§ (on Recommitment, second day)
§ "1996-01-30">Tuesday, 30th January 1996.
§ The Committee met in the Moses Room
at half past three of the clock.
§ [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
§ Clause 56 [Call out for certain operations]:
§ On Question, Whether Clause 56 shall stand part of the Bill?
§ Lord Judd
Before we endorse this clause, I hope that it might be in order to raise one or two points. First, we on this side of the Committee— as I am sure noble Lords on all sides of the Committee— would want to put on record our unqualified admiration for the tremendous work, particularly in recent years, which has been done by the armed services in the context of the kind of role described in Clause 56. I also would hazard to say that my impression is that it gives a great deal of professional satisfaction to those involved, who feel that they are already making a very useful contribution to humanity.
That work obviously overlaps with the work of many existing humanitarian agencies. In a sense, I should certainly declare an interest because my professional life has mainly been spent in such agencies. Some of them are non-governmental voluntary agencies, and some, of course, are the big United Nations multi-national agencies. It would be reassuring for us all to hear the kind of conversations and discussions that have been taking place with those who have traditionally done this work about how best the role can be dovetailed, and how best it can be mutually supportive and effective.
Perhaps I may illustrate that by mentioning some questions that I have personally heard raised. First, among people who are in no sense negative about the armed services, who greatly appreciate the armed forces and armed services, they ask whether the services will not, inevitably, in the aftermath of the Cold War, he looking for a role. Finding a role is not necessarily quite the same as finding the most cost-effective way or the most relevant way of delivering a particular service— they do not necessarily coincide. There is some public anxiety around that point and it would be very good to hear the noble Earl's views on it.
Then there is the issue of neutrality. Some humanitarian agencies would claim that essential to their success in history has been the fact that they demonstrably have no vested interest in any party to a conflict; they are concerned about people in a situation, and it is that that has given them access, sometimes in 100GC some of the most difficult circumstances. Would that role be as available to the armed forces and how would the reserve forces play their part within that?
There is also the whole issue of the professional competencies involved in humanitarian work, relief work, and so on. Here, it would he very interesting to look in a little more detail at the arrangements that are being made between the reserve forces, the mainstream forces and the humanitarian and voluntary agencies about sharing competencies, learning from each other, and the rest.
I raise these questions because they are anxieties. On this side of the Committee we are very positive towards this Clause. It provides a very distinguished and exciting role for the armed services to play, and we wish it well. We would like to see it get off to the best possible start. Therefore to hear the noble Earl's thinking about some of these issues would be helpful.
§ Lord Callaghan of Cardiff
It is not for me as a transient and passing phantom in this Committee to inquire by what miracle the Committee finished at Clause 55 last Thursday. Suffice to say that it was very convenient. I just want to make one small, but I believe rather important, point arising from my discussions in South Wales. Clause 56 enables the Secretary of State to call out members of a reserve force for,operations outside the United Kingdom for the protection of life or property; or",as paragraph (b) says,for the alleviation of distress or the preservation of life or property in time of disaster or apprehended disaster".The short point is this. I fully understand the great enthusiasm of the non-governmental organisations to be useful in this direction. However, there is another side to this that is particularly concerned with the medical services. The three services have significantly cut back on medical staff and cover both at home and abroad in relation to regular medical staff, so the likelihood of them relying upon reservists to run operations such as the Gulf War is very much greater.
The National Health Service itself is under stress. In this country, hospitals and trusts are all working under great strain. If there is an humanitarian operation overseas and medical staff in this country are fully engaged in their hospital work, what will happen? It may be predicted, rightly or wrongly, that there may be some resistance to calling out people who are engaged on medical operations here to do humanitarian operations overseas. I just ask what the Government think about that.
I support what my noble friend Lord Judd said. I believe that this Bill is receiving a splendid reception— and I do not often pay compliments to the Ministry of Defence— because of the very great care that has been taken in its drafting and the detailed consultations that have taken place. People feel that local opinion has been taken into account, and that is especially right because of the splendid work volunteers do in the Territorials, which is never recognised. It comes only second to the work being done by your Lordships in this Committee, who are spending so much time on it.
101GC Perhaps I may suggest that the Minister has another word with the local organisations and especially with the hospital trusts to see whether we can get a clearer definition and clearer criteria as to how to balance the requirements of restricted medical staff here and a situation arising when the services may require them.
§ Lord Bramall
The noble Lord, Lord Callaghan, has a very, very real point. These reserve army officers have to come from the health service. Although for a general war the health service may be prepared to let them go, there is a great reluctance, when it is so hard pressed, to do so for humanitarian operations or situations such as Bosnia. It is absolutely right that there should be a capability to call up reserve officers. But it demonstrates the great danger of running down the regular medical services to the extent that has happened. There will be a clash of priorities, as I see it.
§ Lord Craig of Radley
Perhaps the Minister can help the Committee by outlining who has primary call on individuals or medical servicemen in the National Health Service who have a reserve responsibility. It is not clear to me where the priority would be in a conflict of the sort described by the noble Lord, Lord Callaghan. Indeed, as the Minister will recall, at the time of the Gulf War we had to call out a number of National Health Service "medics", many of whom, having set up their field hospitals, were held there against the day when operations would start but at the expense of National Health Services patients here in this country. We had problems involving a conflict of interest at times when there were many more medical personnel available in the services. One is left with a very unhappy feeling about how a situation such as that mentioned by the noble Lord, Lord Callaghan, would be dealt with.
§ Lord Redesdale
I support the clause, but I would like some information. The Secretary of State may make an order. I wonder under what circumstances he will make that decision. Will it be a cost assessment? As the noble Lord, Lord Judd, pointed out, NGOs already fulfil many of these functions and in many cases could do the job at far less cost than the regular Army. I speak of situations such as Rwanda where the Royal Air Force quoted a cost of transportation six times higher than that of private airlines and freight companies. I wonder on what grounds the Secretary of State would make the order and, if he did so, whether a cost assessment would be available for examination.
Where would the money come from? Would the Overseas Development Administration be asked, under any circumstances, to fund certain operations? And if so would the ODA be able to influence the decision of the Secretary of State over the resources to be used? I believe we have an amendment later concerning medical personnel. I speak from personal experience of the Gulf War in which my brother-in-law served. There was a very considerable problem, because he could not be given a specified date of return to his civilian job. It seemed that medical personnel were being kept for every eventuality. There should he a cut-off date. Perhaps the Minister can indicate whether that could happen?
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe)
I am most grateful to all noble Lords who have contributed to the debate on the clause. I am particularly grateful to the noble Lord, Lord Judd, for the warm welcome he gave to the inclusion of these provisions in the Bill. As he indicated, they are entirely new provisions, the purpose of which is to enable the Secretary of State to call out any member of any reserve force for peacekeeping tasks outside the United Kingdom and also for disaster relief tasks anywhere in the world. The increasing role of reservists in the capability of the services as a whole and, as he said, the enthusiasm of reservists to serve in these operations make this power wholly appropriate.
As with the other powers, call-out is authorised by an order. The order would cease to have effect on a specified date but not more than 12 months after it is made. The order's effect may be limited should there no longer be a requirement to call out reservists and the order may be revoked if there is no longer anyone serving under it. It is important to note that the Bill sets limits to the frequency and duration of call-out to nine months in any 27-month period. This period cannot be extended without the consent of the reservist in question.
The noble Lord, Lord Redesdale, asked about the circumstances in which the power might be used. The power to call out reserves for peacekeeping and humanitarian assistance overseas would be applicable, for example, to the recent and continuing suffering in Rwanda or to the current monitoring and support operation in Angola.
The use of reservists in disaster relief overseas needs little elaboration. I was asked about the criteria which would be adopted. We already deploy regular service personnel overseas in support of such operations. I believe it is only right that where reservists possess the relevant skills they should be able to be called out to assist their regular colleagues with the employment protection which the law confers. Normally, such operations— if they represent bilateral aid— are funded by the Foreign and Commonwealth Office, but it clearly depends upon under whose auspices the aid is offered. It could be under one of a number of banners. Reservists can bring civilian skills valuable in humanitarian operations that may not be available in the regular services at all. An example is the geotechnical expert deployed to Bosnia last year to assist in the search for new water sources for isolated communities and services bases.
The noble Lord, Lord Judd, asked about the relationship of the call-out of reservists under this power and the work of humanitarian relief agencies such as the Red Cross and others. Let me say— and I am sure your Lordships would ask me to speak on your behalf— that the courage and dedication of those who work for such agencies arc undoubtedly features of their work which we would do well to recognise more overtly. They do absolutely splendid work and are very often not praised enough, I believe, for the expertise which they bring to it.
103GC Our armed forces have worked successfully alongside voluntary bodies—for example, during famine relief in Africa— and I believe that co-operation has been extremely effective. If similar occasions arise in the future, then our armed forces, regular and reserve, will work alongside humanitarian agencies as the situation demands. Of course, each situation will be subject to its own appropriate plan. The introduction of this power will not lead to any change in our relationship with the voluntary agencies. I do not believe that that is either necessary or desirable.
The noble Lord, Lord Callaghan of Cardiff, made a valuable and pertinent point. We fully understand that the call out of medical reservists presents particular problems. However, we believe that for the types of operations envisaged under Clause 56 the level of manpower established for the regular services is sufficient. Indeed, that would hold for quite substantial deployments of all three services. It may be helpful to mention as an example that there are no doctors or nurses among the reservists called out for the current operations in Bosnia.
More generally, my department maintains close touch with both the NHS Executive and the trusts and also has contact with the BMA. In the course of the formal consultation exercise on the Bill many trusts and the BMA wrote in with their views. Some of the points they raised were similar to those put forward by employers in general. The provisions for exemption from or deferral of call out and for payments to employers will apply to the NHS trusts in the same way as they do to ordinary employers and will go some considerable way towards meeting their concerns. Perhaps I may say to the noble Lord that we shall make a point of consulting NHS interests before making the relevant regulations.
I hope that what I have said will serve to reassure the noble Lord, Lord Callaghan of Cardiff, and other noble Lords that we are sensitive to the needs of those NHS trusts which are employers of medical reservists. We recognise that the support of NHS trusts for the reserve forces cannot be taken for granted. Our national employers liaison committee is working hard to ensure that its message setting out the benefits to employers of having reservists on their staff gets through to the trusts.
I believe, as I have said, that this is a useful and valuable clause which will enhance the role of the reserve forces. I commend it to the Committee.
