Written evidence submitted by The Royal British Legion to the Select Committee on the Armed Forces Bill
1.1. The Royal British Legion (the RBL) welcomes the Armed Forces Bill 2021 and supports the principle of strengthening of the Armed Forces Covenant (the Covenant) in law. However, the RBL believes the Bill can and should go further in ensuring delivery on the promise of the Covenant to the Armed Forces community.
1.2. In particular:
2.1.1. During the period of operations in Iraq and Afghanistan in the 2000s, attention was increasingly drawn to the sacrifices made by members of the Armed Forces community and the obligations of the government and the nation towards them during and after their Service. As a result, in 2007 the RBL launched the ‘Honour the Covenant’ campaign, urging the government to address important issues on compensation, physical and mental health needs, veterans’ care, inquests and legal representation. Following this campaign, the then government published a command paper in 2008 on the nation’s commitment to the Armed Forces, which was followed by a green paper in 2009 outlining proposals for building on the principles of the Armed Forces Covenant. In 2010, the incoming government established a Task Force on the Military Covenant, with the then Prime Minister making an early public commitment to place the Covenant in law:
“It is time for us to rewrite that Military Covenant, to make sure that we are doing everything we can for you and your families at home, whether it is the schools you send you children to, whether it is the healthcare that you can expect, whether it is the fact that there should be a dedicated military ward for anyone who gets injured or wounded in Afghanistan or elsewhere. I want all of these things refreshed and renewed and written down in a new Military Covenant that we write into the law of our land.”
2.1.2. The Armed Forces Act 2011 was intended to give effect to this commitment. Whilst a welcome move, the RBL argued that the Bill as introduced did not go far enough to meet the Prime Minister’s pledge that the Covenant would become part of ‘the law of our land’. Following further representations, in May 2011 the government published The Armed Forces Covenant, which laid out the principles of the Covenant and the government’s commitments. The Armed Forces Bill 2011 was amended during its passage to include reference to these principles and included a requirement for the government to publish an Annual Report on the Covenant, which it has done each year since.
2.2.1. A decade ago, during the passage of the 2011 Armed Forces Bill, the RBL argued that the Bill should be improved to “place a duty on the Secretary of State and public bodies to consider the Military Covenant when making strategic decisions” and recommended that “all bodies carrying out a public function are included under the duty to consider”. The RBL also questioned the references in the Bill only to the policy areas of health, housing and education:
“I also think there are potentially other areas…I foresee that at any given point in time a wide range of other issues could and should properly be included.”
“Service life can affect every facet of one’s life, not just the principal ones of health, education and housing, which we all recognise and hold dear. Housing and health issues can have effects on other elements and departmental responsibilities” 
2.2.2. More recently, the RBL noted the case for strengthening the Covenant in law in our 2019 response to the government’s consultation on its Strategy for Veterans:
“The option of giving statutory legal force to the Covenant principles should be on the table. We would suggest the tenth anniversary in 2021 of the Covenant’s inclusion in the Armed Forces Act would be an appropriate deadline by which to consider whether firmer measures are required” 
2.2.3. The RBL has therefore consistently maintained that the Covenant should be strengthened in law and we accordingly welcome the government’s support for this position. However, there are limited legislative opportunities to act in this area, usually restricted to the quinquennial Armed Forces Act. Therefore, we believe maximum advantage should be taken of this golden opportunity to enhance delivery of the Covenant to the Armed Forces community and ensure it is fit for purpose for the next decade. To this end, the Legion believes the Bill can and should go further in strengthening the Covenant in law.
2.2.4. Oral and written evidence already provided to the Select Committee has demonstrated that this view is widely shared amongst organisations in the Armed Forces charity sector with practical experience of the Covenant, including Help for Heroes, Cobseo, SSAFA and the three service Family Federations.
