Armed Forces Bill

Baroness Jolly Excerpts

Tuesday 1st March 2016 Grand Committee

[Baroness Jolly (LD)]

My Lords, my first point was going to be the one that the noble Baroness, Lady Gould of Potternewton, has just made. It is not helpful to compare with other sectors. All our Armed Forces pretty much live cheek by jowl with each other. That is not the case elsewhere: if you work in a bank, you go home at five and come back in at nine. It might tell you something but it is not hugely helpful.

I am happy to support Amendments 5 and 6. There are absolutely no circumstances where either rape or sexual assault are acceptable—we have heard talk today about many high-profile cases that are now in the public domain so I shall not go any further there—and we know that at the very highest level the service chiefs would agree with that statement. Last summer the MoD launched the “Don’t Kid Yourself” campaign, so there is acknowledgement and awareness. However, the real commitment at the top has to be to changing attitudes as well as behaviour, which will take time. It takes evidence to check progress and offer confidence.

The point was made that it is not only women who can be victims, and there is possibly a different reaction to men who have been the victims of sexual assault or rape from the reaction to women in the same circumstances. In the service environment, men might feel shame in a slightly different way from the way that women might feel it, and that needs to be factored in as well. A parent would need reassurance that their son or daughter was joining an organisation committed to the eradication of sex offences. Recruits and serving members of the Armed Forces need that reassurance too.

I turn to Amendment 6. To make all feel confident—and I think this amendment is about confidence—there should be no discretion for a CO to refer this to the relevant police force. They should not handle it themselves. Sexual assault is a crime, as is rape, and if there is any doubt it is far better for this to be investigated by the police, who have the experience, rather than a CO, who does not. It has been said to me that COs have been sent on training to do this. I wonder, were I or noble Lords’ sons or daughters to be raped, would we want the case to be investigated by someone who had done some training a year or so before but had not seen a case in the intervening time? We need someone investigating these cases who has not only training but experience and sensitivity. These are very sensitive issues, and the noble Earl, Lord Attlee, made that point as he was explaining his personal experience.

To keep records and publish statistics annually on these cases would enable the Government, the public and members of the Armed Forces to measure progress. It would not be just another task to do; it would enable us to measure progress and to highlight any areas of concern. The Minister in the other place, Mark Lancaster, said during the passage of the Bill:

“I am determined to make the data that we publish robust, consistent and accessible. To that end, I am actively considering how best to publish the data as an official statistic”.—[Official Report, Commons, 16/12/15; col. 1623.]

Has the Minister’s honourable friend finished his considerations yet? What format might he use?

[Lord Thomas of Gresford]

My Lords, I am moved to join in this debate by the recitation by the noble Baroness, Lady Gould, of the figures for the past few years, which amount to hundreds. I should tell the Committee that in the investigation I was involved with in Washington in America, to the best of my recollection it was estimated that 32,000 sexual offences were committed in the United States armed forces, regarding which there were 5,000 complaints and prosecutions brought in the hundreds, with convictions a lower figure. It was a matter of very high political concern. There is a campaign regarding this by Senator Gillibrand, the junior senator for New York, assisted by Mr Ted Cruz, who has achieved some notoriety lately. So there are a Democrat and an ultra-right-winger and others all involved in dealing with this dreadful problem that they are facing. The issue really is the role of the CO in sexual offences, the very issue that Amendment 6 raises. I strongly urge it upon the Minister that sexual offences should be taken out of the purview of the CO altogether.

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[Lord Empey (UUP)]

My Lords, I accept that this is a probing amendment. I think everyone would be of the view that discrimination should not take place against members of the Reserve Forces, but there have been examples where clearly it has, and we have just been given another.

In Northern Ireland we have substantial law on discrimination on religious or political grounds. Not that long ago, the identification of people as a member of the Armed Forces was sufficient to result in their being targeted and in many cases, unfortunately, assassinated. The Minister may not have the material at his disposal now but perhaps he might reflect and consult his colleagues in the Government on the implications of the publication of such material. It could result in the identification of units whose members had a particular religious or political persuasion.

