to NHS in-patient treatment.

Therefore, I believe that we are taking mental health seriously. We are working with reservists, former reservists, the medical community and other interested parties to ensure that everything that should be done is being done. However, I of course will welcome the view of the Reserve Forces and cadets associations as they report in due course on this issue.

I turn to Amendment 18F, the last amendment in this group, which seeks a report on the cost-effectiveness and viability of the Future Reserves 2020 programme. I would like to remind the Committee why we are making these changes. There are two strands to why we are doing this.

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4 pm

The first strand is financial. Defence has a fixed resource envelope and it is essential that we deliver the maximum capability from that resource envelope. It is true that when deployed on operations, reserves can in some cases be more expensive than Regular Forces. However, when held as a contingency reserves are significantly cheaper: about one-fifth of the cost. We pay for the whole cost of a regular whether they are deployed on operations or not. As the Chief of the Defence Staff commented recently:

“There simply is no appropriate allocation of the current defence budget that could protect or sustain a larger regular Army and still realise the sort of Armed Forces that we need for the security challenges of the future … But a healthy and vibrant Reserve does give you cost-effective resilience for enduring operations. And it offers … access to a range of skills that defence struggles to sustain within its regular structure”.

Retaining capabilities that we no longer require in such numbers or readiness adds cost to defence, as does retaining full-time personnel in roles more suitable for reservists.

The £1.8 billion budget for the Future Reserves programme is the planned spend over the life of the programme, to financial year 2021-22, and includes funding for such items as additional recruiting, training and spending on infrastructure and new equipment. It also includes provision for paid leave and pension entitlements from 2015 for reservists. Across financial years 2012-13 and 2013-14, we have so far spent about 10% of the additional allocation. This money is over and above the core funding that the single services already hold for their reserve elements.

That brings me to the second argument: that what we are doing is about capability and getting the greatest effect from the available budget. The nature of warfare is always evolving and defence must evolve to meet those threats as determined by the national security strategy. The strategic defence and security report then sets out how best to allocate defence’s resources and capabilities to deal with the threats that we face. We are drawing down in capability areas where the SDSR process demonstrated that we no longer need regulars in such numbers, such as heavy armour and artillery, and investing in new capability areas such as cyber. In September, the Secretary of State announced the creation of a cyber reserve unit. This is about not simply replacing the regulars with the reserves but reconfiguring our Armed Forces for the threats that they will have to meet on our behalf.

Under the changes, the reserves will help us to draw from some advanced skills that are better honed and maintained in partnership with the civil sector, such as medical or cyber skills. The benefits to defence from medical reservists are obvious: we utilise those skills and capabilities when we need to—on operations—but when not on operations that medic is employed in the NHS, building and maintaining their medical skills. The NHS also gains by having staff who have worked in world-class trauma hospitals such as that at Camp Bastion, where 97% of those who enter for treatment come out alive, and where cutting-edge and life-saving techniques from the battlefield are now brought back for use in NHS hospitals. The changes we are making will deliver the most defence capability for the money

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we have available. We could debate for hours whether defence should be subjected to the finance cuts to which it is subject, but the fact is that it is and defence will have to play its part in helping reduce the deficit.

In terms of the viability of the plan, we have always said that growing the Reserve Forces to 35,000 by 2018 would be challenging but achievable. That is why the White Paper we published earlier this year set out our plans to reverse the long-term decline of the reserves, redefining their role and setting out details of improved equipment, training, terms and conditions.

I do not want to rehearse for too long the issues around recruitment as we will come to these in the next group. I acknowledge that there have been problems with the IT support systems for the recruiting campaigns for the Regular Army and Army Reserve. The issue of delays in the recruiting process has the highest level of attention, both ministerial and military, and measures are being put in place to address this.

The latest quarterly figures released on 14 November showed the Army Reserve trained strength numbers had decreased in the last year by 130, which is a drop of 0.6%. While we would all like to see increases, rather than decreases, I do not believe a drop of 0.6% is a calamity. It was only in mid-September that the Army launched a new recruitment campaign based on the new reserve proposition and the latest marketing campaign began in early January. To date, the campaigns have generated increased expressions of interest and applications to join the reserves, but any intake from this campaign would not be reflected in November’s quarterly personnel report publication. Indeed, the next quarter’s publication, due this week, will not reflect the marketing campaign that began in January.

We are just over six months into a five-year programme to revitalise the reserves. This is Future Reserves 2020, not Future Reserves 2014. The Secretary of State and the Chief of the Defence Staff remain confident that we will meet our target. The increase to 35,000 reservists is not breaking entirely new ground. In the 1980s, the Territorial Army was 75,000 strong, recruited from a smaller population. Our main allies rely more heavily on reserves than we do. Reserves are around 17% of our total Armed Forces, which are scheduled to rise to some 20% under our proposals. This compares to 36% in Australia, 51% in Canada and 55% in the United States.

In terms of overall numbers, there will be a delta where we have fewer forces in the period between 2015 and 2017 than we will from 2018 onwards, but that is by design. Also, it is set against a revised defence planning assumption for what we are going to be doing with our forces, particularly in terms of the potential for enduring operations, in the period immediately after we come out of Afghanistan and finish combat operation there at the end of next year.

Lord Robertson of Port Ellen (Lab): The end of next year?

Lord Astor of Hever: I shall read that again. I refer to the period immediately after we come out of Afghanistan and finish combat operation there at the

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end of this year. So this is all absolutely in accordance with a strategic design that flows through the National Security Strategy.

We would all agree, I am sure, that this programme should be subject to proper and effective scrutiny. We have put forward a government amendment to do precisely that, with a report put to Parliament where it will be for the business managers to decide in the normal way what to do with that report. Leaving that report aside, the performance of defence as a whole is already subject to considerable external scrutiny, be that the National Audit Office, the House of Commons Defence Committee, or in defence Questions from MPs or Peers. Furthermore, as the Secretary of State said during an evidence session with the Defence Committee on 5 November, the strategic defence and security review 2015,

“will certainly want to look at the Future Force 2020 construct and decide whether it needs to evolve further to 2025 in response to a changing environment”.

The next strategic defence and security review will take place at a time when the programme has had some time to develop and demonstrate maturity.

Lord Robertson of Port Ellen: The Minister mentions the SDSR of 2015. That is presumably ongoing at the moment as 2015 is, after all, next year. What consultations has the department had with the various stakeholders in defence, such as Her Majesty’s Opposition, the trade unions, the press, the diplomatic corps, the think tanks and the academics who will be involved? Is there any outside involvement whatever in achieving a degree of consensus on what will be published around the time of the next general election?

Lord Astor of Hever: My Lords, I will try to answer the noble Lord’s question when I respond to other noble Lords’ questions. I repeat that the next SDSR, which will take place at a time when the programme has had some time to develop and demonstrate maturity, would be the right time to scrutinise the force structure and whether it needs to adapt to reflect new threats, opportunities or other such variables. I beg to move.

Lord Rosser: One of the joys of having amendments in a group where the Government have the first amendment is that you get the Government’s response before being able to explain the reasons for your own amendments. However, I would not wish the Minister to take that in any way as a criticism because we are always extremely grateful for the thoroughness with which he replies to amendments and for the extent of the information he provides to us. I will be as interested as my noble friend Lord Robertson of Port Ellen in the answer to the question he raised about the amount of discussion that is or is not currently going on in relation to the SDSR due in 2015.

Government Amendment 18 and my Amendments 18C and 18F have one thing in common; namely, they all provide for reports of one form or another. The Minister has explained the thinking behind the Government’s amendment, which, as he said, has arisen from a commitment given when the Bill was being considered in the other place. We have no issues

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with the Government’s Amendment 18. Our Amendment 18C calls on the Secretary of State to publish annually an analysis of the mental health provision for members and former members of the Reserve Forces and to report on the annual spend on such services. On that latter point, I note that the Minister said, in effect—I appreciate these were not his exact words—that this information could not be provided.

The amendment also makes provision for the transfer of medical records belonging to former members of the Reserve Forces to the National Health Service and for the monitoring of the health needs of former members of the Reserve Forces. Without such an arrangement working effectively, there is a distinct possibility of reservists going to their GP and their full medical history not being available. I appreciate what the Minister has already said in that context, but the reason for putting down the amendment with this requirement is because of claims that this is not what happens on occasions.

