Armed Forces Commissioner Bill

Baroness Goldie Excerpts

Consideration of Commons amendments and / or reasons
Wednesday 11th June 2025 Lords Chamber

Moved by

[Baroness Goldie]

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—

2B: Clause 1, page 1, line 15, at end insert—
“(aa) to investigate concerns raised by a whistleblower in relation to the welfare of persons subject to service law and relevant family members, and”

2C: Clause 4, page 5, line 12, at end insert—
“340IC Commissioner’s functions in relation to whistleblowing
(1) The Commissioner may investigate any concern raised by a whistleblower of which the Commissioner becomes aware (whether because the whistleblower has contacted the Commissioner or for any other reason) but only if the whistleblower informs the Commissioner, before the beginning of the investigation, that he or she consents to an investigation taking place.
(2) The Commissioner must, when carrying out an investigation under this section, take all reasonable precautions to ensure the anonymity of the whistleblower.
(3) For the purposes of this section and section 365AA a person (“P”) is a “whistleblower” if—
(a) P is subject to service law or is a relevant family member,
(b) P raises a concern about a person who is subject to service law,
(c) the concern raised by P relates to general service welfare matters (as defined by section 340IA(2)), and
(d) the concern raised by P does not relate to the conditions of service of persons subject to service law.
(4) After carrying out an investigation of a concern raised by a whistleblower under this section, the Commissioner may prepare a report setting out the Commissioner’s findings.
(5) A report under subsection (4) must not include information which identifies the whistleblower or enables them to be identified, except with their consent.””

[Baroness Goldie (Con)]

My Lords, having dealt with the technicalities of process, I once again thank all noble Lords from across the House who supported my amendments to the Bill on Report, and I thank all those in the other place who also gave their support.

Throughout the passage of the Bill, the Official Opposition have approached it in a constructive manner: we have challenged the Government when necessary, but we have also sought to be supportive. In that vein, I have tabled my Amendments 2B and 2C, in lieu of the Government’s Amendment 2A made in the other place.

In the debate on my initial amendments in the other place, the Minister for the Armed Forces said that the amendments,

“while well intentioned, are unnecessary because the Bill is already designed to provide a voice for armed forces personnel and their families outside the chain of command”.—[Official Report, Commons, 3/6/25; col. 188.]

Indeed, the noble Lord, Lord Coaker, has just repeated that argument. I agree that the Bill provides a voice for Armed Forces personnel outside the chain of command and that is fundamental to the role of the commissioner, but this does not mean that my amendment is either unnecessary or irrelevant.

All Governments go through a black cloud and search for a silver lining. I am handing the Government a silver lining on a plate, because with my amendments the Bill puts the Government and our Armed Forces personnel in a good place. Let me explain why. As I argued on Report, and my right honourable friend Mark Francois argued in the other place, “whistleblowing” is a recognisable term. It is recognisable in law, in the Police Reform Act 2002 and in the Armed Forces Act 2006. Most importantly, it is recognisable by the thousands of Armed Forces personnel who know exactly what whistleblowing means and who would benefit from this enhancement.

If Parliament has already deemed it appropriate to give the Service Complaints Commissioner a function to investigate concerns raised by whistleblowers about the military police, how can the Government argue that their new Armed Forces commissioner should not have a similar function? This is a question of consistency and fairness. This is not a two-tier system, as the Minister was arguing. I am offering a Rolls-Royce version of what is already in the Bill.

That is why I disagree with the Government in their Amendment 2A, which will place a duty on the commissioner to ensure that the reports do not contain any information which could be used to personally identify a person who requested that an investigation take place. This is a welcome first step. It is at least a tacit admission by the Government that the Bill as originally drafted did not go far enough in safeguarding individuals making a confidential disclosure. But it is just that: a first step. The Government’s amendment in lieu does not go far enough. It also does not accept the unique meaning of whistleblowing, as the noble Baroness, Lady Kramer, so eloquently stressed on Report. I thank her especially for her support.

I therefore propose a new amendment, Amendment 2C, as a reasonable compromise between what I have set out to do and what the Government have proposed. It seeks to insert a new clause which contains the same definition of “a whistleblower” as the original but with two important additions. First, in proposed new Clause 340IC(2) I have included a duty on the commissioner to

“take all reasonable precautions to ensure the anonymity of the whistleblower”

when the commissioner is investigating a whistleblowing concern relating to general service welfare matters. Secondly, in the spirit of constructive engagement, which I have endeavoured to reflect throughout the passage of the Bill, I have listened to the Government’s suggestions and included new subsections (4) and (5), which provide for the commissioner to produce a report once they have completed an investigation into a concern raised by a whistleblower, with a requirement that the report

“must not include information which identifies the whistleblower or enables them to be identified, except with their consent”.