§ Lord Bramall:
Before concluding the debate on this important and vital clause, perhaps I may ask the noble Earl the Minister whether he is aware of the deep concern in the service medical services in the fields of surgery and anaesthetics there will not be enough medical expertise to be able to deal with the sort of situation that exists in Bosnia if it goes on for any length of time. I should like him to go back to the Ministry of Defence to make inquiries. My understanding is that in those two fields they are utterly reliant on the reserve forces. It may be very helpful to go back to the Ministry of Defence when there is a clash between the requirements of the forces and the requirements of the National Health Service.
§ Lord Judd
Before the Minister winds up, perhaps I may reinforce this point. We will all have been reassured by the terms in which the noble Earl has replied, but the whole debate underlines the fact that we have gone extraordinarily far in cutting down these essential services within the regular forces. I should like to have some indication from the noble Earl that he accepts and recognises this point.
This is coupled with another point which I think it is in order to raise in the Committee, although it is the other side of the coin. With market disciplines having been introduced into the National Health Service to the extent they have been introduced, flexibility has been eroded and the ability to meet unforeseen circumstances has been very much diminished. Everything has been reduced to the absolute bare minimum so that the whole problem becomes more acute.
In trying to further an excellent intention, the noble Earl is brought face to face with problems which both probably originate in the Treasury rather than in his own department. It would be good to hear him acknowledge the strategic issues that lie behind all this and to have him indicate that he may be able to address them.
I wish to make just one other point. I am pleased the noble Earl has said that he will consult, and that the ministry will consult, with the hospital trusts and so on. But I should like to hear him say at the same time that, as this very valuable new role for the service is developed, the Ministry will make a point of consulting with the humanitarian and voluntary agencies as a whole, not just in specific situations, but in the whole approach as to how the armed services can be best equipped and prepared to fulfil this role. There is a wealth of experience in those humanitarian agencies. We all know how these things happen and it will be a great shame if what could be a very fruitful and positive collaboration became a slightly uneasy one because of a lack of consultation and of a feeling of mutual involvement. Anything the noble Earl is able to do to foster that kind of spirit would be well worth while.
The noble Lord, Lord Judd, makes a very valid point. I am sure the services themselves would say that they do not have a monopoly of wisdom in such matters and that consultation with the voluntary organisations would only produce a better and more effective service wherever it is deployed. I gladly take that suggestion away with me.
If I may address the other concern that he covered and the concern that the noble and gallant Lord also poised. It is clearly true that there is no pool of unemployed doctors in the UK. One cannot pretend that there is. Indeed, in some specialities there is a shortage. The noble and gallant Lord mentioned anaesthetists in particular. I am certainly aware that there is a shortage of anaesthetists. We are trying to address that. Of course the problem cannot be solved overnight, but I understand that that particular problem is a very long-standing one indeed. There are always shortages of some specialism or other. What we have to do is to ensure that our planning takes account of that.
105GC In the circumstances that we are in, holding a higher proportion of trained doctors in the regular services would merely serve to exacerbate the shortage of doctors in civilian life. If a crisis arises, we must, as I am sure the Committee will agree, ensure that our services have full and proper medical support. In some circumstances, that will require the call-out of reservists. Such call out will inevitably have an impact on the NHS, but we believe that within the context of the NHS as a whole it should not have an unmanageable impact. There may, of course, be localised difficulties and we will discuss them with the Trusts concerned. Bear in mind that the exemption provisions in Part VIII of the Bill do provide a formal channel for such concerns to be aired if ever there is a real need to do so.
I readily acknowledge that there are shortages, but not in every discipline by any means. I hope the Committee will be somewhat reassured by the fact that our planning has been very detailed and thorough in this regard.
§ Lord Callaghan of Cardiff
I do not wish to abuse the indulgence of the Committee, but I must say that my noble Lord's second answer did not reassure me as much as his first answer did. I wish he had left it at the first. What he has to avoid is a feeling which I am not able to comment on, but I quote: "that Reservists were being called out for peace keeping, humanitarian and disaster relief operations which should perhaps more properly be performed by Regular Forces, i.e. the Reservists were being used as a cheap substitute for Regulars who have now been made redundant." If that impression is widespread—and I am not able to say whether it is or not—then he really has a problem to overcome it. Does not this debate really amount to this: that the regular forces in this particular area, the medical services, have been run down too fast, and that there ought to be a small increase perhaps in the number of people serving in the regular forces on the medical side so that the dilemma which will undoubtedly arise will be avoided.
Let me simply say two things. First, a point I made at the Second Reading was that calling up reservists is not a cheap option. It certainly is not a back door route to filling a gap that may have been left by the run down in the regular forces. It is in many circumstances an expensive option. Even if that were in the Government's mind, which it is not, it would he a very expensive thing to do.
Because it is a cheap option if you regard the reservists, as I am sure your Lordships all do, as an insurance policy against severe contingencies. So long as we have reservists, there ready and waiting if we need them, it is an extremely cost-effective option for the nation; but clearly, once they are deployed, they become more expensive.
The second point I simply repeat for the benefit of the Committee is this. Bosnia, and the deployment of our forces there, represents the largest single 106GC deployment of NATO forces since the Second World War. Despite that, we have not felt it necessary to call out any medical reservists at all, either doctors or nurses. We have sufficient in the regular forces for our needs.
§ Lord Bramall
It is really not fair to say that, because this operation has been going only for about six weeks. The problem arises when the operation has been going for about one year, not when it has been going for about four to six weeks. That is the real problem which the Ministry of Defence must address.
§ Lord Williams of Elvel
If I may say so, there is also a secondary problem which my noble friend Lord Callaghan raised. It is not necessarily a question of military operations; it is humanitarian operations which are important. If the feeling were to get around that NHS doctors, surgeons and anaesthetists were being used for humanitarian operations abroad when they were fully occupied with humanitarian operations in the United Kingdom, that would be bad indeed for morale in the NHS.
I take the noble Lord's point, but clearly we would always look first for volunteers rather than for those who perhaps were being wrested unwillingly from their place of employment. These are very pertinent matters to the consultation that we shall undertake on the regulations. I believe that the points that have been made in the debate this afternoon will be most informative as we conduct that consultation. I hope that, once the regulations are formulated, noble Lords will be considerably reassured about the precise way in which we intend to implement them.
Clause 56 agreed to.
§ 4 p.m.
§ Clause 57 [Maximum duration of service on call out under section 56]:
Lord Williams of Elvel moved Amendment No. 36:
Page 32, line 6, leave out ("9") and insert ("6").
§ The noble Lord said: I beg to move Amendment No. 36 standing in my name and that of my noble friends Lady Turner and Lord Judd. We come here to a central point in the whole Bill: the length of service required under a general call-out order. During the Second Reading debate this point was raised by a number of noble Lords, including myself and the noble and gallant Lord, Lord Bramall. If a call-out order is issued in a particular situation, the question is how long should the reservist have to serve before he is released.
§ It is clearly in everybody's interests that there should be sufficient time, because once you demobilise the reserve force that has been called out, it is very difficult to remobilise it again. We understand that. On the other hand, if a reservist is in service beyond a proper time—whatever the proper time might be remains to be defined—that will give rise to great discontent, loss of morale and, in certain instances in history, even mutiny. I would be grateful if the noble Earl could tell the Committee exactly how the figure of nine months was 107GC arrived at, because in my submission it would be better if it were six months and a possible extension allowed for. I beg to move.
§ Lord Bramall
I should like to support the noble Lord, Lord Williams of Elvel, my noble comrade in arms on this amendment. Of course, I first declare my interest. I am president of the Greater London Territorial Auxiliary and Volunteer Reserve. All my contacts with volunteers have indicated that, unless there is a finite period for which people are going to be called out for these emergency operations, the volunteers will become disenchanted and it may persuade them to cease being volunteers.
I know there is argument about the exact length of time, but many of those to whom I have spoken feel that six months is quite long enough. Some have said that they think it is too long. I think anything under six months would make it very difficult.
I know you can argue that nine months is right, on the basis that the Territorials who were going to be called up might need some extra training before they were committed to a particular area of operations, and they might be joining a regular unit at the very beginning of its tour, which was a six month tour. If you put all that together it becomes much easier for the staff if the period is nine months. On the other hand, they may not require extra training. Many of the people being called up will be fully trained, and anyhow can have a certain amount of on-the-job training when they get there. Many of them will not be joining a unit that goes out there, and certainly will not be joining it at the beginning of the tour. Therefore, the fact that a regular unit goes out for six months is fairly immaterial.
I believe you have to look at it from the point of view of the bottom tier and very especially from the point of view of the employer. If you do go over six months you have a very great risk that both the employer and the volunteer will become very disenchanted and think that it is not something they wish to risk happening to them. Therefore, we will lose the whole value of the exercise, which at the moment has the volunteers' support, and what we will merely be doing is slightly on-the-cheap substituting unwilling volunteers for regulars who now no longer exist.
I believe the right time is six months. With six months it will be a successful scheme; with nine months it may be an unsuccessful scheme. I know this very well, as a commanding officer who has frequently had to go on unaccompanied tours, taking soldiers away from their families. In the old days we used to do four-and-a-half to five months. At six months there was a very decisive cut-off point when the man suddenly said, "If there is any more of this I don't want to know"; or, "If there is any more of this my wife will not want to know". Once you go from six to nine months, you get into a sea change, and I believe that the whole of this excellent idea may falter on this three-month period.
I support the noble Lord's amendment. I should perhaps remind the Committee of my interest, as I am a serving officer in REME TA. Clause 57 refers to Clause 56, which is purely for humanitarian aid and 108GC not a military operation, and therefore there should he limited requirements for extra training. Therefore soldiers could he sent out with fairly limited training to carry out specific tasks. If it is to support a six-month regular tour there should not he a problem with six months.
I have recently spent 11 months in Rwanda supporting the United Nations High Commission for Refugees. It was not a military operation; I was operating purely as a civilian. However, I was working very long hours, away from home, and I found that more than six months became very hard indeed. The first six or seven months were not a problem, but when it came to 10 months and being operational all that time, I found it very hard. I have no hesitation in supporting the amendment.
I am grateful to the noble Lord, Lord Williams, and other noble Lords for setting out their concerns on this part of the Bill so succinctly. The Government have considered carefully what maximum period should apply under this clause where there is need to call out a reservist under Clause 56. The services wanted to be able to call on reservists for up to 12 months in order to make an effective contribution to peacekeeping or humanitarian operations. During our public consultation on the Bill, however, employers expressed a wish to limit the absence of their reservist employees to six months for operations of that kind. A limit of nine months represents a compromise between the needs of reservists, employers and the services. It allows time for individuals to be accepted into service, to be trained for their roles and to perform a period of worthwhile service before preparations for their discharge begin. I think back to our debate last Thursday when, I believe, on both sides of the Committee we recognised the need for proper training in advance of deployment. Indeed, regulars also need pre-deployment training.