Mental health provision is, if anything, even more of an issue for reservists than for members of our Regular Forces as reservists after deployment go back into the civilian world rather than back to their units and can undoubtedly feel isolated on occasion. Hence the importance of the Ministry of Defence and the National Health Service knowing where reservists can be contacted and ensuring that they get the support they need.

A study published in 2012 showed a significantly higher rate of common mental health disorders and post-traumatic stress disorder among reservists, with the incidence of other types of mental illness being greater than that of PTSD, as it also is for regulars. The study also drew attention to the fact that reservists have much more difficulty with post-deployment social functioning and that such difficulties appear important not only to mental health but to fitting back into the family.

In future, we will be expecting a greater and different kind of commitment from our reserves and we need to ensure more than ever that the advances we have made with the Regular Forces with regard to mental illness, to which the Minister has already referred, are also achieved for our Reserve Forces. Government Amendment 18 provides for the annual report from reserve associations to include that association’s assessment of the provision that is made regarding the mental welfare of members and former members of the volunteer Reserve Forces but, apart from the issue of the extent to which reserve associations would be qualified to make such a full assessment, the Government’s amendment does not lay any requirement on the Secretary of State to make such an assessment or to address the issue of the transfer of medical records.


We believe it is important that there is such a requirement on the Secretary of State as well, particularly in relation to making the assessment. Making the provision set out in Amendment 18C and putting it in the Bill would help to ensure that mental health provision for members and former members of the Reserve Forces was regarded with the importance that it deserves.

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4.15 pm

Amendment 18F provides for the Secretary of State, within one year of enactment, to lay before Parliament a report on the viability and cost-effectiveness of the plans set out in the Reserves in the Future Force 2020 paper, together with his recommendation on its further implementation. The Government’s Amendment 18 provides for an annual report on volunteer Reserve Forces to be prepared by reserve associations, and there is a requirement for the Secretary of State to lay a copy of each report before Parliament. However, these reports, welcome though they are, will not address the issue of viability and cost-effectiveness referred to in Amendment 18F, nor will they be assessed by the Secretary of State or contain his recommendation on further implementation, as provided for in Amendment 18F.

We should not proceed with the implementation of the Reserves in the Future Force 2020 plans without any requirement within a short period of time for the Secretary of State to report to Parliament on the key issues of viability and cost-effectiveness—issues to which the Secretary of State normally attaches considerable importance— particularly bearing in mind the greatly enhanced role that our reserves will have in the future under these plans and the extent to which our Regular Forces will be dependent on the reserves for the provision of key support skills.

Lord Dannatt (CB): My Lords, I generally support the intention behind Amendments 18 and 18C but I draw attention to two underlying concerns that I have with regard to the overall policy that the amendments refer to.

The noble Lord, Lord Astor, in proposing Amendment 18, made reference to the fact that the Reserve Forces of the future will look very different from the Reserve Forces of the past, and that, by design, is absolutely right. However, we have to remember why we have deployed so many members of the Reserve Forces over the past 10 years. Following the defence review of 1997-98 led by the noble Lord, Lord Robertson of Port Ellen, a certain amount of work was allocated to the Army, Navy and Air Force. In the case of our land forces, we would be involved in one medium-scale ongoing operation and another medium-scale operation of six months’ duration. As we all know perfectly well, from 2003 to the present date, and particularly in that very intense period from about 2006 to 2009, we were committed to two considerable-sized—I do not use the words “large” or “medium” because the definition does not fit either—operations in Iraq and Afghanistan concurrently, well over and above the planning assumptions that were put in place in the defence review of 1997-98. Therefore, it was inevitable that we were going to have to draw heavily on our Reserve Forces in order just to be able to do what we were going to do. It was not by design; it was by consequence.

Now, in the consequences of the 2010 SDSR, we have decided to reduce significantly—and I speak particularly in terms of the land forces—the size of our Regular Army, and we are going to compensate for that loss of capability by having a large reserve training force. I understand that, and in theory I could see it working, but I have two concerns.

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First—I have to choose my words carefully because I do not want to appear more critical than I intend—I challenge the transparency and perhaps honesty of some aspects of that policy. What the Ministry of Defence has done in its very constrained cash situation is effectively to move off balance sheet some of the liability of our land forces and put them back in the Treasury. We will deploy large numbers of these Reserve Forces only in a future considerable-sized operation such as that of Iraq or Afghanistan of the past 10 years. It is when we deploy those large numbers of reservists that they have to be paid for. They are not going to be paid for by the Ministry of Defence because they will come from the contingency fund held by the Treasury. So the Ministry of Defence has solved a large chunk of its problem but has not necessarily solved our national problem. I merely raise question marks about whether we are being completely transparent about its shift in policy.

My second concern, which we have already alluded to today, is to do with the provision of mental health support. We know that reservists when demobilised are in a more difficult situation than regulars when they return from operations—the facts prove that—and therefore we are taking measures to alleviate the potential situation that some of the demobilised reservists will find themselves in. I question the fundamental morality of taking a policy decision that we will use more reservists on difficult deployed operations knowing that it will place them in an adverse mental health position. I wonder whether that is right. I raise those two points as underlying concerns, albeit these amendments, at least in part, speak to them.

My third and final point, which has been mentioned already today by the noble Lord, Lord Astor, is that we know we will have a gap between 2015 and 2017-18, the regulars having been reduced and our not being able, according to current plans, to increase the number of reservists. As recently as 2011 it was still government policy that we would not reduce the Regular Forces until we had built up the reservists. We have changed that policy and so we are accepting risk. That risk could be reduced by slowing down the rundown of the Regular Forces at the moment, but I presume that the Government would say that, looking beyond Afghanistan, from the end of this year onwards they cannot see the prospect of another major operation and so it is a risk worth carrying.

Many noble Lords have mentioned the issue of risk in the past and I simply point to this as another risk that we are taking. We have Armed Forces that are less capable than they were and, certainly in terms of our land forces, they are smaller than they were, and we are willingly taking on additional risk. I raise those three points as concerns about the underlying policy, although I agree that Amendment 18C attends, at least in part, to the mental health issue.

Baroness Garden of Frognal (LD): My Lords, we, too, welcome the Minister’s Amendment 18. As he said, there was broad support for this when it was debated in the House of Commons. It is therefore appreciated that the Government have brought forward this amendment and accepted the principle of the new clause to be agreed in this House.

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Amendment 18F calls for a report within one year of enactment. Its wording is too restrictive to reflect accurately issues as they may arise around viability and cost-effectiveness and we would not wish to support that proposed clause.

Providing an annual report to the Secretary of State, which must also be laid before Parliament, provides reassurance that the position will be kept under review for all three services. We have quite naturally concentrated more on the Army than the Royal Navy and the Royal Air Force, partly because of the numbers involved and partly because the Reserves are integrated already, in a different way, with the Royal Air Force. Obviously within the annual report it will be helpful to identify where there are differences between the three services and to identify examples of best practice which might cross-refer between them.

As the noble Lord, Lord Dannatt, said in his remarks about mental health, there is a general agreement that this is an important issue. We agree with the Minister that this is covered within Amendment 18 and we do not see the need for additional medical detail, particularly in the Bill. There may well be a case for having guidance which sets this out more clearly, but not in the Bill.

It is timely that today sees the publication of the Veterans’ Transition Review of the noble Lord, Lord Ashcroft. Almost certainly within that there will be recommendations which will help to influence the response to or implementation of what is happening to the reserves under this Bill. Will there be a government response to that review? It would be helpful to have a debate on it in the light of the recommendations of the noble Lord, Lord Ashcroft.

In summary, we support Amendment 18, and while seeing value in the proposed two new clauses of the noble Lord, Lord Rosser, we do not see them as essential to the Bill.

Lord Robertson of Port Ellen: I would like to say a few words in relation to some of the more general issues concerned here. I return to the question I asked about SDSR 2015 because it concerns me that we might be going through exactly the same kind of exercise as we did for the SDSR that was done previously in six months. I do not want to draw any comparisons with the one that I supervised in 1998; it lasted a lot longer than it should have. It still managed to do so but it was affected by the circumstances which came after it, as the noble Lord, Lord Dannatt, said. However, it did not become outdated as quickly as the SDSR that the new Government brought in, which quickly came face to face with the reality of Libya after it was put in place. It focused on 2020 but was then faced with the situation in Libya as well.