So I support the principle, which I think is quite right, but I imagine that there could be some local nuances where the Reserve Forces are concerned. The Minister might care to consult with colleagues on that, since how the information might be acquired and handled may require slightly different treatment in Great Britain from that required in Northern Ireland.

[Baroness Jolly]

My Lords, I am happy to support the amendment. Future Reserves 2020 relies upon a significant build-up of our Reserve Forces, and at a pace. Employers and reservists have both rights and responsibilities. I am sure that noble Lords would agree that a wise would-be reservist would talk their plans through with their employer, but they need not. The first the employer could hear about them is the receipt of a letter from the MoD. Similarly this can happen at the change of a job. When you apply for a job you are not under any obligation to tell your would-be employer that you are a reservist, which probably chimes with the point just made by the noble Lord, Lord Empey. It is therefore really important that there should be no discrimination. Noble Lords might wonder whether an employer would feel anxious and somewhat disappointed about the lack of confidence that the employee has in him that he has not been told, but clearly there are many reasons here. Also, what employees do in their own time is very much their own business.

There are ways around this on a temporary basis. A reservist employee can ask for a waiver from the MoD lasting a year not to tell the employer, but that aside, there is evidence of discrimination by employers. There is no protection against such discrimination in employment in the normal course of events. This probing amendment seeks to draw out from the Minister the various issues around how this might be handled and ask whether we are aware of the scale of the problem. But as with Amendment 5, recording and publishing the information gives the Government and indeed the public the opportunity to measure progress year on year and creates a fairer environment for reservists in which they are to work.

[Earl Howe]

My Lords, I am most grateful to the noble Lord for raising this issue and I understand entirely why he felt it appropriate to do so. Nevertheless, I am not convinced at the moment that it is necessary or appropriate to set out a requirement in the Armed Forces Bill for commanding officers to collect and for the Ministry of Defence to publish the kinds of data that he has referred to.

We fully recognise and value the contribution of reservists and the need to ensure that their interests are properly protected. Part of that is making sure that their reserve service does not negatively affect their employment prospects. I completely accept that principle. But that is precisely why there is protection in place to ensure that reservists are not dismissed as a result of any duties or liabilities that they have to undertake; for example, as a result of being mobilised. This protection is provided by the Reserve Forces (Safeguard of Employment) Act 1985, Section 1 of which gives a reservist who is called out for reserve service the right to apply to his or her former employer to be reinstated after they return from mobilised service. In addition, Section 17 of the 1985 Act makes it a criminal offence for an employer to dismiss an employee solely or mainly by reason of any duties or liabilities that may arise as a result of being called out.

Further, Section 48 of the Defence Reform Act 2014 amended the Employment Rights Act 1996 to remove the current two-year qualifying period for claims of unfair dismissal where the reason for dismissal is or is primarily because the individual is a reservist. However, we are not aware of any cases having been brought as a result of this change. In addition, as proposed in the Reserves in the Future Force 2020: Valuable and Valued White Paper, we have established a website that allows reservists to alert the Ministry of Defence if they believe that they have been disadvantaged in employment as a result of their reserve service. These cases are of course investigated if the complainant agrees. There have been only 13 contacts from reservists since we established the website in July 2013. Those are the facts as they currently stand.

The amendment proposed by the noble Lord seeks to place a legal duty on commanding officers to collect statistics on how many reservists have reported employment discrimination on account of their reserve service and for the Ministry of Defence to collect and publish statistics on the number of complaints regarding discrimination. There are more than 300 reserve units in the UK. Given the very low incidence of reported complaints, I submit that a requirement of that kind would be disproportionate and burdensome.

However, there is another difficulty with the proposed amendment—it may be unnecessary for me to point this out, but I hope that noble Lords will forgive me for doing so. It refers to “discrimination” in the context of employment, but it is important to be clear that, despite the protections that I have referred to for reservists in the civilian workplace, being a reservist is not a “protected” characteristic under the Equality Act 2010, unlike characteristics such as age, disability, race, religion or belief, sex or sexual orientation. I would like to make a further point. It does not follow that an allegation of discrimination means that an individual has been discriminated against. One need only think of a simple example, such as someone who says that they have not been promoted because of their reservist status and that that needs investigation. Clearly when an allegation like that is made, it is quite a complex situation. While on the face of it the amendment appears simple, I suggest that there are significant difficulties below the surface.