We do not have to hold reservists for the maximum period is there is no need to do so. That perhaps goes without saying. But a reduction in the period to six months, as proposed in the amendment, would place unacceptable limitations on the services and would prejudice this country's ability to make a sustained contribution to disaster relief and humanitarian or peacekeeping operations.
It is worth reminding ourselves that there is provision for flexibility in the Bill. If a particular employer or reservist is likely to suffer substantial disruption or hardship as a result of the call-out, he will be able to apply under regulations to be made under Part VIII of the Bill for one or more of a number of remedies. He will be entitled to seek exemption from call-out, deferral of call-out or an earlier discharge date or financial compensation.
I do not accept that the difference of three months represented by the amendment would mean the difference between success or failure of this power. We are confident that there is general acceptance of our 109GC proposals. I hope that on reflection the noble Lord feels more comfortable and that he will feel able to withdraw the amendment.
§ Lord Bramall
The noble Earl appreciates, I hope, that members of the regular forces are not sent away from their families for more than six months. I know of no emergency tour—whether it is in Bosnia or anywhere else—which lasts for more than six months. I hope that he will therefore consider the question of taking the volunteer away from his family for more than six months.
I take note of the noble and gallant Lord's vast experience in these matters. Naturally, what he has said will be noted and pored over in the Ministry of Defence. I do not believe that at this stage there is any more reassurance that I can give him. However, it is open to your Lordships to return to this matter at a later stage of the Bill and I shall in the meantime study what has been said.
§ Lord Williams of Elvel
I am grateful to the noble Earl for that last sentence because I believe this is something that the Government need to reflect upon.
If I may say so, the most telling point was the last point made by the noble and gallant Lord, Lord Bramall. If regular soldiers, sailors, and airmen are only sent away from their families for six months, why should volunteers be sent away from their families for nine months. That seems to be a very telling point. I hope very much that the noble Earl will bear that in mind when he re-considers this matter. Furthermore, my experience of these matters is that compromise solutions succeed in satisfying nobody; satisfying neither the employer nor the armed services. It is wise to come down on one side or the other because, if it goes wrong, then the Committee will have to accept that the noble and gallant Lord, Lord Bramall, with all his experience, will be proved right and the whole scheme will fall flat on its face. That is not something we want. I hope very much that the noble Earl will consider this and we will come back to it at a later stage in the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 agreed to.
Clauses 58 to 64 agreed to.
Clause 65 [Liability to recall]:
§ The noble Lord said: This is a very small amendment. Previously we included the Royal Fleet Reserve, the Royal Naval Reserve and the Royal Marines Reserve in the numbers that Parliament was going to establish. I wondered whether we had left something out here which should properly be in the clause. I beg to move.
There are good practical reasons why the number of persons who are recalled under the Bill should not count towards the numbers in the regular army or air force authorised by Parliament. Persons who 110GC are recalled arc deemed to be enlisted in the regular services. Parliamentary control of the numbers of the regular Army dates back, as my noble friend, Lord Mottistone reminded us last week, to the prohibition in the Bill of Rights on the maintenance of a standing army in times of peace, except with the consent of Parliament. Parliament annually fixes the maximum numbers of the armed forces through the Votes A procedure. Thus, if there were an emergency requiring recall in large numbers, the numbers authorised—
§ 4.15 p.m.
§ Lord Williams of Elvel
I am sorry to intervene at this early stage, but my amendment is directed to leaving out subsection (5) of the clause on the ground that the Royal Naval Reserve, the Royal Fleet Reserve and the Royal Marines Reserve could actually be included. At the moment it refers only to the regular Army or regular Air Force. Since we have amended that at the early stages of the Bill I would imagine that this might be something, without going through the rest of the clause, to which the noble Earl might address himself immediately.
I am grateful to the noble Lord. If he will allow me to conclude, I believe he will find that I have taken his point on board.
If there were an emergency requiring recall in large numbers, the numbers authorised might be exceeded, and in theory those recalled could not therefore be accepted into service until Parliament had made special provision for them. Noble Lords will appreciate the difficulty that that might create.
The recall powers apply only if it appears to Her Majesty's Government that national danger is imminent, a great emergency has arisen or in the event of an actual or apprehended attack on the United Kingdom. Parliament would then be recalled and would therefore be able to debate any concerns over the numbers of the regular forces. Clearly recall happens only in cases of national emergency and impending attack. I do not believe that the provisions of the Bill are inconsistent with that fact.
On the specific point that the noble Lord made, Parliament has not taken statutory control over the numbers of the regular naval and marine forces, and so they are not mentioned here. The persons concerned in Part VII are not members of the reserve forces but people who are recalled to the regular services.
§ Lord Bramall
I am extremely confused about this subsection. I do not know whether I should be supporting the amendment of the noble Lord, Lord Williams of Elvel, to leave out subsection (5), or whether it should be left in. This is partly because I do not understand what it means. There should not be any problem as regards the noble Lord's amendment because if there are two bottles—one of the reserves and the other of the regulars—and you take something out 111GC of the reserve bottle and put it into the regular bottle, one will go down and the other will go up; and presumably at the end the amount is the same.
What worries me—and this is why I am not sure whether I can support the noble Lord's amendment—is that we must be extremely careful that, if these people come across to the regular forces and there is suddenly a surge in regular recruiting, we might for a short time exceed the numbers laid down for the regular Army. Obviously the regular Army was not big enough; otherwise we would not have wanted the reserves in the first place. Therefore someone in the Treasury may start using the word "substitution" instead of "addition". And once there is talk of substitution, we are in dead trouble. It means that recruiting gets turned off and the unit which has accepted reservists is not allowed to recruit the number that it would have needed before it recruited the Territorials.
If subsection (5) allows the regular forces to over-bear for a short period while they have reservists with them, I would approve of it remaining in the Bill. Perhaps the noble Earl can explain exactly what it means. I am still not very clear.
Clearly there is some confusion here and I will do my best to elucidate. I hope that noble Lords will forgive me if I repeat myself. The individuals dealt with in this part of the Bill are not reservists; they are individuals who are civilians in peace and are not subject to statutory control at all. They are recalled to the regulars. That is very different from the reserve forces who are called out as members of their reserve force. That is why I emphasise that recall is only possible in the most serious crisis. I explained in my opening remarks why the clause was structured as it is to enable us to do this: because persons who are recalled are deemed to be enlisted in the regular services.
§ Lord Callaghan of Cardiff
On a different point, I am hopelessly out of date I know, but I was surprised to hear that Parliament does not have to give its assent to the numbers of men in the Royal Navy. When I was Parliamentary Secretary in 1950 we used to submit those returns every year. Do we no longer do that? If not, why not?
My understanding is that Parliament does vote a number, but there is no statutory provision to oblige it to do so.
§ Lord Williams of Elvel
I am grateful to the noble Earl and all who have participated in this debate. I take it, in the light of our previous discussions in Committee about the powers of Parliament to set the numbers of reserve forces, that if and when the Armed Forces Bill comes before your Lordships from another place that may be an argument we will need to have about the regular forces. Were this Committee, or both Houses, to decide that the view of my noble friend Lord Callaghan 112GC is liable to he set into an Act, then this subsection would be amended accordingly. Am I right in thinking that? I imagine I am.
Obviously I have not had an opportunity to consult the lawyers, but I would imagine that what he says is correct on the supposition he makes.
§ Lord Williams of Elvel
This has raised a number of interesting and rather complicated issues. I propose to the Committee that we study rather carefully what the noble Earl said, and, if necessary, come hack at a later stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 65 agreed to.
Clauses 66 and 67 agreed to.
Clause 68 [Recall for national danger, great emergency or attack on the UK]:
Lord Judd moved Amendment No. 38
Page 38, line 21, after ("Majesty") insert ("on the advice of the Secretary of State").
§ The noble Lord said: I beg leave to move Amendment No. 38 standing in the names of my noble friends Lord Williams of Elvel and Baroness Turner of Camden and myself. It may be for the convenience of the Committee if I speak to Amendment No. 39 at the same time.
§ We have debated both of these issues already in our considerations. These amendments are designed to clarify the situation. Under Clause 68(1) Her Majesty would make such an order on the advice of the Secretary of State. So that everybody knows where we stand, it is probably just as well to say so in the Bill. We hope that the noble Earl will now feel able to accept that point.
§ On the point in Clause 68(10), it is of course the issue on which we finished our last day's proceedings in this Committee. The simple point is that it does not deal with the issue of what would happen if we were in the middle of a General Election. Therefore, to include "if not dissolved" covers the point, although it does not leave us any the wiser as to what would happen if we were in the middle of a General Election. It would be very helpful if at some stage we could hear the noble Earl's views on that. I beg to move.
Perhaps I may deal first with Amendment No. 38. The amendment would not make any change to the current position. By convention Her Majesty would not act in these circumstances, except on the advice of her Ministers. If the noble Lord cares to look at Clause 68(9) he will see that a recall order must in any event be,signified under the hand of the Secretary of State",so that in practice that gives effect to the sense of his amendment. I hope the noble Lord will agree with me that the amendment is unnecessary.
Turning to Amendment No. 39, as the noble Lord indicated, we debated around this subject at some length last Thursday. As I said then, in theory if Her Majesty were obliged to make a recall order while Parliament was dissolved, then it is true there would be no 113GC Parliament to which the making of the order could be reported. But Parliament would not be dissolved without a date being fixed for the sitting of a new Parliament, so it is most unlikely that there would be any substantial interval which would delay reporting the making of the order.
As I said last week, it may also be fair to imagine that we would not be subjected to a national danger or a great emergency without having some warning of it. In those circumstances one presumes that Parliament would not be dissolved.
I say again that I think the problem envisaged by the noble Lord is perhaps more apparent than real. I shall nevertheless reflect on the problem he has posed, as I promised that I would, and if there is any further comfort I can give him, perhaps I may write to him between now and Report stage.
§ Lord Judd
I thank the noble Earl for his response. I am glad to see there is no issue of principle between us. It seems to me that, while of course I hear what he says about the conventions, for everyone reading the Bill and understanding it, it would be clearer to make plain that Her Majesty acts on the advice of the Secretary of State rather than just to suppose that everyone reading the Bill has constitutional knowledge and information which would cover that point. It is not a major issue, but in a Bill which, as my noble friend Lord Callaghan said, has been drafted with so much care and attention to detail, it is just a pity that this point has not been covered.