3.1.1. Ten years ago, the government published The Armed Forces Covenant, which outlined the principles of the Covenant between the people of the United Kingdom, the Government, and all those who serve or have served in the Armed Forces, and their families. It states:
“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past, and their families:
3.1.2. The RBL welcomes the fact that the Armed Forces Bill translates the Covenant’s twin principles from the previous Act, along with an additional one recognising the unique obligations of, and sacrifices made by, the Armed Forces. However, it is important not to attempt to reinterpret or reframe these principles in ways that are not reflected in the original document or legislation, as has occasionally been the case over the last decade, for example:
3.1.3. The government’s guide to the legislation begins by stating that “The Armed Forces Covenant is not about advantaging members of the Armed Forces Community.” However, this is not actually ruled out by the Covenant, and we believe that the principle of “special consideration…for those who have given the most” does provide for measures that could be considered by some to be an advantage.
3.1.4. Given the above, the RBL welcomes the fact that the Armed Forces Bill translates the principles from the previous Act. It is imperative however that the wording of the Bill’s accompanying statutory guidance, on which public bodies will base their ‘due regard’ considerations, reflects both the letter and spirit of the Covenant set out in 2011.
3.1.5. The need for clarity in the guidance was highlighted by the Local Government and Social Care Ombudsman in his oral evidence to the Select Committee, noting from his experience that “If we are going to hold public bodies to account based on that guidance, it needs to be clear, strong and robust. In our experience, some guidance is very useful and clear to apply when it is unambiguous. Where things are woolly and unclear, it is very difficult both for practitioners and local government to do their job, but also for us to take an independent view of whether they have done the right thing or not.”
3.1.6. The guidance therefore needs to be as fully comprehensive as possible, including clear explanations of the precise scope of the Act, how the duty would work in practice, the tools available to public bodies to implement it, how they can ensure their own compliance, clarity on routes for redress, and applicability to all parts of the UK and all types of public body covered. Early publication of the draft guidance will also indicate whether any of it is of sufficient import to require its inclusion in the Bill instead.
3.1.7. Recommendation B: A draft of the statutory guidance for all public bodies specified in the Bill should be published as soon as possible during the Bill’s passage to enable scrutiny of how it is intended that the provisions will be implemented, and the Covenant will be interpreted.
3.2.1. The main new development in the Bill is the introduction of a requirement on designated public bodies to have ‘due regard’ to the principles of the Covenant when exercising specified functions. There is established case law, known as the ‘Brown principles’, that have given form to how public bodies and the courts should interpret a ‘due regard’ duty. They are summarised as follows:
3.2.2. The application of these principles will strengthen the legal force of the Covenant in those areas to which it is applied by the Bill, but the duty will not require specific outcomes; rather, it will require that the principles of the Covenant be considered in decision-making. If other countervailing factors are deemed relevant, this could mean that adhering to the Covenant might not take priority. For this reason, we recommend that the Bill be enhanced by clearly applying the duty to the Covenant’s principles directly, rather than be filtered through the qualifier of it being ‘desirable’ to give due regard to the principles.
3.2.3. The government has argued that the new Covenant duty is “similar to other duties to have due regard already in operation, such as the Public Sector Equality Duty.” However, the proposed measures in the Bill vary from the approach taken by comparator duties.
3.2.4. The Public Sector Equality Duty (PSED) requires designated public bodies to have due regard to the need to eliminate discrimination, victimisation and harassment, and positively advance equality and good relations. We note, however, that the PSED, as established in the Equality Act 2010, is accompanied by a stronger and more extensive legislative framework, including reporting requirements, with the Equality and Human Rights Commission responsible for the promotion and enforcement of equality laws. Rather than the Armed Forces Bill approach of specifying policy topics, the PSED also defines those affected public bodies – which includes Ministers of the Crown and government departments – and applies the duty to the exercise of all their functions.
3.2.5. This is also the general approach taken by another due regard duty, the ‘Prevent’ duty contained in the Counter-Terrorism and Security Act 2015. This requires specified authorities, in the exercise of their functions, to have due regard to the need to prevent people from being drawn into terrorism.
3.2.6. Furthermore, the government’s own Environment Bill, currently before Parliament, also proposes a general duty that “A Minister of the Crown must, when making policy, have due regard to the policy statement on environmental principles currently in effect.” 
3.2.7. The approach taken by other legislation anticipates that one cannot be certain of future situations where the duty may need to apply and recognises that it can be difficult to isolate some functions of public bodies from others. The approach taken by the Armed Forces Bill is therefore narrower and more prescriptive than that of other due regard duties introduced in recent years.
