Appendix 2: Armed Forces Bill
Letter from the Rt Hon. Baroness Goldie DL, Minister of State at the Ministry of Defence, to the Rt Hon. Lord Blencathra, Chair of the Delegated Powers and Regulatory Reform Committee
Thank you for the Delegated Powers and Regulatory Reform Committee’s 7th Report of this session on the Armed Forces Bill, which was published on 18 October.
The Committee has drawn attention to two clauses in the Bill; clause 8 which relates to the Armed Forces Covenant and clause 10 that would provide a power to restrict grounds of appeal in connection with service complaints.
I am considering carefully the Committee’s view, that in respect to clause 8, the power to define “relevant family member” should be exercised through the making of regulations and subject to the affirmative resolution procedure, and the guidance to be issued under section 343AE should be made subject to the draft affirmative resolution procedure.
Turning to clause 10, the Committee considers the power, which would allow service complaints regulations to restrict the grounds on which an appeal to the Defence Council may be made, to be broad and without limitations. The Committee suggests that it is already known what restrictions on grounds of appeal will be provided for in service complaints regulations, and that this could be set out on the face of the primary legislation. I have considered these matters carefully and there are very good reasons for retaining the flexibility of the option to set out the detailed restrictions on grounds of appeal in secondary legislation and not on the face of the Bill.
Defence as an organisation is going through a significant period of transformation and the nature of Service and Defence as a concept is developing. A broad power is therefore needed so that the detailed grounds of appeal can be appropriately amended by secondary legislation and not con The current legislative framework provides for broad regulation-making powers in primary legislation, with a limited level of detail on precisely how the system should operate. It was agreed by Parliament during the passage of the Armed Forces (Service Complaints and Financial Assistance) Bill in 2014/15 that the detailed provisions with respect to the procedure for making and considering service complaints should be left to secondary legislation, and this is the approach that the Department has continued to adopt with these amendments.
While Part 14A of the Armed Forces Act 2006 contains some mandatory requirements for service complaints regulations, we believe that the specific grounds for appeal should not be one of these requirements. This is consistent with existing powers such as the power to set out the details surrounding which complaints are excluded from the system (section 340D(4)), the admissibility of complaints (section 340B(5)(c)) and requirements relating to independent decision-making (section 340E(1)). Putting specific grounds of appeal into the primary legislation would therefore be out of sync with the current legislative framework, and significantly limit our options if the Department decided to review the system again in the future.
Although we are aligning our processes closer to public sector grievance systems, such processes are not set out in law for the Civil Service and are only contained in policy. It is therefore not the case that we could adopt existing grounds of appeal from other legislation and bring them over to the service complaints system. We believe setting out the grounds for appeal in secondary legislation will give us sufficient flexibility to work through the practicalities of bringing the current regulations into closer alignment with MOD’s civilian grievances system.
I hope the reasons we have provided make it clear as to why we have not accepted the recommendation relating to clause 10.
Given the timescale for the Bill, I propose to update the House at Report. In the meantime, I am taking this opportunity to enclose a supplementary delegated powers memorandum to explain the additional power, which appears in a government amendment tabled at Grand Committee, to insert a new clause on the framework for establishment of a tri-service serious crime unit, a development which has been welcomed across the House. strict us in the future.
12 November 2021