On the second point, if the noble Earl will forgive my saying so, I notice that we return to the language of "We presume that things will be in such a fashion or not in such a fashion". Presumption is not a very strong mode of thought in the drafting of legislation. It is much better that legislation should cover foreseeable eventualities, even if they are not very likely. As I always tremendously enjoy receiving letters from the noble Earl, because I find they are written with so much care and attention to detail, I very much look forward to seeing a letter from him on this point before we move forward to the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 39 not moved.]
Clause 68 agreed to.
Clauses 69 to 71 agreed to.
Clause 72 [Period of service and release]:
On Question, Whether Clause 72 shall stand part of the Bill?
§ Lord Williams of Elvel
I should be grateful if the noble Earl could clarify something. As I understand the position—I may be quite wrong but I raise the matter for clarification—there seems to be a maximum period of service for a person who has been accepted under a recall order into the regular forces. Is that the case or is it still the nine months which applies to reservists?
Clause 72 provides that "on release", in the case of officers, and "discharge", in the case of men, 114GC the individual will cease to be a member of the regular service to which he was recalled, and will revert to being a civilian. If he is under the maximum age for recall, he will remain liable to be recalled again, subject to the limit on the aggregated service that can he required within a six-year period, set out in Clause 69. Subsections (3) and (4) permit those whose acceptance into service has been delayed through no fault of their own to be treated as if they had reported earlier than they did. Subsection (5) permits the trial by court martial of a person who would normally be entitled to be released or discharged for an offence committed while he was subject to service law.
The noble Lord asked me a specific question. He said that he could not see where there was a maximum period of service specified for those subject to a recall order. Clause 69(2) sets out the limit as three years in any six and Clause 69(5) permits extension to five years in six. I am not sure whether that answers his point fully but I hope it does.
§ Lord Williams of Elvel
Am I right in thinking that under Clause 69(2), to which the noble Earl referred, the maximum is three years? Is that right?
Yes, that is what I said. I believe I read out a wrong reference. It is Clause 69(6), which permits the extension to five years in six. In subsection (8) "relevant service" is defined as being within the six years immediately preceding the day on which a person's current service began. I believe that not only is there a limit but it is quite clearly set out.
§ Lord Williams of Elvel
I do accept that and I am grateful to my noble Earl for pointing me to the clause where it appears. If I may just extend the discussion a little, who are these people who leave the regular forces, become civilians and then are recalled? Have they engaged in any contract to do so? That presumably is the case.
The people concerned are defined in Clause 66. As the noble Lord will recall, up to now they have been defined in terms of their pension eligibility. We have changed that under the Bill. As he will see, Clause 66 lists the categories of people who may be liable to recall under Part VII.
§ Lord Mottistone
I was liable for recall up to the age of 55, and beyond if I insisted.
Clause 72 agreed to.
Clause 73 agreed to.
Clause 74: [Exercise of functions by authorised officers]:
Lord Williams of Elvel moved Amendment No. 40:
Page 42, line 35, leave out from ("Council") to end of line 37.
§ The noble Lord said: This is again a very simple amendment. The intention is to obtain clarification on how the Defence Council shall choose the particular officers. I should be grateful if the noble Earl could tell us a bit about that. I beg to move.
The noble Lord, Lord Williams, has asked me to clarify the nature of the delegations set out 115GC in this part of the Bill. I am sure that he needs no convincing that delegation is essential to the efficient and effective working of the armed forces and this is reflected in the Bill. It is essential that the Secretary of State should be able to delegate some or all of the functions given to him by the Bill and desirable that he should be able to do so directly, without the necessity for him to go through the Defence Council in every instance. That would be time-consuming and it would not offer any additional safeguard. At the same time, the ability to delegate the relevant functions totally to the Defence Council confers a very valuable flexibility.
The normal procedures for such delegation are simple. They are that the officers authorised to exercise the relevant function are clearly described. They themselves would either be given written authorisation, or the fact that they were so authorised would be reflected in written instructions, or both. Such delegations of responsibility are commonplace throughout the armed forces and work well.
I hope that in the light of what I have said, the noble Lord will feel happy that this part of the Bill has been sufficiently explained.
§ Lord Mottistone
Would Mr. Winston Churchill, as he was when Minister of Defence in the last great conflict of the Second World War, have ever wanted to go through the War Office or the Admiralty before he appointed somebody? He caused a great deal of trouble by appointing people direct but, on the whole, he would never have put up with it. This is a very important inclusion to this Bill to make sure that we are not too hamstrung when we have decent leaders.
§ Lord Williams of Elvel
I am not sure that the noble Lord, Lord Mottistone, has quite grasped the point that am trying to make.
I am grateful to the noble Earl. That is a useful expression of what the Government's intentions are in the matter and who can do what, and it is exactly what I wanted in moving this amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 74 agreed to.
Clauses 75 and 76 agreed to.
Clause 77 [Individual exemptions etc. from call out]:
On Question, Whether Clause 77 shall stand part of the Bill?
§ Lord Judd
I should like to say just a few brief words on Clause 77 and it may be for the convenience of the Committee if I speak also to Clause 78.
We need not detain the Committee for long. Simply put, these are two very major clauses dealing with individual exemptions. It seems that what this Bill is about is formalising the situation as it covers everybody, and in moving into the realm of individual exemptions all sorts of misgivings could perhaps unnecessarily arise as to what this is all about: what sort of arrangements will be made to enable certain individuals, and which individuals, to be freed from the obligations which fall upon others. It is a question of justice not only being 116GC done but being seen to be done. I am sure that even from those few words the noble Earl will understand the point that I am making and I look forward to his reassurance for the Committee.
Clause 77 provides for regulations to be made permitting an individual or his employer to apply for the individual to be exempted from call-out or to have his liability to report deferred. If he has already been accepted into permanent service, the clause also provides for the individual to be released. The clause permits regulations to be made covering the call-out of individuals under Parts IV, V and VI of the Bill. Those liable to recall under Part VII are dealt with in Clause 78.
We recognise that an individual or his employer may find that call-out occurs at a particularly inconvenient time. The provision of regulations enabling reservists and employers to seek deferral or exemption from call-out has therefore been widely welcomed.
The noble Lord expressed misgivings about the type of situation that might be covered by regulations. I believe that there are likely to be a variety of reasons why an individual may seek deferral or exemption from call-out. For example, an employer might find that losing a key skilled employee at a particular time could have an adverse economic effect on the business; or a self-employed reservist might find that his or her absence from the business could result in serious damage to it. There might also be compassionate reasons for exemption or deferral, such as the serious illness of a close relative, the care of children or of an elderly parent, where no other arrangements can be made for their care. Each situation might give rise to exemption or deferral, as appropriate.
It is important to remember that the Bill requires (in Clause 80(5)) the Secretary of State to consult before making regulations under this clause. We regard such consultation as essential to the success of the regulations.
§ Lord Judd
May I just make the point to the noble Earl that, as much as in any other part of the Bill, it will be tremendously important here that the regulations are well understood and transparent because it is just the kind of minefield into which inadvertently public opinion can move: "Why was so and so granted an exemption when so and so was not?". "What was the pull that this particular employer had with the Minister or with the department as distinct from that employer?", and so on. The regulations must be very clear and very much above board so that everybody knows what their rights are and what the opportunities are; the kind of illustrations that are given will be very important.
I am sure that the noble Earl will have taken on board our anxieties on this score. In the expectation that he will work with the department in getting this right, I think we should let the matter rest.
It is important, as I am sure the noble Lord will recognise, for the regulations to contain an element of discretion rather than they should attempt to lay down hard and fast rules for every case. If an 117GC individual is discontent with the way in which he or she has been treated, there is always a route to appeal through the tribunal.
Clause 77 agreed to.
Clauses 78 to 80 agreed to.
Lord Judd moved Amendment No. 41:
After Clause 80, insert the following new clause—
§ DISCHARGE ON GROUNDS OF CONSCIENCE
(".—(1) Applications by any person wishing on grounds of conscience to be discharged from all requirements to serve under the provisions of this Act will, in the first place, be handled by the force concerned.
(2) Applicants for discharge on grounds of conscience will be interviewed by a person or persons authorised by the Secretary of State and, if the case is accepted, will be discharged from all requirements to serve.
(3) If an application for discharge on grounds of conscience is not accepted under the provisions of subsection (2) the case may be referred to the Advisory Committee on Conscientious Objectors (ACCO) as appointed by the Lord Chancellor or, in the absence of such a referral, the applicant may directly appeal to the ACCO.
(4) In the case of a referral or appeal to the ACCO the decision of the ACCO will be communicated to the Secretary of State for approval; after approval the decision will be communicated to the applicant by the person or persons authorised under subsection (2).
(5) If the ACCO reject a referred application or appeal, the applicant must fulfil all obligations to serve and will be subject to all normal service discipline.
(6) An applicant whose application for discharge on grounds of conscience is rejected by the ACCO may re-submit an application if there is additional relevant evidence to be heard; any such resubmission will follow the procedures laid down in subsections (I) to (5).").
§ The noble Lord said: One area of our national life in which we can take great pride is the care and consideration with which we have for a long time treated genuine conscientious objection. All the amendment seeks to do is to make explicit in the context of the Bill what no doubt the noble Earl will tell us is implicit. In deciding to table the amendment, we had in mind the reality—I have encountered it not infrequently in life—that people can become genuine conscientious objectors having completed permanent military service. It is very important that people in that position should be treated in exactly the same way as those who registered their conscientious objection before they undertook any service whatever. It is in that sense that we look for reassurances from the noble Earl.
§ With the help of the department, the Library and others, we have sought to put into words what is the existing situation. There is, however, one point I should clarify. Subsection (4) refers to the fact that in the case of a referral or appeal to the Advisory Committee on Conscientious Objectors the decision of the advisory committee will be communicated to the Secretary of State for approval. That is perhaps a slight change in emphasis, but I hope that it is acceptable. At present, I understand, the decision is in theory the Secretary of State's but there is no case on record of the Secretary of State ever having rejected the advice of the advisory committee. We are simply seeking to accept the 118GC convention which has developed and put it into words. I look forward to hearing that the noble Earl accepts the amendment.
§ 4.45 p.m.
§ Lord Redesdale
I support the amendment, especially in the case of those who have been recalled. As mentioned earlier, the time limit can be up to six years. It has been the experience of those organising Army exercises that when they have tried to contact people for recall many former soldiers showed little willingness to serve again and no longer felt the same as they did when they were actually serving. In six years, a person can change a great deal. It also seems that these people would be called up only as a very last resort and that after six years their military skills would be slightly rusty. If they have changed their views, this amendment would be helpful.