As noble Lords can see, this new amendment therefore includes both my and the Government’s proposals for whistleblowing. I hope that the Minister can see that I genuinely want this to operate in the most effective manner. I hope, perhaps in vain, that he can support this improved amendment. His remarks this afternoon indicate the contrary. I have taken on board his previous reservations and sought to allay them.

Let us not forget how vital it is to improve the treatment of our service personnel. I have mentioned before the horrifying case of Jaysley Beck, who was sexually abused and tormented relentlessly before taking her own life. On Report, I referred to the BBC Wiltshire reports of the horrific accounts of alleged rape and sexual assault from three women. One of them was in the Navy, another was in the RAF and the third is still serving in the Army. Just last week, we saw the tragic case of Lance Corporal Bernard Mongan, who was found dead in his bedroom at Catterick Garrison in 2020. The inquest into his death heard that he was consistently degraded and undermined by his superiors, with a friend saying that bullying would be an “understatement”. Another friend told the inquest that communication is an issue and a failing—the system should have worked.

The system has not been working. It is not working. We have an opportunity to do our bit to rectify this. I hope that the House agrees and supports Motion A1. I beg to move.

[Lord Hardie (CB)]

My Lords, I have listened carefully to the noble Baroness’s response, but I wonder if she could help me to understand a point raised by the Minister. It appears from proposed new subsection (1) that if a whistleblower is involved with the commissioner, the whistleblower controls the investigation. The whistleblower can stop any investigation by the commissioner, even if the commissioner has information from other sources. Does the noble Baroness think that that is a reasonable approach?

--- Later in debate ---

We are legislating. If the amendment is passed, we create a two-tier system and we have the other problem that I just mentioned with respect to consent. I have no hesitation in accepting the point that the noble Baroness, my noble friend Lord Stansgate and everyone else has made: we all want the best for the commissioner and we all want the awful examples of bullying, sexism, racism and all the other things that a small number have participated in to stop. That is not the issue. The issue before your Lordships’ House is whether we pass something that is legislatively sound and gives the commissioner the powers that we want, in a way that is consistent with good practice.

[Baroness Goldie (Con)]

My Lords, I thank all who have contributed to this debate, not least the Minister, with his impassioned defence of the Government’s position. I shall try to deal with the individual points that have been raised.

The noble and learned Lord, Lord Hardie, asked a simple question: does the whistleblower control the process? As the noble Baroness, Lady Kramer, indicated, a whistleblower is indeed an individual, and implicit within that is the whistleblower’s right to withdraw consent if they become concerned. That is an inevitable consequence of an individual pursuing a complaint. What I am less clear about in that objection to the amendment is that, while at the moment an individual could complain to the Armed Forces commissioner under the terms of the Bill, I do not know what the commissioner would do if the individual suddenly turned round and said, “No, I’m very worried about what I’ve embarked upon. I want to stop”.

It is true that the commissioner can look at thematic issues, and we expect that they will do so, but as far as I can see there is nothing in the drafting of the Bill that says the commissioner cannot look at something that an individual raises. Indeed, the Government’s objection to my amendment seems to be that there already exist facilities, processes and procedures that enable an individual to raise a concern. So I am not convinced that these objections are cogent. I accept that it is legitimate to ask the questions, but I do not accept that that is a justifiable reason for opposing the amendments that I have tabled.

The noble Viscount, Lord Stansgate, said in effect that whistleblowing was covered by the Bill but did not address the point that I and the noble Baroness, Lady Kramer, raised: why, if it is so good and desirable, is it the word that dare not speak its name in the Bill? That is what is beyond me, to be honest. “Whistleblowing”, as we have previously discussed, is legitimate text and terminology in other legislation.

The noble Lord, Lord Beamish, made an interesting point: very wisely, he concedes that, once the Bill is being operated, there may have to be tweaks and it may have to be reviewed, because we may find that it is not working just as we intended. He made the distinction between thematic and individual. I understand that distinction but, as I have explained, there is nothing in the Bill as far as I can see that would stop an individual at the moment making a complaint under the provisions of the Bill.

The noble Baroness, Lady Kramer, again with cogent perspicacity, got to the heart of the matter. As she said, whistleblowing and complaints processes are different, so why would you not give the Armed Forces commissioner the tools to do what has to be done? She added that whistleblowing is a channel that—in her opinion, to which I am inclined to defer—would create more trust, and I think we all understand that more trust is certainly needed to reassure our Armed Forces personnel. I was struck by her observation that where we have got to in political thinking, and in parliamentary process, is that whistleblowing should almost be the norm, not the exception.

In short, I reiterate that I am glad that this debate is neither polemical nor party political, because we all want to arrive at the same destination. Where we have got to is a difference of opinion on the legal semantics. However, I firmly believe that the amendments I have tabled would enhance the Bill and help the Armed Forces commissioner to do the job better. I would therefore like to test the opinion of the House.