3.2.9. Recommendation D: In new Clause 343AA (1)(c) replace the words “may be” with “is”.
3.2.10. Recommendation E: In line with other legislation outlining a due regard duty, it should be applied to the exercise of all the functions of designated public bodies.
3.3.1. Members of the Armed Forces community access public services through national, devolved, regional and local bodies. The government document The Armed Forces Covenant makes clear that “the Covenant should influence policy, service delivery and standards in the areas and ways set out below. In many cases these will be a responsibility of Central Government Departments and Devolved Administrations but, in other cases, responsibility will lie with local service providers or organisations within the voluntary or commercial sectors.”  This rightly recognises the range of actors involved in delivery of the Covenant, but notably puts the role of central government first and foremost.
3.3.2. The government’s Annual Report on the Covenant each year outlines just how much Covenant-related activity is undertaken by, and is the responsibility of, national government. For example, veteran-specific provision such as Armed Forces occupational pensions, or military compensation under the War Disablement Pension Scheme or the Armed Forces Compensation Scheme, are the responsibility of central government. The service Family Federations, in oral evidence to the Committee, suggested that the Bill’s provisions are “very limited” and “relatively limited” in their benefit to Service personnel and families; so, this issue may also be particularly relevant to ensure that serving personnel, for whom many services are the responsibility of the Ministry of Defence (MoD), fully benefit from the Bill’s provisions along with the rest of the Armed Forces community.
3.3.3. Even where the delivery of services may be local, the source of policy development, legislative requirements and direction is often central government. Despite this, the Bill applies only to elements of local government, and some health and education bodies. This was reflected in the oral evidence provided to the Committee by local government representatives, who noted “given that the role of the UK and Welsh governments is setting national and strategic policy that directly impacts on how local services operate, there will perhaps be merit in extending the duty in this manner.”
3.3.4. We also note that in oral evidence the Scottish Government indicated its support for the inclusion of national and devolved government, arguing that “if the scope were to be extended to capture national Government, that would need to be done by agreement, but to be honest, I would be relaxed about it if that were to happen. We should be seen to be accountable for our performance in the veterans space.”
3.3.5. The government has indicated in its guide to the legislation that the due regard duty is intended to apply “when developing policy, procedures and making decisions” and “when formulating policy”. However, even in the policy areas included in the Bill, policy development and formulation does not solely rest with local authorities and those bodies currently listed. For example, the School Admissions Code makes specific and welcome provision for the children of Service personnel to ensure they do not miss out on school places. Schools will be required to have due regard to the law on school admissions as part of the Bill. However, the Code itself is drafted and developed by the Department for Education (DfE) – as evidenced by the consultation which it conducted in 2020 on a revised Code. It is therefore clear that policy development, formulation and procedures on school admissions are ultimately decided by the DfE, yet it is not itself within the scope of the Bill. Similar potential confusion between policy development and policy administration is repeated in the other policy areas of the Bill.
3.3.6. Given the day-to-day experience of the Armed Forces community, the realities of policy development, and the precedents set by other legislation, the RBL believes that national government should be subject to the same legal standard on the Covenant it is seeking to apply to councils and other bodies.
3.3.7. Recommendation F: Amend the lists of public bodies in new clauses 343AA (3), 343AB (3), 343AC (3) and 343AD (3) to mirror those public bodies listed in Schedule 19 of the Equality Act 2010, and in particular include Ministers of the Crown and government Departments.
3.4.1. The policy scope of the Bill is limited to housing, education and healthcare. However, it should be noted that the totality of these three issues, and those responsible for them, are not entirely in scope.
3.4.2. In education and healthcare, overarching legislation concerning the provision of these public services, for instance in England the Education Act 1996 and the National Health Service Act 2006, are specified as the source of relevant functions. However, both those pieces of legislation lay out general duties on the respective Secretaries of State regarding these policy areas. Yet Ministers are excluded from the scope of the Armed Forces Bill, resulting in a difference in the application of the due regard duty to different actors within the same piece of legislation.