Importantly, the defence review that we did in 1998 established a consensus. Perhaps for the first time in military history, the review was accepted by all the defence chiefs both in public, as one might have expected, and in private because it represented a view that was consensual. After the new Government came into place, we embarked upon a consultation exercise that made sure that all the stakeholders had an opportunity to express a view. The Ministers, Robin Cook and

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myself, and the Permanent Secretaries in the Ministry of Defence, the Foreign and Commonwealth Office and the Department for International Development did a roadshow that went round the country, and which also embraced pretty much every stakeholder in the business. When it came out, it was therefore a genuine security and defence review.

The failure of the last SDSR was, essentially, that it was a Treasury-led exercise, done far too quickly and involving far too few elements. I fear that that is precisely what is happening at this stage. I have consulted the Opposition to see whether anybody has bothered to ask them about the initial preparation or any of the discussions taking place at present, and the shadow Defence Secretary assures me that no such approaches have been made. We look as though we are again getting ourselves into the trap of something being prepared at or around the next election campaign, which will essentially be based on a Treasury view about what the country can afford and how the rest of it fits into that.

Lord Davies of Stamford (Lab):My noble friend is saying some important things but does he agree that if the Government are serious about producing or drafting an SDSR, they ought at an early stage to be consulting not merely with the list of people who he quite rightly set out—the academics, think tanks and other stakeholders in this country—but with our allies, particularly the United States and our EU allies? If they do not consult them, the review that comes out may be inconsistent with the strategic intentions and plans of our key allies. Opportunities for fruitful collaboration or for the division of labour will be lost and it may well be that unfortunate misunderstandings will be sown.

Lord Robertson of Port Ellen: Indeed, my noble friend makes an extremely good point. In many ways, it goes without saying. It may well be that there are some discussions going on with our allies and inside NATO about it. I would hope so, although I am a bit pessimistic about most of these things since it becomes opaque. Part of the dispiriting nature of the way in which the British political system works is that you go from everything to zero quickly, as my noble friend will know only too well from being in government. In government, you know everything and then when you are in opposition you are allowed access to pretty much nothing at all. Therefore, having been Secretary-General of NATO and knowing everything that was going on inside that organisation, it was a grim experience to then dredge the newspapers and the occasional website to try to find out what was actually going on. The point that is being made is that the widest possible consultation is required, so that, at the end of the day, the review is fixed, has traction and makes sense in the light of the international circumstances as well as of domestic public opinion. Without that, it will fall apart, and fall apart quite quickly.

4.30 pm

I come on to the issue of the reserves. During my time in NATO, I spent an unhealthy amount of time lecturing some of our allies on depending on reserve forces—in particular those countries that depend on

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conscripts. Gradually, over the years, they got the message. For example, the last three Defence Ministers in Germany have stopped responding to the preaching from NATO about the uselessness of their conscript forces, and have actually done something about professionalising their Armed Forces. There is something profoundly wrong with a situation where, of the some 2.5 million people in uniform in European Armed Forces, only 2%, at the moment, can be deployed outside of national boundaries. In both Iraq and in Afghanistan, we found the limitations that that places upon our Armed Forces. In many ways, the problem that we are faced with today and the reliance that we have on existing Reserve Forces, is that reserves are particularly unsuited for some combat situations. We have used them only in emergency or in desperation—whereas the conscript forces of some of the countries still inside NATO cannot be deployed at all, and are not even very good at back-filling.

I finish on the point that the noble Baroness, Lady Garden, made about the Ashcroft review. I had a brief look at the e-mail from the noble Lord, Lord Ashcroft, but I am confident that he, as a former vice-chairman of the Conservative Party, has given an advance copy to the Ministry of Defence and that the Minister will be able to comment on some of the recommendations that the noble Lord has made in today’s report.

Lord Astor of Hever: My Lords, first, the noble Lord, Lord Robertson, asked in some detail about the next SDSR. I assure him that there is a lot of activity in the Ministry of Defence on this subject. I will write to him about this in some detail. The noble Lord has a great deal of experience and wisdom on this subject, and my door in the Ministry of Defence is always open to him. He has met the Secretary of State in the past and I am happy to facilitate further meetings for the noble Lord to pass on his wisdom at any time.

Secondly, the noble Lord asked me if this is a Treasury-led exercise. We do consult other departments and external shareholders, but we must be aware of the resources available. We have seen the result of not doing so in the past. In support of the Cabinet-led process, the MoD is undertaking a well defined programme of research and activity to understand the future strategic content, examine policy options and test the continued validity of Future Force 2020.

The noble Lord, Lord Davies, asked about our allies. I, as well as other Minsters and senior officials in the MoD, constantly meet our allies. I have absolutely no doubt that they are feeding their requirements and wishes into the SDSR, as they did with the last one and, I am sure, with the one that the noble Lord mentioned earlier.

The noble Lord, Lord Dannatt, was concerned about the reserves. It is not true that we are planning to use more reserves than in the past. As I said, we are trying to build up our niche skill supply of cyber and medics. The reserves will not be less capable; they will be better equipped, trained and paid, with pensions, and be given the same equipment as the regulars. I am trying to organise a day out for noble Lords who are interested in this subject to a reserve unit close to London that is paired with a regular unit. Noble

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Lords and noble and gallant Lords will be able to talk with the reserves and the regulars over any concerns. However, all the reserve officers and soldiers to whom I have spoken recently are very happy with the equipment that they are getting.

The noble Lord, Lord Rosser, was concerned about veterans once they leave the services. Work is being carried out further to develop our systems to allow for a summary of in-service care to be included with the NHS record when it is sent to a civilian GP. These proposed modifications will ensure that an NHS GP will know that they are dealing with a veteran and automatically give them a copy of the full Defence Medical Services medical history if they decide that they need it.

The noble Lord asked about cost and viability. This is a tier 1 programme that will be subject to the usual scrutiny by Her Majesty’s Treasury on cost. Parliament has the ability to scrutinise the issues and has done so, but this has been a military-led programme that is six months old. We should seek to implement the plan and support the reserves, not seek to unpick this.

The noble Lord, Lord Dannatt, asked whether payment for a large number of reserves was transparent. We have been clear that we are reducing the regulars and investing in the reserves. It is true that large-scale use of the reserves could fall to the Treasury reserve; the noble Lord is correct on that. He asked whether there was a draw-down gap. It is a risk, but a manageable one. We cannot retain the Regular Forces on the scale of today on the existing budget. We have to make the best use of our resources, and the reserves allow us to do that.

Is it morally right to place reserves in greater front- line roles? The reserves have served with distinction— 25,000 have been on recent operations. They themselves certainly want a greater role. We recognise a slight increase in PTSD in the reserves, which is why we have put in place the measures that I outlined earlier.

The noble Lord, Lord Robertson, asked about the veterans’ review by my noble friend Lord Ashcroft, which I understand was announced this morning. Just as I was leaving my office in the Ministry of Defence, I received a copy and have not had a chance to look at it but will write in detail to the noble Lord about it.

Finally, he asked about the role of the reserves and our reliance on them. Reserves will have a range of roles in supporting the regulars in high-intensity conflict, leading low-intensity operations—for instance, Cyprus peacekeeping—and providing capability that we cannot retain in the regulars, including cyber and medical. This is not a like-for-like replacement of regulars with reserves. Also, as the noble Lord will know from his NATO days, the United States relies far more heavily on reserves than we do, yet the US is the most capable of NATO members.

In conclusion, I must resist Amendments 18C and 18F on the basis that what they are intended to achieve is covered by Amendment 18.

Amendment 18 agreed.

Debate on whether Clause 47 should stand part of the Bill.

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Lord Davies of Stamford (Lab): My Lords, the Minister made a full and comprehensive speech under Amendment 18. It was a very good speech and set off a kind of Second Reading debate, which was quite interesting. I broadly agree with him. As he knows, I utterly deprecate the reduction in our Regular Forces and our equipment capability, which this Government have brought in, but it is even more vital in that light that we make a success of our campaign to recruit more reservists and to train and equip them properly. Nobody on this side of the House in any way disagrees with the Government in that respect or does not want to do everything possible to make sure that that effort is a success.