Our approach, which I hope that noble Lords will agree with, is to develop open relationships with employers and to encourage and support reservists in their individual relationships with their employers. We encourage reservists to raise employer issues with their chain of command and to resolve issues through the improved relationship management process that we have put in place. I would like to think that those processes have borne fruit, in the light of the very small number of contacts with the website that I referred to earlier. Good relationships with employers are absolutely central to the Government’s programme for the Reserve Forces, but I believe that our resources in this area are better spent in strengthening these relationships than in creating and fuelling a reporting process.

The improved relationship with employers is increasingly evident from the number signing the Armed Forces covenant and the very strong examples of those employers up and down the country who have been recognised for their support to our Armed Forces. The issue raised by my noble friend Lord Attlee is slightly different, as I am sure he recognises, and I undertake to write to him about it.

I hope that the Committee will understand why I cannot support the proposal that the Bill should be amended. For that reason I hope that the noble Lord will agree to withdraw the amendment.

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[Lord Touhig]

My Lords, Amendment 8 has widespread support across the House, as evidenced by the names attached to it.

The amendment stems from a discussion that I had recently with representatives of the BMA who raised concerns about the way that those with mental health problems are often overlooked when it comes to receiving proper recognition and compensation for the illness that they are enduring as a result of serving in our Armed Forces and reserves. I am sure I am not alone in knowing someone—a friend or a family member—who suffers with mental health problems. I often think that our lifestyles and the pace at which we live today contribute to our difficulties in this regard. I have no medical or scientific basis for holding that view; rather, it comes from what I observe in society as a whole.

None of us needs a medical or scientific background to know that mental illness can take a number of forms and can often be hard to diagnose, especially if the person concerned will not recognise the existence of the problem in the first place. I have come across cases like that and, again, I am sure I am not alone in that.

I was motivated to encourage colleagues to support this amendment by the case of a reservist with a medical background who waited eight years for a diagnosis, having endured PTSD after serving in several theatres of conflict in our Reserve Forces. I learned that there are many others in the same situation who find that mental health problems adversely impact their ability to work at the expected level, inevitably reducing their income and thus their family life. For those serving in our forces and reserves, the problem is serious indeed. Having waited a great length of time for a diagnosis, there would appear to be no opportunity of gaining immediate financial assistance. Contrast this with those having served in our Armed Forces who suffer a physical injury: they can claim up to £60,000 if their injuries are set at level 8 or more. However, mental health is classified below this level. Once diagnosed with a mental health problem, it can typically take 18 months to two years before it is clear whether treatment will lead to a complete or partial recovery and the level of residual deficit, if any. I understand that for a claim for financial compensation to succeed, the permanent level of disability must first be assessed. This adds a further lengthy period of time when the claimant who has served in our Armed Forces or reserves has to live on decreased earnings, in many cases supporting a family. The situation is made worse if the person concerned requires a period of sick leave.

Treating the men and women of our Armed Forces in this way does no honour to us as a Parliament or as a nation; all the more so now that we have the Armed Forces covenant in place. In the foreword to this year’s covenant report, the Defence Secretary, Mr Fallon, writes:

“In return for this loyalty and commitment, we have a duty to ensure that our Servicemen and women are treated fairly”.

This amendment gives us the opportunity to see that, as a country, we live up to that well-expressed and noble aspiration. We can make it more than an aspiration; we can make it a reality. If agreed, this amendment would provide for an immediate payment upon diagnosis and a retrospective payment upon commencement of treatment, backdated to the date of the diagnosis. I hope that the Government will feel able to respond positively to this amendment. In addition, I also fully support the amendment in this group in the name of the noble Baroness, Lady Jolly. I beg to move.