Clearly, we are dealing with an important and sensitive area. However, we do not believe that it would be sensible to make specific provision in the Bill for conscientious objectors, if only for the reason that any new arrangements would also have to consider the regular forces. I do not believe that there is benefit in having statutory provision for conscientious objectors. We have long-standing arrangements for such situations which work well. A reservist has the right to appeal to the Advisory Committee on Conscientious Objectors. A member of the reserve forces who is called out and wishes to submit a plea of conscientious objection to his military service obligation has an established procedure which he can go through. He must submit a written statement of his reasons, supported by at least two statements from referees who know him well. These documents form the basis of an application for exemption from military service and are sent to the appropriate service authority. The applicant's case is then forwarded to the ACCO for consideration. Where the ACCO supports the application for conscientious objection, the application to resign or be discharged on the grounds of conscience will be granted and the individual, if a member of the regular forces, will cease to have any effective reserve liability. If the ACCO does not uphold the individual's application, then he will be informed that he must continue in service.
I believe that these arrangements, which are long-standing, work well. They are very similar to what is proposed in the noble Lord's amendment. Therefore, in the circumstances, I do not believe there is anything to he gained by seeking to put this kind of provision on the face of the Bill.
§ Lord Judd
I am grateful to the noble Earl. He has made very plain that he understands the procedures well and that he is determined that they shall operate in this context as in any other. With those assurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 agreed to.
119GC Clause 82 [Payments to individuals in respect of call-out or recall]:
Lord Redesdale moved Amendment No. 42:
Page 48, line 18, leave out from first ("payments") to end of line 19.
§ The noble Lord said: The purpose of this amendment is to take away what we believe is an onerous burden on members of the Territorial Army. Under the terms of the clause, the Secretary of State is given power to make payments for financial loss. I do not see why, if the claim is justified, the soldier is later asked to make a detailed analysis of what he spent the money on. That seems slightly harsh.
The noble Lord, Lord Redesdale, has expressed his concern about this part of Clause 82. In fact the wording of subsection (3)(c) is designed to be an important safeguard to ensure that payments made under the scheme are applied for the purposes for which they are awarded. The amendment—although I realise it is a probing amendment—were it to be accepted, would remove that safeguard. The requirement to say how the money has been used relates solely to payments towards the provision of pensions, allowances or gratuities.
I do believe that it is right and proper that the Ministry of Defence is able to satisfy itself that the money has been used for the purpose for which it was given. I am sure that reservists themselves will understand the need for that type of safeguard.
§ Lord Redesdale
I thank the noble Earl for his reply. As long as it is treated in the manner in which he describes, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 82 agreed to.
Clause 83 [Payments to employers etc. in respect of call-out or recall]:
On Question, Whether Clause 83 shall stand part of the Bill?
§ Lord Mottistone
I was approached over the weekend by a lieutenant-colonel from Scotland, who is a Territorial officer of 30 years' service, saying that he was not happy that Clause 83 gives sufficient encouragement to employers to release people for the purposes laid down in the clause. He proposed two additional subsections, which he has since put in the post to me. On reading them with my noble friend the Minister, they seem remarkably like subsections (1) and (2) of Clause 83. I am only speaking now because it is my intention to follow this up with the colonel before he disappears to Bosnia at the end of the week. I want to be quite certain that this is necessary. I have agreed with my noble friend that, depending on the outcome, I shall be writing to him for advice as to what might be done at Report stage, perhaps with a view to putting down an amendment to cover this particular point.
I am grateful to my noble friend for flagging up this issue and naturally I shall do whatever I can to clarify our position on the suggestions that my 120GC noble friend's acquaintance has put forward. I should naturally he delighted to correspond with him between now and Report stage on that point.
Clause 83 agreed to.
Clauses 84 to 91 agreed to.
Clause 92 [General power to make rules]:
Lord Williams of Elvel moved Amendment No. 43:
Page 52, line 3, leave out ("Secretary of State") and insert ("Lord Chancellor and the Lord Advocate").
§ The noble Lord said: I beg to move Amendment No. 43 standing in my name and that of my noble friends, and it may be for the convenience of the Committee if I also speak to Amendment No. 44. We are dealing here with reserve forces appeal tribunals, and in Clauses 90 and 91 we note the sudden appearance of the Lord Chancellor and the Lord Advocate. The appointment of a panel of ordinary members and the membership of tribunals will he decided by the Lord Chancellor and the Lord Advocate in their respective territorial jurisdictions, I imagine.
§ When it comes to making rules with respect to the practice and procedure to be followed on appeals to appeal tribunals, the Lord Chancellor and the Lord Advocate mysteriously disappear and the Secretary of State takes their role. I would have thought that the Committee would agree that, if those with the legal experience—the Lord Chancellor and the Lord Advocate—are to be involved in the appointment of members of the tribunal, at least they should be involved in the procedure of the tribunals, because it is the procedure of the tribunals that is going to determine a lot of what happens.
§ That is the point of Amendment No. 43 and I look forward to hearing from the noble Earl why the Government believe that it should be the Secretary of State and the Ministry of Defence that determine the procedure rather than those who perhaps are—dare I say it?—rather better equipped to do so than the Secretary of State.
§ Amendment No. 44 addresses the rather difficult question, which has indeed been addressed in public about various reports and inquiries that are in process, of whether the proceedings of the tribunals should be, could be or might be held in private as opposed to in public, and the representation of the parties. Your Lordships will be aware of inquiries which have taken place on a variety of matters, which have been governed by something known as the Salmon Rules as a result of the Salmon Commission. The recommendations of the Salmon Commission Were that the parties should be represented, there should be cross-examination and the possibility of examination by one's own lawyer.
§ This clause as drafted allows the Secretary of State to determine that that should not be the case, and I would argue that that provision is undesirable.
§ I believe that these tribunals should, in general, be held in public, and I hope that the noble Earl will agree with that. I do not necessarily insist that they should always be held in public. I would, however, tend to insist that the parties should always be allowed to be represented and that there should be no conceivable 121GC loophole which would allow the Secretary of State, the Lord Chancellor or Lord Advocate, or whoever is to determine the procedure of such tribunals, to prevent those involved being represented. I beg to move.
I turn first to Amendment No. 43. The noble Lord, Lord Williams, has expressed concern that the rules for appeal tribunals will be drawn up by the Secretary of State. The Secretary of State will be bound by Section 8 of the Tribunals and Inquiries Act 1992 to consult the Council on Tribunals before he can make rules for the appeal tribunals.
The noble Lord will, I am sure, he aware that the Council on Tribunals consists of not more than 15 nor less than 10 members appointed by my noble and learned friends the Lord Chancellor and the Lord Advocate. Members of the council and its Scottish committee are selected for their knowledge of the law and other relevant professional matters, and indeed their general experience. I note that the chairman of the council is the noble and learned Lord, Lord Archer of Sandwell, who is admirably qualified to serve in that capacity.
If, despite the scrutiny of the Council on Tribunals, Parliament is still not satisfied on the appeal tribunal rules, it can pray against the rules which will be statutory instruments subject to the negative resolution procedure. There is therefore effectively a double check on any rules made by the Secretary of State.
On the other point that the noble Lord makes in connection with the clause, although we expect that the appeal tribunal hearings will normally be held in public, it is important for the tribunal to be able to sit in private in appropriate circumstances. Examples might be where classified or commercially sensitive material may be produced or matters discussed which are intensely private in nature.
Paragraph (g) allows for the possibility of parties being represented by someone other than lawyers, for example. This is consistent with our intention that appeal tribunal hearings will be informal and inexpensive. I can assure the Committee that it is our intention to broaden rather than to narrow the range of persons who may represent appellants.
I trust that the noble Lord will agree that the interests of applicants will be well safeguarded and that he will feel comfortable in withdrawing this amendment.
§ Lord Williams of Elvel
I am most grateful to the noble Earl He is quite right in saying that my noble and learned friend Lord Archer of Sandwell is admirably qualified to adjudicate on these matters. I cannot think of anybody better qualified. However, it seems to me to be odd, in spite of all the safeguards that the noble Earl said are available, to transfer the responsibility from the Lord Chancellor and the Lord Advocate, in the case of appointment of members of a tribunal, to the Secretary of State in the case of procedures. I shall not press this matter too far because I understand that there are certain safeguards, but it seems to be a very odd type of arrangement.
122GC On the question of privacy, I conceded the point—I hope the noble Earl agreed—that there may be occasions when the tribunal has to be held in private because certain confidential information might be and had been made available. But I take the noble Earl's point—and I hope that he means it with his usual seriousness—that it is the Government's intention that these tribunals should normally be held in public. We take that as a ministerial statement of what we believe this clause to mean.
On the question of representation, I also take it that the noble Earl means that the Secretary of State will never say under paragraph (g) that nobody will represent the parties; that that will not be part of the rules of procedure which will be set out by the Secretary of State, but there will always he the possibility of representation; that what the noble Earl is trying to do is to broaden rather than narrow these arrangements and that there will always be the possibility of legal representation. I hope that I am right in saying that.
§ Lord Williams of Elvel
I beg leave to withdraw the amendment.
Amendment, by leave, withdraw
[Amendment No. 44 not moved.]
Clause 92 agreed to.
Clauses 93 and 94 agreed to.
Clause 95 [Failure to attend for service]:
[Amendment No. 45 not moved.]
Clause 95 agreed to.
Clauses 96 to 111 agreed to.
Clause 112 [Powers and duties assignable to associations]:
On Question, Whether Clause 112 shall stand part of the Bill?
§ Lord Judd
We thought it would be quite important, before this clause was endorsed by the Committee, just to dwell on its implications a little. As we understand it, the thrust of this whole Bill is to strengthen the central role of the reserve forces in the total defence effort. That is something which is happening, and this Bill is designed to make it happen as effectively as possible.
There is, of course, within the reserve forces and Territorials a tremendous amount of tradition which unashamedly is to do with the social ethos of the Territorials and the reserves, which is very important. It seems to us that in this particular clause, this coming together of the tradition and the new demands becomes quite acute.
In subsection (1) the clause opens with the statement,An association shall have such powers and duties connected with the organisation and administration of—and it goes on to illustrate how this would work.
In subsection (4) it is clear that,An association shall not have any powers of commandand I underline "of command",or training over any part of Her Majesty's forces".123GC That is an interesting inter-relationship. It is by no means an impossible relationship but it is an interesting inter-relationship.