3.4.3. This is particularly relevant given the government’s recently announced proposals to introduce new legislation for the National Health Service, a key theme of which is an increased role and accountability for Ministers. For example, the planned legislation “will support accountability by allowing the Secretary of State for Health and Social Care to formally direct NHS England in relation to relevant functions.” Given this direction of travel, it would suggest that there is a strong case for including Ministers within the scope of these provisions. This also reflects the distinction we noted previously between policy development and policy administration.
3.4.4. On education, we note that the Service Children’s Progression Alliance in its evidence to the Committee highlighted those parts of the education process and relevant bodies which are not within the scope of the Bill, which “risks a fragmentary approach to the provision of support”. We endorse their position of including early years and higher education providers and including “all UK and devolved government bodies with policymaking responsibility that may impact on the educational experiences of Service children.”
3.4.5. On housing, the relevant functions in scope are more specific, and are focused principally on housing allocation policies, homelessness, tenancy strategies and Disabled Facilities Grants. These are all correctly identified as issues of importance to the Armed Forces community. However, we are concerned that limiting the scope in this way could prevent other unanticipated housing issues from having the benefit of the due regard duty. We also note that one of the most high-profile housing issues affecting the Armed Forces community in recent years, Service accommodation, is not within scope, although the National Audit Office’s recent report on the matter referenced the Armed Forces Covenant in its findings. The absence of Service accommodation from the scope was also highlighted by the RAF Families Federation in their oral evidence to the Committee.
As noted above, the policy scope of the Bill is limited to specified functions in housing, education and healthcare. The government argues that these issues are the “foundation of successful lives and are commonly raised areas for concern by members of the Armed Forces Community.” In the RBL’s experience as the largest provider of welfare support within the Armed Forces charity sector, it is undoubtedly the case these are critical factors that contribute to successful lives. However, they are not the only ones: whether one looks at the issues covered and raised in the government Annual Reports on the Covenant; issues highlighted by the RBL and other Service charities; or the evidence from academic research and service providers, there are other important topics that deserve to benefit from the additional legal protection of a due regard duty.
3.5.1. Prominent examples of topics where Covenant issues have been raised in recent years include employment, pensions, compensation, social care, criminal justice, and immigration. However, one cannot predict all the issues that may arise in the future, hence the desirability of including all the functions of designated public bodies. Usage reports from the Veterans Gateway – a first point of contact portal for veterans seeking support, which is part-funded by the MoD and run by a consortium led by the RBL – indicate that employment and finance (which would include benefits and compensation) feature prominently alongside health and housing queries. Data gathered for the Map of Need developed by the Northern Hub for Veterans and Families Research at Northumbria University also identifies the range of issues being presented.
3.5.2. Furthermore, oral evidence presented to the Committee has highlighted the omission of important policy areas from the scope. The Welsh Local Government Association noted that “although they [housing and education] are important factors, what we find in Wales is that finance and employment are key factors and should be looked at”; and the RAF Families Federation suggested that the inclusion of employment in the scope would be “potentially significant and huge in our community”, and even if only limited to the public sector would be “a massive first step.” The Scottish Government also highlighted employment as a desirable policy area to be in scope. The Local Government and Social Care Ombudsman suggested “that there is the potential for confusion within local authorities as some aspects of the Armed Forces Covenant will be enshrined in law and others not.”
3.5.3. The Local Government and Social Care Ombudsman particularly highlighted the omission of social care as “a gap, and a somewhat inexplicable one, given that health is included”, arguing that it that “it is entirely foreseeable that people who have given service in the forces might well be in receipt of social care, and that social care might be directly linked to their service”, and that separating it from health “would seem slightly odd in terms of the public experience of those services.”
3.5.4. We believe that the most effective way of enhancing the policy scope would be to adopt the approach outlined above and for which there is precedent in other due regard duties, namely amending the list of public bodies and extending it to all their functions.