However, I want to make one comment. There is a lack of clarity and frankness still about how we are planning to deploy our reserves under the new system. I am very glad that the Minister did not say, although I have heard it—and, evidently, from his speech the noble Lord, Lord Dannatt, has also heard—from government Ministers in the past few years that, “We’re reducing the regulars but we’re compensating by increasing the reserves”. That would be utterly irresponsible. There is no doubt at all that in certain areas such as those the Minister mentioned, including medics and signals experts, reservists may well play the majority part in future combat operations. But when it comes to the infantry it is extremely difficult—with the best will in the world and with motivation and discipline and morale being entirely equivalent, which is the most that one can hope for—to train up reservists to exactly the same level of confidence and alertness that the regulars have. It is therefore very difficult to avoid feeling that, if you deploy large numbers of reservists on combat operations, you will not have a higher casualty rate, which would be very irresponsible.

We have successfully deployed on an embedded basis individuals who have been chosen for that in Iraq and Iran, with front-line troops going on patrol and so forth and fighting intensive warfare. The Government need to be clear about this because reservists need to know whether under the new regime they still have a chance of that kind of experience. As I have said to the Minister privately, if they do not you may not succeed in attracting the same calibre of people into the reserves. On the other hand, with the numbers going in both directions—the decline in the regulars and increase in the reserves—it is not going to be possible to deploy large numbers of reservists, because the success of employing them on an embedded basis depends on selecting individuals and making sure that the number of reservists is relatively small in relation to the regulars, who are committed to a particular intensive operation.

I want the Government to be absolutely clear about this. There should be no beating about the bush at all. It is perfectly respectable to say that those with medical and signal skills will not be needed the whole time on a contingency basis in the regular forces but we will need to draw on them—and, in any case, we need those people to be able to exercise their own professional activities and gain skills in the civilian sector when they are not being deployed on operations, so they will be deployed on the front line, as they have been up to now. We have to be absolutely clear about our intentions for reservists, and it is really that they should not be

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deployed in high-intensity warfare. When the Minister said—slightly vaguely, I thought, avoiding this issue—that they would be in supporting roles, which essentially means that they would be behind the wire rather than outside it. We should be clear about that, but it is probably the right solution in all the circumstances. We need clarity, and we have not had it on that point.

Apart from that, I agreed very much with the Minister’s speech, which I thought was good. This Bill is rightly generous—I do not complain about that—to employers and reservists in the financial incentives and protections that it sets out. However, my reason for speaking on this clause is that I am slightly worried. This is not a vastly or historically momentous point—far from it—and it is not one on which I have put an amendment down, although I suppose I could table one at Report, if needed.

A potential loophole is provided by Clause 47—almost a manhole in our path that some people might fall down. Therefore, I want to raise this whole matter, and I hope that I get some reassurance. The object of Clause 47 is to provide protection for reservists who have been less than two years in employment and who then face the sack wholly or partially because of their membership of the reserve. Beyond two years, they have the protections that everyone has under the Employment Rights Act and a section—I cannot remember the number—of the Reserve Forces Act that makes it clear that people cannot be sacked when they are deployed, at risk of being deployed or about to be deployed.

4.45 pm

There is an anomaly, which rightly would be closed by the proposed new clause, that you can sack people with impunity at the present time within two years of employment. It is right to close the loophole and I am glad that the Government are doing so. I am very much in favour of the proposed new clause but Clause 47(4) provides that the clause will come into force only when the Secretary of State has declared that Parts 1, 2 and 3 of this Bill—or Act, as it will then be on Royal Assent—have come into force. That is contained in Clause 49(1). This means that there may be some delay between Royal Assent to the Bill and when this provision, this protection, comes into force. As we all know, Parts 1, 2 and 3 provide for the Secretary of State to make a number of regulations. All these regulations, in different fields, will require consultation and take time, and the bureaucracy will spend a long time drafting them, as it always does. During that period, any less than fully benign employer will see that he has an opportunity, if he wishes to do so, to get rid of any employees within two years of their employment with complete impunity. That is the loophole, the manhole, about which I am concerned.

We cannot legislate retrospectively but would it not be more sensible to ensure that this last clause in Part 3 comes into force with Part 4 of the Bill under subsection (3) of Clause 49 rather than under subsection (1), which would be the case under the present drafting? This would mean that the protection would come into effect on the day on which the Bill is passed, which is likely to be many months before Parts 1, 2 and 3 come into force.

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I hope that I have made my concern clear about the potential loophole and that the Minister will give some thought as to whether it could be easily and sensibly closed.

Lord Astor of Hever: My Lords, I apologise to the noble Lord for the length of my speech on the last clause. It contains important issues and I wanted to cover them in some detail.

Lord Davies of Stamford: My Lords, I must have given the wrong impression. In no sense was I complaining about the length of the Minister’s speech. I thought I had congratulated him on a comprehensive speech, which had started an interesting debate.

Lord Astor of Hever: I apologise. Perhaps I misunderstood when the noble Lord referred to Second Reading speeches. Anyway, I hope that I answered all the important points.

The noble Lord referred to the lack of clarity in deploying the reserves, especially the infantry. The pairing of regulars and reserves on high-intensity combat will include individuals and up to sub-unit level. We are changing the mobilisation limits to 12 months to enable greater pre-deployment training. I mentioned earlier—I am sure the noble Lord will welcome this—that we must get more of the niche skills in the cyber field and in the medics, who we do not need the whole time.

On talking to the reserves—I am sure the noble Lord has also done so—I found that a number of them want to deploy. When the noble Lord was a Defence Minister, I went to Afghanistan on a couple of occasions and I met a number of reserves, who were very well trained. All the regulars to whom I spoke were very impressed by the reserves and how well they trained and fitted into the Regular Army. I do not think that there is any pressure on them being embedded with the regulars, and it is our plan that they train together and use the same equipment. I should like to organise for noble and gallant Lords a visit to a reserve unit paired with a regular unit to talk to the soldiers.

Lord Davies of Stamford: I thank the noble Lord and totally agree about this. The reserves have done a wonderful job. I pay tribute to them. We have all paid tribute to them. I used to go to Afghanistan and Iraq every six months when I was in the MoD, and I saw them on the front line in exactly the way the Minister describes. As he knows, reservists take it as a matter of enormous professional pride—it is a thing they really want—when their regular colleagues forget that they are reservists. That does happen. You hear that from both sides. That is a tremendously high standard to achieve. People go into the Reserve Forces because they are prepared to put themselves through the hell of training up to that level and to risk their lives when they are deployed. That is the military experience they want. If they are going to have that on offer in future, they must be honestly told that. If they are just going to be deployed behind the wire or on UN peace-keeping operations, they need to be told that too.

Lord Astor of Hever: The noble Lord makes a very good point. I will take away the points he made earlier about Clause 47 and write to him on them. The noble

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Lord, Lord Robertson, mentioned the Ashcroft report. If there is an appetite for it, I am very happy to organise a Peers’ brief on it. Perhaps noble Lords will get back to me on that.

Clause 47 agreed.


Amendment 18A

Moved by Lord Rosser

18A: After Clause 47, insert the following new Clause—

“Reserve forces: publication of recruitment figures

The Secretary of State shall publish quarterly recruitment figures and trained strength numbers for reserve forces against adjusted quarterly targets.”

Lord Rosser: I almost feel as if I am once again moving an amendment after the debate on it has already taken place. Amendment 18A provides for the Secretary of State to publish quarterly recruitment figures and trained strength numbers for Reserve Forces against adjusted quarterly targets. I certainly do not wish to speak at any great length on this amendment but, as has already been said, there has been a significant change in approach by the Government to the role of the reserves since the increase in reserve strength was first announced alongside further reductions in the size of our Regular Forces. At that time, the previous Secretary of State made it clear that the reduction in the size of the Regular Forces would take place only as and when the reserves had been increased.

That is not now the Government’s stance, which has changed to saying that the reduction in the size of the Regular Forces and the Army, in particular, is not dependent on first delivering the increase in the size of our Reserve Forces. However, the increase in the size of our Reserve Forces must be for a purpose and, presumably, if we do not achieve the target that has been set within the period set, the capability of our Armed Forces as a whole will be less than it would otherwise have been. If that is not the case, it begs the question of why we are increasing the strength of our reserves.

If we can accept that our Reserve Forces will have an even more important role to play in the future, the question of whether recruitment targets will be achieved is a matter of some importance. Last autumn, there were reports in the press of the Army failing to attract and recruit sufficient Army Reserve personnel, and as a result it was claimed that the Army faced an increased risk to its structure and operational capability. If we are falling behind in recruitment, it may take time to recover lost ground since it is not simply a case of recruiting people. The people recruited have to be trained before they can become fully effective members of the reserves, and that takes time.

