- Commons Amendment
- 4:09 pm
- Motion A
- That this House do not insist on its Amendments 2 and 3 and do agree with the Commons in their Amendment 2A in lieu.
- 2A: Page 5, line 19, at end insert— “(1A) Subsection (1B) applies if the investigation was carried out wholly or partly in response to a request made by an individual. (1B) A report under subsection (1) must not include information which identifies the individual or enables them to be identified, except with their consent.”
- My Lords, in moving Motion A, I will also speak to Motion A1. I thank all Members, including His Majesty’s Opposition, the Liberals and others, for their careful and considered scrutiny of this landmark Bill. As we have all agreed, it is an important Bill, one that marks a significant step change for our Armed Forces and their families and delivers on a commitment upon which this Government were elected.At the consideration of Lords Amendments in the other place last week, the minor and technical government amendments were all agreed to. These were the amendments to fully implement the Delegated Powers and Regulatory Reform Committee’s recommendation to change the regulation-making power to define relevant family members from the negative to the affirmative procedure, and the amendment that was consequential on Clause 3. The noble Baroness, Lady Goldie, also raised concerns about anonymity. We listened carefully to the points she raised and brought forward amendments to address these concerns. I shall return to that later.This leaves only the matters of whistleblowing and anonymity, which are the issues before us today. The amendments tabled by the noble Baroness, Lady Goldie, were put to a vote in the other place and were both disagreed to. However, the Government had taken on board the important debates we had in your Lordships’ Chamber and proposed a significant amendment in lieu, to which the Commons agreed. This amendment picked up on the spirit of the noble Baroness’s amendments, and actually went further than her proposals in delivering concrete legal protections. However, noble Lords will be aware that an amendment to the Government’s Motion today has been tabled, offering amendments in lieu in place of the Commons amendment in lieu.Let me first offer some explanation on why the other place disagreed with the original Lords amendments on whistleblowing before addressing the specifics of the amendments now before us. While the amendments proposed by your Lordships chime with the spirit of the Bill, the contents did not offer any additional legal protections for anyone coming forward to the commissioner. This entire Bill is already designed to create a trusted and independent route for service personnel and their families to raise concerns about welfare matters that they may personally be affected by or that they observe to affect others.
- 4:15 pm
- The amendment proposed by the noble Baroness, Lady Goldie, seeks to replace the government amendment protections with another amendment. It would create a two-tier or two-class system for how individuals who approach the commissioner will be treated. The Bill was designed to carry out the manifesto commitment to give a voice and point of contact for anyone subject to service law and their families, so that any matters affecting welfare in the Armed Forces, and the lives of the families of the Armed Forces, could be investigated by an independent and trustworthy figure. The noble Baroness’s amendment would splinter this ambition, creating a further group of persons from among those already able to approach the commissioner, who are defined in the amendment as whistleblowers.
- We believe that the words “whistleblower” and “whistleblowing” may make some people hesitate to come forward. The Cabinet Office guidance—which has informed government departments and was also followed under the previous Government, including by the MoD in developing its “raising a concern” policies—recognises that language can put people off coming forward. We all know that those words have strong connotations and links in the public subconsciousness to exposing large-scale fraud or deep-seated corruption. Encouraging this language may lead to some serving personnel and their families feeling nervous about coming forward, and it may make them less likely to think of this as an appropriate route to raise the welfare matters affecting their daily lives and well-being.
- The noble Baroness may well refer in her speech to the fact that the term “whistleblower” is used elsewhere in the Armed Forces Act, as was pointed out in the other place. That is true, but it exists in that legislation only in the context of the service police. The provision that references whistleblowers allows the Secretary of State to replicate any relevant provisions in the Police Reform Act 2002 on police whistleblowers. The whistle- blowing regime set out in the Police Reform Act 2002 is significant, with 11 separate sections setting out what whistleblowing means and how it works in that specific policing context.
- Simply using the term “whistleblower” in the Bill does not import any meaning that may exist for it in different legislative contexts. Copying and pasting some of these provisions into the Bill does not replicate an entire whistleblowing regime or substantially change the powers of the commissioner to deal with a whistleblowing issue versus a general service welfare matter. We do not doubt that the noble Baroness, like every Member of your Lordships’ House, wants to build trust and confidence in the commissioner, but legislation is not a communications opportunity; it is the law and must be clear to those who have to interpret it.
- Putting aside the terminology, I ask your Lordships to consider the provisions themselves and the new proposals contained in the amendments. I referred earlier to a two-tier system: the normal process of just going to the commissioner and the whistleblower route. If the amendment were passed, the whistleblower investigations proposed would have the same scope as the current investigations’ powers but none of the additional powers of investigation. That is because the noble Baroness’s proposed new Section 340IC is not linked to new Sections 340IA and 340IB in the Bill.
- If passed, the consequence of that is if somebody goes to the commissioner under the whistleblowing route, it does not allow the commissioner to access sites to assist their investigation. It does not allow the commissioner to access information or documents to assist their investigation. It does not require the Secretary of State to co-operate, assist and consider any findings or recommendations. It does not require reports to go to the Secretary of State, to be laid before Parliament. Indeed, the scope is narrower since it applies only to people subject to service law, so it does not apply to family members and cannot be about terms of service.
- The commissioner would also need consent from the individual before starting an investigation constraining the commissioner’s independence and possibly leading to junior staff facing pressure to withhold consent. The anonymity protections the Government brought forward would relate only to investigations under this section. This would remove the anonymity protections the Government are proposing to include. With no investigative powers, no parliamentary oversight, narrower scope and constraining the commissioner’s independence, why would anyone, including the commissioner, want to use this route?
- Most importantly, the Bill is intended to provide a safe avenue for people to come forward with their concerns no matter how small or big they might seem to them at the time and for them to know they will be considered by a truly independent figure. We want people to feel secure and impowered to raise concerns.
- We have therefore drafted the Bill to be as broad, clear and inclusive as possible. Through our communications campaigns and guidance, we will make it clear that anyone subject to service law, and their families, can approach the commissioner to raise a general service welfare matter. What could be clearer than that? Why introduce a separate, parallel system without the same investigatory powers? Creating a differentiation between whistleblowing about a general service welfare matter and simply approaching the commissioner to raise a general service welfare matter adds a new level of complexity and confusion, which will make it harder, not easier, to navigate.
- There is unanimity of opinion within your Lordships’ House that we need to do more to protect anyone who wishes to come forward with a concern to the new commissioner. The amendment that the Government have brought forward and the other matters we have said we will take forward mean that we have listened to your Lordships’ House and acted on what noble Lords have said. However well-intentioned, we have very serious concerns about the noble Baroness’s amendments. I beg to move.
- Motion A1 (as an amendment to Motion A)
- Moved by
- Leave out from “3” to end and insert “, do disagree with the Commons in their Amendment 2A and do propose Amendments 2B and 2C in lieu of Amendment 2A—