3.5.5. The Bill also includes a power, in new clause 343AF, for the Secretary of State to add bodies and functions to the Bill, recognising the limited scope of the Bill. However, the Bill does not set out the circumstances in and process by which this power would be used. For instance, it would not be acceptable to wait for a disadvantage to occur before using the power to retrospectively remedy it. We are concerned that clause 343AF vests in the Secretary of State the power to define the parameters of the Covenant. The Covenant is an “obligation [that] involves the whole of society”, and furthermore, the Secretary of State has ministerial responsibility for some of the issues which may potentially be in the future scope of the Bill. We therefore seek clarification on the threshold for triggering such a power, what consultation would be involved, and the scope for independent scrutiny and recommendation. We welcome confirmation by the Minister of State that the scope will be “reviewed regularly” but would like to see this confirmed in the legislation.
3.5.6. If the recommendations we make above were adopted, then the additional power proposed for the Secretary of State would be unnecessary. However, if it is retained, we propose the following recommendations:
3.5.7. Recommendation H: Outline clear thresholds, processes and consultation requirements for the use of the Secretary of State’s power in clause 343AF.
3.5.8. Recommendation I: Establish an independent body to make (ideally legally binding) recommendations on the scope of the Act and the use of the Secretary of State’s power in clause 343AF.
3.5.9. Recommendation J: Require the Secretary of State to conduct an annual consultation on the scope of the Act and report to Parliament if the conclusion is no further extension is required.
3.6.1. Over the last decade, we have seen important progress in delivering for the Armed Forces community at a national, devolved, regional and local level. Whilst activity and performance have at times been variable, resource has been invested and action has been taken that may not otherwise have happened had the Covenant not been in place. Every local authority in Great Britain signed the Covenant, along with many in Northern Ireland, and we have been impressed by those bodies that have chosen to go above and beyond, engaging in innovation and experimentation to find new ways to support the Armed Forces community.
3.6.2. We believe it is critical that this record of innovation is built upon in the years to come. We are therefore concerned that the narrow and prescriptive focus of the Bill could have the unintended consequence of encouraging public bodies – who may have many other financial and legislative priorities – to focus purely on that which they are legally required to do by the Bill, at the expense of going further. We believe the other recommendations we are making would help address that concern, but in their absence, we would urge that all steps possible be taken to ensure this does not occur, including raising the bar of what is expected to mitigate any risk of deterioration in ambition and innovation.
3.6.3. For instance, in 2016, the Local Government Association, in partnership with the Forces in Mind Trust and Shared Intelligence, and supported by the MoD, undertook research that resulted in the report Our Community, Our Covenant – Improving the delivery of local Covenant pledges. This report outlined a ‘core infrastructure’, reflecting the basic administrative actions taken by councils that have successfully implemented the Covenant. This core infrastructure is given prominence by the MoD in its existing guidance to local authorities and key points included:
3.6.4. The report noted that an estimated 90% of councils surveyed had a Champion in place and 95% an officer point of contact, but on other elements progress was slower. The fact that so many councils had already implemented parts of this core infrastructure shows that any hurdles to universal delivery against these expectations are not insurmountable, and as such we maintain that the Bill should establish this infrastructure as a minimum.
3.7.1. As noted previously, similar due regard duties are accompanied by enforcement mechanisms and reporting requirements to ensure the law is monitored and implemented. The government has confirmed that for the Covenant due regard requirement, “no new enforcement mechanism is planned”; that existing complaints procedures and Ombudsmen could be used; and that enforcement is also possible via judicial review. We believe it is unsatisfactory that there is no provision for enforcement of the new provisions, nor any means of assessing the Bill’s effect or of reviewing its requirements.
3.7.2. Judicial review is, by its nature, likely to be a last resort due to the time, expense and complexity in pursuing that avenue. We believe it is highly unlikely that an ordinary member of the Armed Forces community will have the time and resources to pursue this option, and nor is it reasonable to expect them to do so to remedy any potential failure to have due regard. We note also that, following an independent review of the administrative law, the government is consulting on potential reforms to judicial review.