We are talking about ensuring the overall effectiveness of our Armed Forces and thus about our nation’s security. Our reserves are not simply something that is nice to have if people can be recruited; they will have an important and enhanced role to play in the future as part of our overall Armed Forces strength. In view of that, it does not seem unreasonable to provide in

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this Bill for not only the current Secretary of State but future Secretaries of State to publish the figure that will enable us all to know whether the targets for increasing the size of the our reserves are being achieved and thus that the future intended capability of our Armed Forces is being delivered in full. The fact that this information will have to be published may also help concentrate the minds of all those directly concerned in ensuring that targets set prove to be targets achieved. I beg to move.

Lord Astor of Hever: My Lords, reserves have always made an essential contribution to national security and that contribution is set to increase, with exciting opportunities being offered not just for individuals but for formed units. Reserves will be an integrated part of the whole force required for almost all operations, both at home and abroad. To do this, we are growing our reserves to 34,900 across all three services by 2018 and investing an additional £1.8 billion over 10 years. The Army will grow its reserves to a trained strength of 30,000, the Royal Air Force to 1,800 and the Royal Navy to 3,100. This is a challenging target but one that we are committed to achieving.

These requirements are challenging, but the planned overall numbers of trained reservists are well within historic levels. In 1997, the Territorial Army was more than 50,000 strong; it was reduced to around 40,000 by 2000 and, by 2009, it was down to just 26,000. We now have about 19,090 trained reserves. We should not be surprised if growth is neither uniform nor smooth. Given the time that it takes to train reservists, trained strength improvement will lag behind recruitment. Reservists will be an integral and integrated part of the whole force alongside their regular counterparts. The Committee will no doubt be aware that, recognising the interest in the progress of reserves recruitment, the MoD publishes the trained and untrained strength data for the reserves quarterly. The last figures were released on 14 November and the next set of data is due to be released in the next few days. I am sure that noble Lords would agree that, with such a commitment, there is no need to enact legislation.

The Army is undertaking a significant number of surge activities alongside recruit partnering projects to boost reserve recruiting and grow the reserve force. The initial response to the new recruiting campaign is encouraging and a number of new initiatives have been introduced. These include the revised medical process, introduced in January, and the new online application forms introduced this month. Both these new major initiatives will simplify the process and are aimed at improving the candidates’ journey into and through the application process. I must point out that the programme is still in its early stages. The White Paper was published only in July, and it is true there have been some administrative issues in the process. However, we are working with Capita and the senior Army leadership actively to address these issues. I believe that we can work them through. Adjustments have been made to the application process to ensure that we can continue to progress new recruits. Marketing campaigns based on the new White Paper proposition have just got under way; the latest marketing campaign for the reserves started in early January.

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Maritime Reserves has stabilised its numbers and is working to ensure the retention of trained personnel already in the reserve and reduce wastage during the training programme by tailoring the training methods to better suit the reservist experience. Although there is a slight reduction in the Royal Auxiliary Air Force’s trained strength, the number in training is the highest since April 2012. The force looks likely to meet its end-of-year target and is seeking authority to allocate extra resources to marketing in order to improve further its recruitment rate. Recruiting activity itself is better co-ordinated across the three services than in the past; this should ensure a much more joined-up approach to recruiting. The new recruiting campaigns are delivered at a regional level, following planning and guidance from a national level. We are working hard to deliver the message through internal communications within other government departments that the reserves are recruiting and to demonstrate that the Civil Service is taking the lead in the public sector.

The additional costs of recruitment associated with growth of the reserves are all factored into the Future Reserves 2020 programme. Should recruitment be slower than planned, some funding earmarked for paying personnel who were not in fact recruited could be switched to increase the recruiting effort.

5 pm

The recently announced redundancies are not new. They were indicated in 2010 and again in 2012. Following last year’s redundancies, which were 84% voluntary, a fourth tranche was recently announced. Notifications of redundancy will be issued on 12 June 2014. The Armed Forces redundancy programme was always planned to comprise of four tranches, and this is the final tranche.

The Army started a major recruitment campaign on 16 September. The latest reserves marketing campaign began in January this year. While it is too early to be definitive, the early indications from this campaign are encouraging. The length of time that it takes applicants to progress through the application and training pipeline means that it will take time for the actual impact to become realised, but we are confident that we will begin to deliver the required numbers of recruits to reach our target for 2018.

Those who leave the Army through redundancy are being encouraged to consider a part-time military career in the reserves. For the Army, ex-regulars who enlist into the Army Reserve within three years of leaving regular service can enjoy a number of incentives and benefits, such as a reduced Army Reserve commitment and training requirement or, alternatively, a commitment bonus worth £5,000, paid over four years. There is a comprehensive information campaign to ensure that all service leavers—not just redundees—are aware of the opportunities and benefits of joining the reserves.

Our Reserve Forces have always attracted highly motivated individuals. The assurance that the reserves will play a greater role within the whole force concept will act to broaden appeal and encourage those looking for such an opportunity, as well as their employers.

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In November last year, Defence Statistics published the latest quarterly personnel report, which shows the trained and untrained strength of the volunteer reserves on a quarterly basis. I have the tables and can send them to any noble Lord who would like to see them.

The new offer to Army reservists will underpin the growth required between 2014 and 2018, and it is being promoted through the recruitment campaign launched in January this year. The reduction between July and September last year is not a surprise. The strength of the Army Reserve is expected to fall to around 18,800 by the 2013 financial year end, before reversing the long-term trend with an increase by the 2014 financial year end.

The requirement for an Army Reserve with a trained strength of 30,000 was a recommendation from the independent commission to review the United Kingdom’s reserve forces based on the expanded role also recommended in the report. As explained in our Green Paper, the total strength of the Army Reserve for 2020 is 38,000 in order to deliver 30,000 trained reservists. The investment that we are making in our Reserve Forces and the other changes detailed in the White Paper will give us greater assurance in the future that reservists will be trained and available when needed.

The noble Lord, Lord Rosser, asked about the draw-down of regulars at the same time as growing the reserves. As an organisation which recruits only at the bottom of the rank structure, recruiting remains a priority if the correct rank/experience balance is to be maintained. The Armed Forces have learnt their lessons from experience. It is very difficult to turn the recruiting tap back on having switched it off. Maintaining inflow is essential to maintain future operational capability and, given the current operational demands, it will remain for the foreseeable future. Notwithstanding that, the reduced size of the Armed Forces inevitably means a reduction in the number of new recruits required.

I hope that that answers the noble Lord’s question, and I therefore ask him to withdraw the amendment.

Lord Rosser: Once again, I thank the Minister for that comprehensive reply and for the information that he has provided on the progress being made with Reserve Forces recruitment. I certainly would like to have a copy of the information to which he referred during his reply.

The only comment I would make is that, while it is good to hear that the figures are being published and that it is the intention to keep providing that information, putting it in the Bill would ensure that that continued to be the case in the future. Sometimes attitudes change, and it is possible that we will find that the information is no longer being provided.

However, I will leave it at that. I thank the Minister once again for his reply and I beg leave to withdraw the amendment.

Amendment 18A withdrawn.

Amendment 18B

Moved by Lord Rosser

18B: After Clause 47, insert the following new Clause—

“Treatment of reservists

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(1) Section 39 of the Equality Act 2010 (employees and applicants) shall apply to serving and former members of the Reserve Forces as if membership of such forces were a protected characteristic under section 4 (the protected characteristics) of that Act.

(2) Members of the Reserve Forces are required to disclose their membership to potential employers upon application for employment.

(3) The Secretary of State shall within one year of this Act coming into force establish an employer engagement committee to act as an advisory body on the recruitment and retention of members of the reserve forces.

(4) The Secretary of State shall lay before Parliament an annual Report of the Employer Engagement Committee detailing its activities and recommendations for the Government.”

Lord Rosser: Amendment 18B seeks to amend the Equality Act 2010 to prevent discrimination against reservists in employment and in seeking employment by adding membership of the Reserve Forces to the list of protected characteristics under the Act. The potential concerns are fairly obvious and, if they materialised, would constitute a serious impediment to people joining the reserves or remaining in them.