[Baroness Jolly]

My Lords, I shall speak to Amendments 8 and 14. For reasons that will become apparent, I will talk about my amendment first and then Amendment 8. The whole thing hinges on the Armed Forces covenant. Noble Lords will know that at some stage during our lifetime, one in four of us will have a mental health issue. This is pretty much mirrored in members of the Armed Forces. Today, I want to talk about serving members of the Armed Forces and reservists while they are deployed. I am not going to talk about veterans. Veterans receive their health services from the NHS, whereas serving members and deployed reservists receive their health services from the medical system within the Armed Forces. The covenant is all about ensuring that someone in the Armed Forces is not at any disadvantage to those who are outside. I do not know whether when he saw this amendment the Minister raised his eyebrows and thought, “Oh no, not again”, because during the passage of the Health and Social Care Act 2012, a great deal of time and energy was spent debating the issue of parity of esteem. This amendment is to ensure that health issues are treated in exactly the same way—clearly not in terms of diagnosis or treatment but in general expectation—regardless of whether they are physical or mental. I thank the noble Lord, Lord Touhig, for his support on this.

I put it to the Committee that if a sailor, aircraft person or soldier tears their hamstring, they visit their unit doctor or medical centre. They are then referred for treatment, may be given painkillers and are strapped up. Physio will be part of the treatment and, when it is mended, in due course they will return to work. If the injury is serious, they may have to leave the service and continue with treatment outside. Physically, they will clearly be strapped up, so people can see what is going on and their colleagues and chain of command will support them in their journey back to work. A physical injury is something with which we are all comfortable and which we understand. It can be seen: there is no problem. If the issue is anxiety, depression or even worse, the story should be similar, but that is not always the case. The services have done a huge amount of work to reduce the stigma associated with these conditions, but, as in civvy street, it has not always been successful.

Within the NHS, there has to be a great move towards parity of esteem for physical and mental health. What might that look like? It might look like waiting times being much the same for a hamstring injury as for a conversation with a psychiatrist or a psychologist about one’s mental health. It should also be about the uptake of services, which should be much the same for physical health as for mental health. Therefore, I propose that the Armed Forces covenant report should include an assessment of the aspects that I have outlined. As with Amendments 5 and 7, the collection of information and its publication enables progress to be measured.

Amendment 8 follows on from Amendment 14 in that compensation should apply equally to both physical and mental health conditions and therefore I support both of the amendments.

[Lord Empey]

My Lords, I welcome the fact that this debate is taking place. Mental health has moved up the national agenda very substantially in the last few years. However, I think we all agree that at local level it is still the Cinderella service. In putting things into law, we have to be careful that there is the back-up on the ground to deliver them. I believe it will be many years before we have sufficient capability in the National Health Service to deliver the very worthy objectives contained in these amendments.

Noble Lords who have supported constituents in bringing benefits claims involving, for example, carer’s allowance and other benefits before tribunals know that you could draw a blank from the tribunal members when it came to post-traumatic stress. They had no capability of understanding the circumstances which an individual could be in. I am reminded of the early days of the discussions on mesothelioma and asbestosis, when you had to prove that the individual contracted the disease with a specific employer. The law was subsequently changed. Forty years can pass before post-traumatic stress materialises. I saw this with somebody with whom I worked very closely, and it took almost 40 years. Tying it down to a specific incident will be challenging.

In the context of the military covenant and Amendment 14, mentioned by the noble Baroness, Lady Jolly, promises have been made and we have advanced very substantially. If ever there was an issue that needed to be addressed, this is it; and I believe that that is entirely possible. However, I am not convinced that we as a nation have yet acquired the capability on the ground to deal with these things. We do not wish to raise expectations only to have them dashed. Anyone who knows their local area knows that mental health is a huge issue, and my area is no different. We still have large numbers of young men who, sadly, commit suicide. There are people in the military and ex-service personnel who we know have a tendency to have a higher involvement with the criminal justice system. Others have difficulty with employment or with accommodation. There are also addiction issues. There are a range of things that on the face of it are linked to their commitment to the Armed Forces.

When people have been in conflict we see the obvious physical injuries and, as the noble Baroness, Lady Jolly, said, there is a pathway for how those are treated, but very often there is no parallel process for the mental health implications. I think that these amendments are well worth debating and considering. I just wonder whether the Minister agrees that, in framing anything to put into the legislation and into the military covenant, we should be mindful that we must be able to deliver it before we create the expectation that it is going to be there, only to have that subsequently dashed.