If we then go back and look at subsection (2), perhaps I could just illustrate where it seems to us there may he room for reflection. In subsection(2)(a) it refers to,the organisation of the units of the Territorial Army and the Royal Auxiliary Air Force and their administration (including maintenance) at all times other than when training or on duty or when in permanent service".But then in (e) it goes on to deal with,arranging with employers as to leave of absence for training, and ascertaining, after consultation with the representatives of the main employers in the area for which the association is established, the times of training which having regard to their businesses are best suited to the circumstances of civil life".That is quite intriguing because it is the convenience of the business and the needs of the employers being given very high prominence over the demands of the service. Yet at the same time we are saying that the Bill is all about the reserve forces and Territorials becoming much more central to the organisation of defence. Perhaps we need to think about that and hear the noble Earl's reflections, because we can see possible contradictions there.
Paragraph (g) refers to,the provision of transport for the peace-time requirements of the reserve forces".Again, the thinking behind that would be interesting. Paragraph (h) refers to,providing accommodation for the safe custody of arms or equipment".That seems arguably very essential for operational requirements. Why this should be something within the powers of the reserve forces own organisation, as it were, as distinct from the mainstream organisation of defence, is not necessarily self-evidently clear. It is important to get the thinking behind these points on the record at this juncture so that we do not just endorse the clause but endorse it full-heartedly with the Minister's explanation of how it will operate a little more clearly on the record than the Bill itself makes possible.
§ Lord Bramall
I understand that the spirit behind the amendment of the noble Lord, Lord Judd, is one of seeking information rather than protest. I have already declared my interest but I think that the associations perform a very valuable role. The noble Lord, Lord Williams, has often mentioned the umbilical cord aspect of the reserve forces. I think the association can contribute enormously to that in establishing the roots of the reserve forces into the various shires, counties, boroughs and so on. I think it is very important.
I do not see much wrong with the drafting. There is one very quaint phrase about manoeuvres which I have not heard used since 1930, but apart from that it seems to me that Clause 3 and the various subsections put very clearly what the responsibilities and limitations of the association are. That is very important. I can see no great harm in that going in. I think there must be some recognition of the 124GC association, although there may be scope for minor drafting points to make it more explicit. I think that this meets the requirement.
§ Lord Mottistone
I strongly agree with the noble and gallant Lord, Lord Bramall. It is important that this is really an updating and not a very great change on Section 124 of the 1980 Act. I think its origins stem from Lord Haldane in 1908. The important thing about the territorial associations—the noble and gallant Lord also said this—is that over the past nearly 90 years they have proved themselves to be an extraordinarily strong and capable organisation for handling the Territorial Army reserves in this country. They have survived two major wars without anybody wanting substantially to change the kinds of things that are required of them. I think that the proof of the pudding is in the eating. Perhaps Members of the Committee opposite should reflect on the fact that there is nothing new here and nothing extra is required.
§ Lord Williams of Elvel
Does the noble Lord, Lord Mottistone, understand the procedure in this Committee? We are probing for information. The fact that we give notice of our intention to oppose that a clause stands part does not mean that we oppose the clause. We are having an exchange where we require and ask the Government for information. It is not that we do not appreciate the associations. The noble and gallant Lord, Lord Bramall, quite rightly pointed out that I said on Second Reading that the associations were part of the umbilical cord. I hope that we can get that straight so we are not always criticised by the noble Lord, Lord Mottistone, for opposing things to which we are not in fact opposed. If we want to oppose things, we will oppose them at the Report stage of the Bill.
Clause 112 specifies the powers and duties which may be assigned or transferred to associations to meet their responsibilities. As my noble friend, Lord Mottistone, has pointed out, the provisions in the clause represent an updating, if you like, of the provisions in the 1980 Act. Substantively and substantially, the provisions remain unchanged.
The main responsibilities of associations include the recruitment and welfare of the Territorial Army and Royal Auxiliary Air Force; the provision and maintenance of accommodation for the Royal Naval Reserve, the Royal Marine Reserve, the Territorial Army, the Royal Auxiliary Air Force and the Cadet Forces; and liaison with the civilian community, especially the maintenance of employer support for the reserve forces. Here, the noble Lord, Lord Judd, directed our attention to subsection (2)(e), and the watchword in connection with that part of the clause is "consultation". It is that liaison with the civilian community that the associations do so well. I believe that the subsection fairly describes that activity.
Subsection (2)(a) prevents the associations having any control over the organisation of units of the Territorial Army and the Royal Auxiliary Air Force when they are training on duty or in permanent service. That, again, reflects the current position.
125GC The noble Lord drew attention to subsection (4) which provides that associations should not have "powers of command or training". There is no need for them to have such power. The functions of the associations necessarily have to be distinguished from those of the chain of command. It would be very odd if the associations had powers which cut across that chain.
The local associations and their council continue to work hard at getting the message across, as does the National Employers' Liaison Committee. Events such as Exercise Executive Stretch, where employees of local businesses participate in a range of outdoor activities over a weekend under the supervision of the TA, and Bring-a-Boss evenings are two examples of how the reserve forces are promoting themselves to employers. Some problems, inevitably, occur from time to time and some reservists find it difficult to meet their reserve commitment because of pressure from employers.
The services are always considering further ways of adapting to the more flexible employment patterns that exist today, so that reservists can more easily meet their reserve commitment.
The Government greatly appreciates the support which the associations have provided to the reserve forces over the years. They have given enormous support to the process of consultation over this Bill and for that we are also grateful. We see no need to disturb what is a very satisfactory and effective relationship.
§ 5.15 p.m.
§ Lord Judd
I am grateful to the noble Earl. It is always valuable in these exchanges to have this unrivalled insight and experience from the noble and gallant Lord, Lord Bramall, and the noble Lord, Lord Mottistone. They inform our proceedings and will be on the record for future reference, which is therefore very important. We on the Opposition Bench are second to none in our admiration of the territorial and reserve forces. We shall not yield to the Government on that. Those forces have a powerful record in national life. They have been an important element in the whole social fabric of our society; we would not dream of suggesting otherwise. However, I suspect—and I say no more—that some of the issues referred to in the clause will re-emerge with the passage of time in one way or another. We are at a very significant moment in the organisation of the armed forces in this country. The relationship is not as it always has been. The noble Lord, Lord Mottistone, says there is nothing new. I am sure that he will not mind my saying that that is slightly our anxiety and we are in a new situation. More searching reflection on the implications of that new situation might have been helpful as a background to the wording and drafting of the clause.
It is clear that the main defence effort from now on will be centrally more dependent upon the reserve forces. There will be less flexibility within the regular permanent services and a more immediate demand for a critical role by the reserve forces. In the spirit of that development, clear lines of authority of command are 126GC most important. Any confusion about just what the association is able to look after and what others must look after needs to he dealt with.
We would not want to delay any further—we could not in any case under the conventions of this Committee—the passing of the clause, but we say in good faith that it contains a great deal that is of central significance to the implementation of the Bill.
Clause 112 agreed to.
Clause 113 agreed to.
Clause 114 [Accounts of associations]:
On Question, Whether Clause 114 shall stand part of the Bill?
§ Lord Williams of Elvel
Once again this is a request for information from the Minister. We are dealing here with the accounts of associations. These will be made up in a manner to be specified in future regulations. Would the Minister be good enough to give us some idea of what the regulations will say? Will they allow associations to accumulate reserves? Will they specify the ring-fencing of certain activities that are not related to the matters discussed in Clause 112? Will they provide for auditing? Will they provide for who should audit and in what form the accounts should be set out? I should be grateful if the noble Earl could give us some idea of what is proposed. As a specific question, will the form of the accounts be approved by Her Majesty's Treasury?
This clause spells out the requirements for auditing the associations' funds and reproduces Section 126 of the Reserve Forces Act 1980, which is to be repealed. It requires associations to make up accounts and to have them audited annually in accordance with regulations. Copies of the accounts and the auditors' report are required to be sent to the Defence Council or as directed in regulations. The requirement for the submission of annually audited accounts and for copies of auditors' reports supports the MoD's own accounting procedures.
The day-to-day management of TAVRA funding is the responsibility of the Command Secretary HQ Land and the audited association accounts are sent to him for scrutiny. The noble Lord may be interested to know, as an aside, that the TAVRA regulations require public and private funds to be identified separately in association accounts, and these provisions are in practice applied in the accounts.
§ Lord Williams of Elvel
I am grateful to the noble Earl as far as we go. Do I assume that the public funds that he refers to are those which are specific for the purposes of the TAVRAs as defined in Clause 112 and that other activities which they may engage in should be properly regarded as private. Can he possibly say whether the Treasury would have any input in deciding the way in which TAVRA accounts are made up, and the method of audit?
§ Earl Howe: I would be happy to write to the noble Lord with further details on this but, in answer to his first question, associations only generate income from 127GC the element of the overall TAVRA grant relating to the general administration of the TA. Such income does not arise from the element of the grant allocated for TAVRA administration or the TAVRA estates.
Associations are able to invest this element of the TAVRA grant and are permitted, under TAVRA regulations, to use the income that has been generated for TA general administration purposes without prior approval from the Ministry of Defence. This income is treated as coming from a private rather than a public source as it does not come directly from the Ministry of Defence but rather from the institution with which the money has been invested. This gives flexibility to local decision-making, which the associations I believe greatly appreciate, and it is very much in line with the department's own arrangements for delegation of responsibility.
With that explanation, I hope that the noble Lord will be content, subject to my following up in correspondence the further points that he raised.
Clause 114 agreed to.
Clause 115 agreed to.
Clause 116 [Regulations as to associations]:
Lord Williams of Elvel moved Amendment No. 46:
Page 62, leave out lines 19 to 25.
§ The noble Lord said: I beg to move Amendment No. 46 standing in my name and that of my noble friends. I should be most grateful if the noble Earl could explain to the Committee what subsection (1)(h) of Clause 116 means. Having read through it several times I am afraid I cannot understand it. Perhaps he can explain it in simple English.
I confess that I, too, had difficulty with this part of the Bill and I am grateful to the noble Lord for tabling this amendment. If he chooses to press it, then I am prepared to accept it, because I can find little in the way of argument for retaining this paragraph in the Bill. In fact, it is a hangover from the 1907 legislation and, as far as I am aware, is no longer required.
§ Lord Williams of Elvel
I am very grateful to the noble Earl and, in the spirit of mutual bafflement, I beg to move.
On Question, amendment agreed to.
[Amendment No. 47 not moved]
Clause 116, as amended, agreed to.
Clause 117 [Compensation of displaced employees]:
On Question, Whether Clause 117 shall stand part of the Bill?
§ Baroness Turner
This clause relates to compensation of displaced employees and I have to say that I am not happy about this clause. Perhaps the Minister can explain precisely why it is necessary. Presumably the persons employed by the association are civilian employees. There is already legislation in place which offers some protection to employees in the, event of redundancy through wind-up or other causes. If there is a takeover or merger, what are commonly known as 128GC the TUPE regulations, dealing with the transfer of employment, apply and under them an employee whose employment disappears because of a transfer or merger, must be offered the same terms and conditions of employment as formerly.