A clause in the Bill refers to the qualifying period of employment for unfair dismissal related to an employee’s membership of a reserve force, so there is obviously recognition that being unfairly penalised or discriminated against for this reason is a real possibility. That discrimination could also take place when being considered for a job, since some prospective employers might take the view that they did not wish to recruit someone purely or largely because they would be away from their job for periods of time to fulfil their commitments as a member of the reserves. Discrimination could also take place against someone in the reserves already working for the company in question, since membership of the reserves and being away from the job for a period as a result might be the sole or major factor in denying them promotion to a higher-level post. The purpose of this amendment is to reduce the likelihood of this happening but it will also give the Government, through the Minister, the opportunity to place on the record how they intend to address the potential problems that I have identified if they feel unable to accept the amendment.

Amendment 18D seeks to support recruitment to and retention in our reserves by ensuring that a reservist is entitled to be permitted by his or her employer to take time off during their working hours in order to undertake training activities connected to the reserve force, subject to the provisions laid down in the amendment, and if that does not happen to be able to present a complaint to an employment tribunal. It will be no help in encouraging recruitment or assisting retention if there are doubts about whether leave for training activities during working hours will be given by the reservist’s employer or, indeed, if it is to be given only grudgingly. Once again, if the Government feel unable to accept this amendment, I hope that the Minister will be able to indicate how they see the concerns I have raised being addressed and satisfactorily resolved from the point of view of the actual or potential member of our future Reserve Forces. I beg to move.

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Baroness Garden of Frognal: My Lords, I have considerable sympathy for the spirit of the amendments spoken to by the noble Lord, Lord Rosser. There was a deal of concern expressed at Second Reading over the impact on civilian employment of the additional levels of readiness and the additional time involved in the new recruit programme. Trying to safeguard both sides was discussed then.

I picked up a leaflet at the MoD a few days ago which under “The Employer Proposition” states:

“We will develop an open and predictable relationship by: ensuring that reservists notify employers of their reserve status”,

with a rider that it is “subject to security considerations”. That part of the concerns of the noble Lord, Lord Rosser, is already being dealt with. Another paragraph of the leaflet states:

“We will introduce a new National Relationship Management scheme to establish strategic personnel relationships with major employer organisations, relevant trade bodies and the largest employers”.

It is essential for the success of this scheme that the Government have an ongoing dialogue with employers to make quite sure that their concerns are met, as well as making sure that the rights of reservists in connection with their employment are met. I hope that the Minister will be able to reassure us that the concerns which the noble Lord, Lord Rosser, has raised are already being dealt with and considered, and that safeguards have been put in place by the Government.

Lord Davies of Stamford: My noble friend’s amendment is testimony to what I spoke about earlier—the complete commitment on this side of the Committee to try to ensure that we successfully recruit and train the projected number of reservists. It would be intolerable if people who had signed up to fight for their country were subject in some way to discrimination in the employment and labour markets. Discrimination because of their sex, colour and so on is now regarded as utterly intolerable. My noble friend’s amendment is therefore absolutely appropriate.

I should make one final point. I think that I am right—the Minister will know the details—in saying that similar protections are available to members of the National Guard in the United States. We all know that the National Guard is extremely successful at recruiting and that it has enormous public support, including among employers, so I do not see any difficulty of the kind suggested by the noble Baroness whereby employers might reasonably resent such a provision. We all know that the National Guard in the United States plays a key role in the defence capability of that nation and is regularly deployed on operations. We should be encouraged by the experience of the United States to pursue the line adopted in my noble friend’s amendment.

Lord Astor of Hever: My Lords, we recognise and value the contribution of reservists and need to be sure that their interests are properly protected. Part of this is making sure that their reserve service does not negatively affect their employment prospects. That is why Clause 47 amends the Employment Rights Act 1996 to remove the current two-year qualifying period for claims of unfair dismissal where the reason for dismissal is, or is primarily because, the individual is a reservist.

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I should emphasise that protection is already in place to ensure that reservists are not dismissed as a result of any duties or liabilities that they have to undertake, for example as a result of being mobilised. This protection is provided by the Reserve Forces (Safeguard of Employment) Act 1985, Section 1 of which gives a reservist who is called out for reserve service the right to apply to his or her former employer to be reinstated after they return from mobilised service. In addition, Section 17 of the 1985 Act makes it a criminal offence for an employer to dismiss an employee solely or mainly by reason of any duties or liabilities that may arise as a result of being called out.

One key strand of the White Paper was to foster an open and honest relationship with employers. Employers of reservists make a greater contribution to national security than others. We understand and value the commitment that employers make. We have seen from some of the evidence submitted—I am thinking particularly of that from the Confederation of British Industry—that employers are wary of the introduction of discrimination-type legislation, and that such an approach would run counter to the partnership approach that is needed between employers and defence. CBI members were particularly concerned that such an approach could strain working relationships between employers and reservists.

As part of this partnership approach we will: provide employers with greater awareness and predictability of training and mobilisation commitments; streamline the administrative arrangements to receive financial assistance when a reservist is mobilised; introduce additional financial incentive payments to micro, small and medium-sized enterprises; and provide appropriate recognition of the contribution that these employers make by enhancing our existing recognition schemes.

Subsection (1) of the proposed new clause in Amendment 18B would mean that Section 39(4) of the Equality Act 2010 would apply “as if membership” of the Reserve Forces “were a protected characteristic”. Surely, membership either is or is not a protected characteristic. The advice from the Government Equalities Office is that being a reservist would not count as a protected characteristic as defined in the 2010 Act—in other words, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sex or sexual orientation.

There have been occasional calls for various characteristics to be given protected status, particularly during the preparations for the Equality Act. These were mostly in relation to some form of physical appearance, ranging from extremes in individuals’ height and weight to the way in which people may choose to dress. However, after full consideration, the list of protected characteristics was set as already outlined. Including reserves as a protected characteristic in the Equality Act would be a disproportionate tool to tackle the problem and could give rise to the same argument being deployed successfully in relation to a number of the physical characteristics that I mentioned. This could have the result of doubling the number of characteristics, which would have an increased on-cost to businesses, public authorities and the courts.

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5.15 pm

In relation to subsection (2) of the new clause proposed in Amendment 18B, individuals with protected characteristics do not need to declare these when applying for jobs, so it would seem to be an unreasonable request for reservists. Currently, reservists can choose whether to declare their reserve status in an application form, and this seems to work well for both individuals and employers.

It is our policy that when in employment reservists must inform their employers of their reserve service, except for where a security waiver—for instance, for Northern Ireland and special forces—has been approved by the chain of command. Despite this, many reservists have been unwilling to tell their employer of their reserve status and so claim to be unemployed or do not provide accurate employer details to their chain of command. The chain of command is also obliged to write to employers informing them of their reservist employees.

I acknowledge that that application has been inconsistent but we are now taking action to ensure a consistent approach. This January, commanding officers of reserve units wrote to their reservists’ employers to outline the upcoming event in the forthcoming training year as part of our commitment to better inform employers of training so that it can be better planned for by the employer. However, the process will still rely on individual reservists providing accurate and timely information. The focus will be on ensuring the existing rules are communicated effectively and that senior reservists lead by example, promoting and encouraging compliance.

Addressing subsections (3) and (4) in Amendment 18B, we have already taken steps to develop our engagement with employers and build our relationships with them. We have already introduced a corporate covenant as the framework for employers to engage with defence on the full range of personnel issues, including reserve service issues. We are currently setting up the national relationship management organisation to provide a single point of contact for the largest external stakeholders on defence personnel issues. It will establish a mechanism by which relationships can be managed and sustained across our departmental and tri-service boundaries. Additionally, defence will continue to seek informed independent advice from the National Employer Advisory Board about how the MoD can most effectively gain and maintain the support of employers for Britain’s Reserve Forces. Our employer support helpline and web pages have also been updated to include a new employer toolkit.

We also have an external scrutiny group for the Future Reserves 2020 programme to review the change programme and the overall health of the reserves. We have been discussing a government amendment to require reserve associations to report annually on the state of the volunteer Reserve Forces, which will include an assessment of recruitment and retention.

Turning to Amendment 18D concerning the Employment Rights Act 1996, I recognise that the noble Lord is seeking to further the experience of reservists by ensuring that they have adequate time to complete all their training. We hope that all employers

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will feel able to support reservists in their employ by permitting them to take unpaid leave for the purpose in the way that this amendment envisages. However, the amendment, if carried, would have a regulatory effect on employers and we need to look at this in a slightly wider context.

One of the key strands of the White Paper was to foster an open and honest relationship with employers. The amendment would run counter to the partnering approach that is needed between employers and defence and could make employers more reluctant to employ reservists because of the increased legislative burden that such an amendment would impose on them. As part of this partnering approach, we will provide employers with greater awareness and predictability of training and mobilisation commitments. The White Paper gives an undertaking to ensure that employers are informed about their reservists, subject to security requirements.

The White Paper also committed to notify employers of their reservists’ training plans each year. The Civil Service is setting an example by offering a minimum of 10 days’ additional special paid leave each year for reserve training. We invite other public and private sector employers to follow its lead on a voluntary basis, without the need for additional legislation.

It is worth highlighting that reserve service will benefit different employers in different ways. For some, the improved skills, experience and training of the individual reservist will be beneficial. For others, where the reservist’s military role is close to their civilian one, there will be more benefit from transferable skills. We hope that the benefits that reserve service can bring to an employer will outweigh any difficulties in allowing a reservist time off for their training.

In conclusion, it would be wrong to penalise good employers because of bad employers, and this amendment would do just that. We want to encourage employers to allow reservists time off for training rather than force them to do so by introducing further legislation. A survey by the Federation of Small Businesses of its members in December 2012 and January 2013 found that almost 40% of small businesses would consider employing a reservist in the future and that 7% currently employ or have previously employed a reservist. Making it more onerous for employers to employ reservists could have the perverse effect of encouraging employers to seek means to avoid employing reservists.

Finally, I believe that we are meeting, or will meet in the near future, the intent of subsections (3) and (4) of the new clause proposed in Amendment 18B. I do not believe that subsection (1) in that amendment is deliverable or desirable, and the same applies to subsection (2). I therefore ask the noble Lord to withdraw the amendment.

While the intent of Amendment 18D is laudable, I have tried to outline the careful balancing act that we have to strike between working with employers by encouragement and example-setting, and legislating, which may have some undesirable consequences and would seem to be a disproportionate tool when there is a body of employers that want to work with the reserves. We are engaging hard with employers so that more recognise the benefits of employing reservists.

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I thank my noble friend Lady Garden for her support, and I hope that I have satisfied the concerns of the noble Lord, Lord Rosser.

Lord Davies of Stamford: Would the noble Lord be kind enough to address my point about the National Guard in relation to Amendment 18B? We should bear in mind that any employers’ organisation—like any other trade association or representative body—is always likely, when a new idea is put to it, to adopt a defensive, cautious position and focus on the difficulties. Good government surely does not consist of abandoning a good idea at the first hurdle. Has the MoD explored the experience of the National Guard in this context in the United States and, if so, could the Minister let us know the conclusions of that study?

Lord Astor of Hever: The noble Lord makes a very good point about the National Guard, and I apologise if I did not refer to it in my response. This is quite a detailed subject. I will write to the noble Lord and copy my letter to the other noble Lords who have taken part in this debate.

Lord Rosser: I thank the Minister for his comprehensive reply and I thank the noble Baroness, Lady Garden, for her comments. I also thank the Minister for setting out the statutory safeguards, as well as the non-statutory measures that have been, and are being, taken to address the issues that I have raised. If the Government find that working with employers and not going down the statutory route does not work, I hope that they will reflect again on providing legislation to protect the position of employees who are members of the reserves, who could find themselves in a vulnerable position.

Having said that, I appreciate that this is a difficult area. It can be very difficult to prove discrimination against somebody on the basis of membership of the Reserve Forces, particularly if one had to seek to prove that there had been discrimination through, for example, denying someone a promotion or giving them a lower salary increase or some other act of that kind. I also accept that proving discrimination on these grounds could be difficult.

I conclude by thanking the Minister for his comprehensive reply, and I beg leave to withdraw the amendment.

Amendment 18B withdrawn.

Amendments 18C and 18D not moved.

Amendment 18E

Moved by Lord Rosser

18E: After Clause 47, insert the following new Clause—

“Amendment of Criminal Justice Act 2003: service persons

In section 146 of the Criminal Justice Act 2003 (increase in sentences for aggravation related to disability or sexual orientation, sexual orientation or transgender identity)—

(a) in the title of the section, add at the end “or status as a service person”;

(b) after subsection (2)(a)(iii) insert “or

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(iv) the victim being, or being presumed to be, a service person.”;

(c) after subsection (2)(b)(iii) insert “or

(iv) by hostility towards service people.”; and

(d) after subsection (6) insert—

“(7) In this section “service person” means member of the reserve forces and any relative of a member of the reserve forces”.”.

Lord Rosser: Amendment 18E seeks to amend the Criminal Justice Act 2003 so that physical or verbal assault upon a member of the Reserve Forces or a member of their family would be classed as an aggravating feature of the crime and should be reflected in the sentence handed down where the prosecution could establish that service in the Reserve Forces was the motive for the assault. We know from surveys of Armed Forces personnel that physical and verbal assaults on them motivated simply by the fact that they are service personnel run at a surprisingly high rate. On a much more severe scale, we have had a recent example of a member of our Armed Forces being murdered on our streets simply because he was a member of our Armed Forces.

Attacks on service personnel, whether physical or verbal, are totally unacceptable, do nothing to assist recruitment and retention, and run contrary to the esteem in which members of our Armed Forces are held by the overwhelming majority of the population, who recognise that they are willing to put their lives on the line in defence of our country’s people and interests. We need to do as much as we can to reduce the incidence of assaults, particularly at a time when we are seeking to recruit substantial additional numbers into our reserves. I say once again that if the Government do not believe that this amendment is the best way to achieve that objective, I hope that the Minister will indicate in his reply whether they regard the issue that I have raised as a real problem and, if so, what courses of action they are taking or intend to take to address it. I beg to move.

Lord Palmer of Childs Hill: My Lords, I hope that the Minister will include in his reply what instances there have been of confusion about what a “service person” should be. I would have thought that under existing legislation “service person” would include all the things that are included in proposed new subsection (7) in the amendment. Has there been any experience that “service person” has not been taken to include the people mentioned here? It seems a rather worthy thing to protect people even more and make sure that they are included in the criminal justice legislation, but I wonder whether there is reason to believe that any of this has been necessary in the past.

Lord Davies of Stamford: My Lords, when in 2007 I chaired the national inquiry into the national recognition of the Armed Forces, this was one of the recommendations that we made. We made 40 recommendations, 38 of which, including Armed Forces Day, automatic parades for units returning from combat missions and so forth, were accepted. Two were not, and this was one of them. The other one was having an officer of the Armed Forces

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permanently available in the House of Commons, probably in the Library, to inform people about any military matters that they might have questions about. In that report, to which I refer the noble Lord, Lord Palmer, we cited a number of cases of grievous assaults perpetrated on members of the Armed Forces, and I am afraid that the problem has not gone away. Over the past six years or so, there have been other incidents which the Committee will know about. I retain my support for this amendment.

It has one curious feature but I think I know the explanation. It is that the protection seems to be designed merely for members of the Reserve Forces but does not currently exist for members of the Regular Forces. I imagine that it is because including all members of the Armed Forces could have been outside the scope of the Bill. I therefore imagine that my noble friend, with whom I have not discussed this matter, had this in mind as a probing amendment to try to push the way forward to achieve what we really need, which is the kind of legal protection for all members of the Armed Forces—all those who wear the Queen’s uniform—who are prepared to lay down their lives for the rest of us. The least we can do is to make sure that they do not suffer discrimination or, in this case, violence, potentially, when they are in their home country.

5.30 pm

Lord Palmer of Childs Hill: My Lords, perhaps I may ask for some elucidation. I accept all the points that the noble Lord has made about his time in the MoD and his knowledge of this subject. Obviously these incidents have happened, but do we need legislation such as this to identify it or were the perpetrators of these actions against the service people he mentioned dealt with by the law at the time?