The clause we are talking about allows the Secretary of State to make regulations which presumably could differ from the terms available to other civilian employees in what one might term "normal employment". There are, moreover, rights not to he unfairly dismissed, rights in regard to the minimum period of notice, and so on. The clause further states that regulations,shall be made by statutory instrument which shall he subject to annulment in pursuance of a resolution of either House of Parliament".Again, if we are talking about civilian employees, I question why that is necessary. I would not like anything to go onto the statute book which looked as though employees could he treated differently and possibly less well, just because they worked for an association. These associations can be wound up and perhaps merged with others, and there are specific protections for ordinary employees in such circumstances. While protection is not as strong as some of us would wish, at least it is there and it gives some sort of guarantee to civilian employees. No such guarantees exist in this clause. We seem here to be entirely dependent upon what the Secretary of State may, in his wisdom, decide to include in regulations to put before each House.
I would be grateful, therefore, if the Minister would tell us a little more about what is intended here because I would not want a worsening of conditions for such employees.
§ 5.30 p.m.
I have listened carefully to the points made by the noble Baroness and I am sure it would be helpful to her if, first, I give some background to the clause.
The clause substantially reproduces Section 129 of the Reserve Forces Act 1980. It provides statutory authority for regulations to be made governing the compensation of the employees of associations or the Council of TAVRAs who are made redundant or suffer a pay cut as a result of the closure, or proposed closure, of an association, or of a change in the activities or area for which an association is responsible. It also provides statutory authority for the Secretary of State to make payments.
I can reassure the noble Baroness that the provisions in this clause do not reduce the statutory rights of individuals. Indeed, I do not believe that the clause as drafted would permit the making of regulations which attempted to do so. TAVRA employees are covered by employment law in exactly the same way as other Crown Servants. Their terms and conditions of service are broadly similar to those of civil servants.
The noble Baroness may wish to know that the current regulations provide for, among other benefits, the annual payment of a sum of one-sixtieth of salary 129GC multiplied by the number of years of reckonable service, and this is payable from the date of redundancy until normal retirement age.
That the payments are more generous than the statutory minimum is shown by the fact that the regulations provide for any payment to be reduced by the amount of any statutory compensation payable.
I hope that, with those remarks, I have been able to reassure the noble Baroness about the purpose of the clause, and that she will feel completely comfortable that there is no question of TAVRA employees being disadvantaged by virtue of it.
§ Baroness Turner of Camden
I am grateful to the Minister for his explanation which will now go on the record. Certainly we on this side are happy with his assurance that the employees concerned will in no way he disadvantaged. In fact, from what he says it seems that they will be slightly advantaged.
Clause 117 agreed to.
Clauses 118 to 120 agreed to.
Clause 121 [Safeguard of employment for members of reserve forces]:
Baroness Turner of Camden moved Amendment No. 48:
Page 63, line 34, at end insert—
("( ) After section I, there shall be inserted—
§ "Obligation not to discriminate.
§ 1A.—(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another on the grounds that he is or may become a member of the Reserve Forces of the Crown—
- (a) in the arrangements he makes for the purpose of determining who should be offered that employment; or
- (b) in the terms on which he offers him that employment; or
- (c) by refusing or deliberately omitting to offer him that employment.
§ (2) It is unlawful for a person to discriminate against a person employed by him at an establishment in Great Britain, on the grounds that that employee is or may become a member of the Reserve Forces of the Crown—
- (a) in the terms of employment which he affords him; or
- (b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities to services, or by refusing or deliberately omitting to afford him access to them; or
- (c) by dismissing him, or subjecting him to any other detriment.
§ (3) Subsection (2) does not apply to benefits, facilities or services of any description if the employer is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or to a section of the public comprising the employee in question, unless—
- (a) that provision differs in a material respect from the provision of the benefits, facilities or services by the employer to his employee; or
- (b) the provision of the benefits, facilities or services to the employee in question is regulated by his contract of employment; or
- (c) the benefits, facilities or services relate to training.".").
§ The noble Baroness said: This amendment seeks to extend Clause 121 of the Bill, which contains provisions of the Reserve Forces (Safeguard of Employment) Act 1985. The Act deals with the rights of reservists who have been called up to full time service to be re-employed. The amendment proposes the incorporation of a new section in the 1985 Act, rendering it unlawful to discriminate in the field of employment on the grounds of membership, or potential membership, of the reserve forces.
§ Why do we think it necessary for that to he done? The Bill does not impose a statutory duty on employers to permit employees to join the reserves and to fulfil their training and employment obligations. We are advised that this is particularly true of, for example, NHS Trusts. Despite assurances that the majority of trusts make provision for their employees to participate in volunteer reserve forces training, it would appear there are trusts which are reluctant to allow, for example, key medical personnel to do so. Some trusts are issuing contracts which do not permit medical staff to join the reservists and it is feared that the competitive nature of the internal market in the NHS is likely to lead to an increase in the number of trusts which do just that. It is one example which has been brought to our attention by the BMA.
§ We hope therefore that the Minister will feel able to accept this amendment or, if he does not like its wording, that he will at least produce something rather similar in order to cover the set of circumstances which has been brought to our attention. I beg to move.
§ Lord Redesdale
I wish to speak to this amendment because I believe it goes to the heart of the Bill. The Bill will stand or fall in practice on how it is perceived, not just on the way it is drafted. It will be very difficult—I speak as someone who has attempted recruiting—to recruit people if they believe that they will be discriminated against in the workplace. The discrimination may not take place, but if people believe that they are under some disadvantage in joining the Territorial Army, it will make the job of recruiting that much harder. One of the purposes of the Bill is to increase retention in the Territorial Army. Without a degree of safeguard, people might feel unable to join.
I realise that the Minister may not wish to take the amendment as it stands, but I hope he can give some assurance that he will look into the matter.
§ Lord Craig of Radley
I accept the thrust of the amendment. I do not know whether I can accept the precise wording, which needs to be looked at more closely, because it is not clear to me that an individual could assert with complete confidence that his re-employment was turned down by an employer on these particular grounds. However, this is a point on which it would be fairly easy to see whether there was an alternative reason for not accepting the individual.
Nevertheless, the amendment raises one important point—one to which I referred earlier when speaking to Clause 56. Just exactly who has the final authority for requiring an individual to attend for full-time service if he is recalled? My reasons for saying this have been 131GC referred to earlier in relation to the "medics". There are ways in which an employer can excuse the individual who is employed and yet there are also statements in the Bill which, while they do not have a statutory obligation, would appear to have close to a statutory obligation in that the individual reservist must attend when he is called up by order placed by the Secretary of State for Defence. Perhaps the Minister can help us on that point?
I have listened with great care to the concerns expressed by the noble Lords and the noble and gallant Lord on this issue. I must stress that one of the aims of this Bill is to provide adequate safeguards for reservists and their employers. We have sought to do this, broadly, in two ways. First, we recognise that many employers are reluctant to face the loss of a valued employee for a period of some months for a period of call-out—the more so if the call-out occurs at an especially busy or important time for the employer. We have therefore introduced formal rights for employers to seek exemption or deferral of the call-out of their employees should this occur at a particularly critical juncture for their business. As your Lordships will be aware, the necessary powers are provided in Clauses 77–80.
Secondly, we recognise that there was concern that the effort of the employee called out needed to be replaced, and there are, correspondingly, powers under Clause 82 to 85 to provide financial assistance to employers whose employees are called out. For those dissatisfied with any claim, there is access to the new reserve forces appeals tribunals. All of these safeguards have been widely welcomed by employers and reservists alike. We know that some reservists have felt that their employers had some apprehension over their employees' membership of the volunteer reserve forces.
With these safeguards, we believe that we have removed most of the grounds on which an employer might reasonably raise objections to his employee joining the volunteer reserves. As the noble Baroness referred to it, I should add that reservists already have protection in the law in the Reserve Forces (Safeguard of Employment) Act 1985. In general terms it places a duty upon employers to reinstate the reservist employees after those employees have been released from a period of permanent service when called out or recalled. It also makes it a criminal offence for an employer to dismiss an employee on the ground that the employee concerned has a liability to call-out. Clause 121 effects various minor amendments to that Act so that reservists called out under the Bill will have the same protections as apply to those called out under the existing Act.
In the light of these safeguards, an anti-discrimination measure along the lines proposed by the noble Baroness is not appropriate for this Bill. Indeed, such a measure might well be counter-productive and make it more difficult, rather than less, for reservists to gain employment. We wish to work in co-operation with both individuals and employers. The Bill does provide a power for us to require the individual to attend when called out, and we would not wish to lose the ability to require that. That power is underpinned by Part X of the Bill covering offences.
132GC I hope that in the light of what I have said the noble Baroness will feel sufficiently reassured to withdraw this amendment, although naturally I have taken on board the points she has made and, indeed, points made from all sides of the Committee.
§ Lord Williams of Elvel
The Minister should be aware that he has not really covered the major point in my noble friend's amendment about potential members of the reserves. He has surely received representation from the British Medical Association, for instance, which says quite categorically that:Some NHS Trusts are issuing contracts which do not permit medical staff to join the reserves.There is nothing at present in the Bill, as I understand it, that would make such procedure illegal. There is also anecdotal evidence, according to the British Medical Association, that junior doctors are not prepared to join the reserves because they are fearful that attending training commitments may be held against their annual or study leave entitlement. It is these sorts of matters which the Bill has to address, and which indeed my noble friend's amendment does address because it would make such contracts as issued by some NHS trusts illegal.
I take serious note of that particular point, and I am more than happy to undertake to speak to my right honourable or honourable friends in the Department of Health to investigate further this practice and the extent to which it is happening. Quite obviously, I take it very seriously, but the key point is one I made earlier, which is that one cannot force anyone into becoming a reservist and, indeed, one cannot force an employer into accepting employees as reservists. It is much better to have willing parties on all sides. Nevertheless, we wish to promote the reserve forces and to gain the support of as many employers as we can. That is why I believe, especially in the light of our earlier debate on Clause 56, that it is important that the NHS in particular is fully on board.
§ Lord Redesdale
I should like to follow up this point. Considering that the NHS, which is a government body, can undertake this, what is to stop the practice becoming widespread among many civilian employers?
In theory, nothing at all. But as I say, it is our job and I believe the job of the associations, and indeed reservists themselves, to promote the value of the reserve forces, not only to the nation but to the employer. That is something that is often overlooked. The virtue of having employees on the payroll who also volunteer for service is one that can redound to the benefit of the organisation concerned by having better trained and better motivated employees.