Lord Davies of Stamford: My Lords, I do not know that I should get into the habit of answering questions across the Floor. I would love to be a Minister again but that has not happened to me so far. I shall have to wait a bit longer. However, I shall of course respond to the noble Lord. There are the normal legal protections against assault from which he and I and every other citizen benefit. Clearly, it is a criminal offence. However, the purpose of this amendment, as I understand my noble friend, is to make it an exacerbating factor if the reason for the assault is that the victim is a member of the Armed Forces. That provides a special protection for those who might otherwise be especially vulnerable to this kind of attack. It is similar to the exacerbating factor that we already have of the motive, or part of the motive, for an assault being racial. We introduced that for a section of the community whose members might be innocent victims of gratuitous attacks which otherwise would not occur. Therefore, there is a complete analogy there and I think it was the analogy which, rightly, inspired my noble friend—if I may be so bold as to presume to answer for him—to conceive this amendment.

Lord Astor of Hever: My Lords, I am sure that I speak for all of us in saying that we hold the same view about discrimination against members of the Armed Forces. It is a completely unacceptable form of behaviour

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towards the men and women who have committed themselves to defending this country, its people and its way of life, and to making sacrifices that others perhaps sometimes take for granted. Those who discriminate against service personnel, or against the wider Armed Forces community, succeed only in diminishing themselves.

Discrimination can take many forms. Some of it is thoughtless or uninformed—for example, when public services fail to take account of the special circumstances in which Armed Forces personnel find themselves. Some of it is based on myth and prejudice—a view that soldiers create trouble or are unreliable customers is a misperception that we must challenge. However, some discrimination or abuse stems from genuine hostility to members of the Armed Forces, motivated by politics or perhaps by some unfortunate personal experience. It is on that narrow part of the spectrum that this amendment focuses.

The amendment would have the effect of amending Section 146 of the Criminal Justice Act 2003, which lays down circumstances in which the seriousness of a criminal offence, and thus the severity of the resulting sentence, is increased. It provides for increased sentences where an offender demonstrated hostility based on the victim’s sexual orientation, disability or transgender status, or where the offence was motivated by hostility towards persons of a particular sexual orientation, persons who have a disability or persons who are transgender. Section 145 of that Act makes similar provision in respect of “racially or religiously aggravated” offences.

The amendment would provide for increased sentences where an offender demonstrated hostility based on the victim being a,

“member of the reserve forces”,

or indeed,

“any relative of a member of the reserve forces”.

It would also provide for increased sentences where an offence was motivated by hostility towards members of the Reserve Forces.

It is important that we are clear about what the amendment would not do. It would not cover situations such as a refusal to admit members of the Armed Forces to a hotel or bar. Such situations have led to widespread public indignation but they generally do not involve a criminal offence.

The Government’s view is that there is no need for a change in the law on these lines. The courts already have a wide power in sentencing to take into account factors that make conduct more serious. Criminal acts based on irrational hostility to a person because he or she is in the Reserve Forces may lead to a higher sentence in any event. I am not aware of any evidence of courts finding that they have insufficient powers to give an appropriate sentence to an offender in such circumstances, or that we have received representations from the courts asking us to amend the law in this way.

In contrast, converting the flexibility that the courts currently have into a mandatory requirement, as the amendment proposes, may present practical difficulties. For example, demonstrating to a court that the aggravating factor was present and should be taken into consideration

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could be relatively straightforward in some cases, such as where a victim was in uniform, but far from straightforward in other cases, such as those in which the victim was a relative of a member of the Reserve Forces. How are the courts to deal with a situation where an offence is motivated by excessive rivalry between different sections of the Armed Forces or, perhaps, a domestic dispute? A mandatory requirement for a higher sentence reduces the court’s ability to take a sensible, common-sense approach to what is really going on in the circumstances it is examining.

There is a fundamental difference between offences provoked by hostility to the work of the victim and offences motivated by prejudice against inherent characteristics, such as homophobic crime. Section 146 of the 2003 Act is designed to help to change deep-rooted prejudices. It would be quite wrong to suggest that such provisions were necessary in relation to the Armed Forces. However, the most telling argument against this amendment is the views of the intended beneficiaries. I am not aware of any general desire in the Armed Forces community for legislation of this type. The service men and women who wear their uniforms with pride want to be respected in and considered part of their communities, and rightly so. We should not put them in a position where they are forced to explain why they require protection in law in a way not enjoyed by, for example, firemen or ambulance staff. Indeed, the amendment deals only with members of the Reserve Forces, as the noble Lord pointed out. It would not extend to members of the Regular Forces, meaning that rather than helping create the whole force which we seek the amendment would separate out members of the Reserve Forces for different treatment in law. I am not sure whether they would wish to see that in this context.

None of this means that the Government are complacent about discrimination against service personnel: quite the opposite. The Armed Forces covenant has a high profile across the whole of Whitehall and beyond. The first principle, that members of the Armed Forces community should not suffer disadvantage as a result of that membership, has given rise to many initiatives which are making a real, practical difference. In the first statutory annual report on the Armed Forces covenant, published in December 2012, we described what we were doing to make these principles a reality. We are working to remove the disadvantage that the children of service personnel can face in the schools system as a result of their mobility through the admissions code and the service pupil premium. We are ensuring that service personnel and leavers encounter a level playing field in access to social housing or Government-funded home ownership schemes.

At the same time, we are working to build the links between the Armed Forces community and the wider community to improve the knowledge and understanding that must be at the centre of that relationship. From knowledge flows the esteem for our service men and women that is ultimately the most powerful way to counter discrimination. The community covenant has now been signed in nearly 400 local authority areas, from Cornwall to the north of Scotland, and around 60 companies have signed up to the new corporate covenant, signifying a real determination to strengthen

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ties with the Armed Forces. I am confident that it will continue to gain further support. The grant scheme linked to the community covenant has allowed us to back a range of schemes that will help to put these declarations into practice. To that, we can now add the £35 million fund created as a result of the LIBOR fines, which will support charities with projects to help the Armed Forces and their families.

This is not an entirely new proposal. Thomas Docherty MP previously raised this issue in a Private Member’s Bill and has another for consideration this year, with its Second Reading having been scheduled for 24 January. The debate was adjourned and is expected to resume on 28 February. The previous Government, in response to a similar recommendation in the 2008 report from the then Member for Grantham and Stamford, now the noble Lord, Lord Davies of Stamford, said,

“we do not think that a change in the law is necessary or appropriate.”

As a result of the Armed Forces Act 2011, we have a new vehicle at our disposal in the form of an annual report to Parliament—effectively a report on the state of the Armed Forces covenant. In February of last year, my right honourable friend, the member for Rayleigh and Wickford, the Minister of State for the Armed Forces, indicated that the question of discrimination would be a legitimate issue for the next report at the end of 2013. The report, published on 16 December 2013, said:

“Our view is that, in the last year or so, the extent of public knowledge and sympathy for the Armed Forces has continued to grow—aided by the Community Covenant and the new Corporate Covenant. We therefore continue to believe that education, rather than legislation, is the key to eradicating the kind of behaviour that we all abhor”.

In answer to the question from my noble friend Lord Palmer about what instances there have been of service personnel not taken to include those in the amendment, we recognise a service person as a regular or reserve member of the Armed Forces. Proposed

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subsection (7) in the amendment seems to be drafted to enable debate in this Committee otherwise it would be out of scope, as it was judged to be in the House of Commons. The noble Lord, Lord Davies, asked about legal protection. Legal protection for all Armed Forces personnel would be out of scope of this Bill.

I hope that I have answered all the noble Lord’s concerns and I urge him to withdraw his amendment.

Lord Rosser: I thank my noble friend Lord Davies for his contribution and support and also the noble Lord, Lord Palmer of Childs Hill for his contribution. The Minister has once again done us the courtesy of giving us a very full and comprehensive response to the amendment, setting out the Government’s position. I am slightly disappointed with the reply, although I do not want to suggest that I had imagined the Minister would say that the Government would accept the amendment.

The Minister made reference to ambulance staff not having this kind of protection. That may be true in England and Wales, but I do not think that it is true in Scotland, where I believe it is offered to members of the emergency services. If I am proved wrong in saying that, I shall of course apologise. However, I think there is a wider scope in Scotland which goes beyond the police. In England and Wales, that kind of protection is there in respect of the police but does not extend beyond that.

I would like to reflect on what the Minister has said before deciding whether to pursue this at a further stage and in discussions on the Bill. In the meantime, I thank him again for his comprehensive reply, which I appreciate, and I beg leave to withdraw the amendment.

Amendment 18E withdrawn.

Amendment 18F not moved.

Committee adjourned at 5.44 pm.