§ Lord Redesdale
Perhaps I could take the point slightly further. We are really talking about the high-readiness reserve to a greater degree here and we are looking at very specialised skills—ones which are not easily replaceable and which will be of value. Obviously in certain situations, with certain conflicts, employers will look at the situation and say that this is obviously a dangerous area for losing employees and 133GC will write something to that effect into their contracts. What is to stop specific areas of employment doing that? I take it that there is nothing at all to stop this. In fact, this could backfire against the very purpose of the Bill.
I have noted the many concerns expressed by noble Lords today. I would like further time to investigate the extent of this problem and to take legal advice and, in the light of that advice, consider what further action might be needed.
§ Baroness Turner of Camden
I am grateful to the Minister for taking so seriously the points that have been raised. I noted what he said about the various safeguards. If, despite all the safeguards, discrimination is still taking place, or at least threatened, discrimination, it seems to us that there is a need to write something further on the face of the Bill. Certainly it seems that the BMA has very real worries about this issue. I am pleased that the Minister has said that he will look into that. But, as the noble Lord, Lord Redesdale, has said, it is not just the National Health Service; other employers might be tempted to follow suit. It goes much wider than the NHS. I would be very grateful if the Minister could also look at the wider implications of the clause.
As I said earlier when moving the amendment, we are not absolutely wedded to the wording. If it comes back with different wording but embodies the principles which we have all enunciated today, we would be very happy. Meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 121 agreed to.
Clauses 122 and 123 agreed to.
§ 5.45 p.m.
§ Clause 124 [Absence for voting]:
Lord Williams of Elvel moved Amendment No. 49:
Page 64, line 27, after ("Parliament") insert ("or of the European Parliament or in local elections").
The noble Lord said: Clause 124 specifically mentions,
voting at any election of a Member of Parliament or going to or returning from such voting
as an excuse for not being penalised or punished as a member of a reserve force. It seems to us that voting at European Parliament elections and at local elections should be included. I beg to move.
I take note of what the noble Lord said. I believe that he made a very cogent point. I am happy to look into the matter further, obviously without commitment, before the next stage of the Bill, and no 134GC doubt I shall be in touch with the noble Lord either by correspondence or by means of further debate at a later stage.
§ Lord Williams of Elvel
I am grateful to the noble Earl for that partial reassurance but I have to tell him that, should he not come back with some solution that is satisfactory to me and to the noble Lord, Lord Mottistone, we may feel it necessary to pursue the matter further at a later stage.
Amendment, by leave, withdrawn.
Clause 124 agreed to.
Clauses 125 to 130 agreed to.
Schedule 1 [Enlistment]:
Lord Judd moved Amendment No. 50:
Page 68, line 17, leave out ("well founded") and insert ("proved").
The noble Lord said: I beg to move the amendment standing in the name of my noble friends and myself. I hope the Committee will forgive us for delaying it on this matter but it seems to us that, with the greatest possible respect, the drafting may be somewhat loose. If within three months from the date on which the person signed the declaration he claims his enlistment is invalid it is not the claim that is important. It is whether or not his enlistment was valid or invalid that is the issue. Therefore, the words,
the claim shall be submitted as soon as may be to the Defence Council and, if the claim is well founded
are surely not the point of what the schedule is about. It is whether or not the enlistment was valid which is at stake. Our wording may not be ideal. We would not claim any complete and absolute insight into these matters. We feel, however, that to use the word "proved" would better meet the concern we have expressed than the words "well founded". We shall he very satisfied if, in the excellent spirit of concern and co-operation which the noble Earl has demonstrated throughout our deliberations, he is at least prepared to say that he will examine the matter before Report Stage.
The noble Lord has made a very interesting point. As he will he aware, the clause is intended to allow a recruit whose enlistment is invalid to be discharged either because the legal requirements of the Act were not complied with upon attestation, or for some other reason. The noble Lord suggests that the wording in the Bill is loose. I shall reflect on what he said and consider the matter between now and Report. I would just say that the effect of the word "proved" seems to raise doubt about the standard of evidence required in the kind of case likely to be involved. The sense of the phrase "well founded" is about right for the level of evidence that should be needed to satisfy the requirement. I am not convinced that substituting the word "proved" makes the matter any clearer. Does it mean "proved beyond reasonable doubt" or "proved on the balance of probabilities"? It seems to me that the current phrase is apt for what is after all an administrative rather than a judicial process.
I should perhaps add that equivalent provision is made in the case of the regular forces; for example, in Section 10 of the Armed Forces Act 1966 in the case of 135GC the Royal Navy and Section 18 of the Army and Air Forces Acts of 1955 for the Army and Royal Air Force respectively. The same phrase is used in that legislation. The issue therefore goes rather wider than this Bill and I believe that we should, if at all possible, seek to maintain consistency in this case.
I am grateful to noble Lords and, as I say, I shall reflect further on this issue.
§ Lord Judd
I am very grateful to the noble Earl and I would not want to die in a ditch on the word "proved". The noble Earl demonstrated that he has taken the point we are seeking to make. We are very glad that he will go away and look at it and I am sure that he and his advisers will find a formulation of words which covers the points that he is concerned about and meets the observation we have made. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Schedule 2 [Deserters and absentees without leave]:
Lord Judd moved Amendment No. 51:
Page 71, line 10, leave out from ("he") to end of line 13 and insert ("shall without delay bring him before a Magistrates' Court.").
§ The noble Lord said: In moving this amendment we are expressing our concern that the Bill is giving a tremendous amount of responsibility to a local police officer, and subjectivity might well become fairly clear in terms of different approaches by different officers. It is a significant matter. It is a question again, as I used the phrase earlier in our deliberations, of justice not only being done but being seen to be done.
§ On the whole, we on these Benches feel that it would he much better that, where a police officer is convinced that somebody is illegally absent from the reserve force, he should take that person before a magistrates court and for that court to be responsible for dealing with the matter. Otherwise, why have the provision for the magistrates court? Why not just let the police officer in any case deal with the matter expeditiously? It seems to me that if we have introduced the concept of the role of the magistrates court, it would be much better to have a procedure whereby absentees are brought before the magistrates court. I beg to move.
§ Lord Mottistone
In fairly long experience of naval discipline, I can tell the noble Lord that the Bill as it is drafted answers the problem much better. Whether the man is a reservist or a regular does not matter. It is much better that a serving sailor or soldier should be brought before his own justice in the first instance, because they really know how to handle it.
I shall never forget being the prisoner's friend when two of my sailors were arrested in Hull during the war when they were drunk and singing. They appeared the next day in the magistrates court and I went to defend them. They had a wonderful story about how they thought that everybody would like singing because it was rather dull in Hull. The Committee can imagine the sort of thing. The magistrate loved it. He said, "This is the best case I have had for a whole week. Not guilty." If those same people had been brought before our first 136GC lieutenant he would have tackled it in a much more sensible way and said, "Don't get so bloody drunk next time" and give them the normal punishment for that sort of offence.
Magistrates' courts cannot handle soldiers and sailors. Many of these reservists are ex-regulars anyhow, but even if they are not they pick up all the tricks and they would run rings round a magistrates' court, probably wrongly, for whatever offence, even desertion. Therefore I believe that to give both facilities is the right answer. If there is not a handy naval or military jurisdiction to put them into, they will have to he put before a magistrates' court. But that is only a second option, as is set out in the Bill.
§ Lord Judd
At this point the schedule is dealing with something rather more serious than simply getting drunk in Hull. It is being illegally absent. If we really were convinced that it would be better for such things to be dealt with by the service concerned, might it not be appropriate for the noble Lord to put down an amendment on Report eliminating the reference to a magistrates' court?
Our point is that to introduce the concept of a police officer deciding whether a magistrates' court has a role to play in this situation could be quite invidious. In parts of the country police officers might have a rather antagonistic view towards the local Bench. They might have had some failures in terms of cases they had brought before the local Bench of late and they might then decide "Well, we're blowed if we're going to put this before the magistrates; we're going to take this straight back to the service". It is giving a great deal of authority—subjective authority—to the individuals, the police officers, concerned. In that context we applaud the fact that the Government have emphasised the role to be played by magistrates' courts and we are therefore suggesting that this should be the norm.
§ Lord Mottistone
I shall not pursue this too far. However, with regard to desertion, I was in command of a destroyer going around Australia and we had three sailors who deserted, two of them because they fell madly in love with ladies of ill repute in the places the ship had visited. They were recovered by the Australian police and returned to us. We handled them in a sensible way. That was a very good answer for that sort of thing. The third case was different but I shall not bore the Committee with that now.
§ Lord Williams of Elvel Shame!
§ 6 p.m.
The noble Lord, Lord Judd, has raised an interesting point with this amendment. I acknowledge that at first blush the discretion allowed to a police officer might seem a cause for concern. However, if we study the context we can see quite readily that that discretion applies only in the case of deserters who surrender themselves to a police officer. The discretion is not given in the case of deserters who are arrested. Paragraph 2(4) of the schedule provides that they are to be brought before a magistrates' court in every case.
137GC The effect of the noble Lord's amendment would be simply to require even the most clear-cut case of a surrendering deserter to be brought before a court. It seems much better, I would suggest, to rely on the police officer to sort out the wheat from the chaff. However, it is interesting to note in this context that under Clause 98 someone who pretends to be a deserter or absentee also commits an offence.
This part of the Bill is exactly the same as that in Section 118(2) of the Army Act 1955 and the Air Force Act 1955. That is not just to make a point about drafting consistency because I imagine it would be difficult for the police to operate with different provisions according to the force from which a particular person is thought to have deserted.
I hope that those remarks will serve to reassure the noble Lord that in practice the provisions of the Bill should work effectively and that his amendment is not appropriate to those to whom this part of the Bill applies; namely, those deserters who surrender to a police officer.
§ Lord Judd
I thank the noble Earl for that reply. It may be the hour, but he has not, in all honesty, totally 138GC persuaded me of his argument. He has demonstrated that there is a difference in this schedule between a situation in which somebody is arrested and one where somebody surrenders himself. What he has not dealt with is our point that within this part of the schedule we are giving the police officer discretion—there are two options. Why has that been introduced? The noble Earl has not briefed us on the thinking that led to the introduction of the option. If the option is there, is that really a good thing to rest in the hands of any individual police officer?
However, at this stage of the proceedings, not least because of the conventions of this Committee on which we have all agreed, I will beg leave to withdraw the amendment and we will reflect on what the noble Earl has said. We will reflect rather carefully. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 2 agreed to.
§ The remaining schedules agreed to.
§ Bill to be reported with an amendment.
§ The Committee adjourned at three minutes past six o'clock.