3.7.3. The government has not laid out which complaints procedures and Ombudsmen they envisage would be the suitable vehicles for pursuing Covenant-related issues. We are not aware of particularly high levels of awareness and uptake of existing complaints procedures and Ombudsmen among the Armed Forces community. Indeed, the Local Government and Social Care Ombudsman in evidence to the Committee stated that the number of Covenant-related complaints his office receives “feel pitifully small compared to the numbers of complaints we get about other issues.” For the benefit of those members of the Armed Forces community this legislation is seeking to support, it is important that there is clarity for them about the routes for redress. Given the mobile nature of Service life, consistency of provision in those redress mechanisms wherever people live would also be beneficial. Examples of relevant Ombudsman and Commissioners might be:
3.7.4. We note that a number of these offices have a statutory basis, and so to ensure that their role in enforcing the new Covenant due regard duty is recognised, amendment of the relevant legislation to specify this would be desirable. The use of strengthened existing avenues would be our preferred option, but an alternative route for consideration could be the creation of a specific Covenant Ombudsman with powers to enforce the law.
3.7.5. We also endorse the suggestions of the Local Government and Social Care Ombudsman in his oral and written evidence that the statutory guidance should clearly explain the complaints and Ombudsman process, put a clear duty on public bodies to explain to potential beneficiaries of the legislation their rights of redress, and include a requirement to directly signpost people to the relevant Ombudsman scheme at the end of the complaints process.
3.7.6. We have noted above the lack of clarity around the proposed power to add functions and bodies to the scope of the Bill. Linked to this is the lack of any requirement for a wider review of the Bill’s provisions, and how its success would be assessed. Straightforward ways of addressing these gaps would be to extend the duty to report to all affected public bodies, and to require a timely review by Parliament of the Bill’s provisions and how they have been working.
3.7.7. Finally, we note that the Bill does not specify a commencement date for the Covenant provisions. As the government did not conduct a public consultation in advance of the Bill, we believe it is essential that widespread consensus is achieved on the content of the statutory guidance. This requires its early publication in draft, but also that views and assent on its content from those other than affected service providers should be secured prior to commencement. This should include the Armed Forces community themselves, as well as their representative bodies and support providers.
3.7.8. Recommendation L: Through the Armed Forces Bill, amend the statutory basis for relevant Ombudsmen to ensure the Covenant duty clearly sits within their remit and responsibilities (relevant legislation includes the Parliamentary Commissioner Act 1967, Health Service Commissioners Act 1993, Local Government Act 1974, Housing Act 1996, Scottish Public Services Ombudsman Act 2002, Public Service Ombudsman (Wales) Act 2015, Northern Ireland Public Services Ombudsman Act 2016).
3.7.9. Recommendation M: As an alternative to the use of other offices, consider the creation of a Covenant Ombudsman, with powers to enforce the duty.
3.7.10. Recommendation N: Require each public body in scope to publish an Annual Report on their delivery of the Armed Forces Covenant and compliance with the due regard duty, similar to the Annual Report already required from the Government to Parliament.
3.7.11. Recommendation 0: Require the establishment of a Joint Committee of Parliament, at a timely interval that is sooner than the next quinquennial Armed Forces Bill (e.g. after two years) to review the scope of the Covenant provisions in the Act, whether it is working and require the Secretary of State to bring forward amendments to implement the recommendations.
3.7.12. Recommendation P: As well as publication of the statutory guidance in draft during the Bill’s passage, it should be subject to public consultation with stakeholders beyond affected public bodies, and final approval by the Covenant Reference Group.
4.1.1. RBL welcomes the Armed Forces Bill 2021 and supports the principle of strengthening of the Covenant in law; however, we believe it can and should go further. Oral and written evidence to the Select Committee by many other organisations and individuals so far have also demonstrated broad support for the Bill to go further in its scope, to fully embrace the Covenant and those public bodies responsible for its delivery.
4.1.2. At the heart of this is the Armed Forces community that these proposals aim to support. It is vital to the strengthening of the Covenant that members of that community are clear about what this legislation will and will not deliver and how they will benefit. The intent and effect of the Bill should be clearly articulated to maximise understanding and manage expectations within the Armed Forces community.
4.1.3. This point was reinforced by oral evidence to the Committee from local government representatives, who from their perspective asked “what is the Government’s expectation of due regard? We have to understand what that means, what the duty is and what the statutory powers that will be placed on local government are.” In this way, service providers and those subject to the due regard duty should be similarly clear about expectations upon them, supported by the statutory guidance.
4.1.4. The observations and recommendations we make in this written evidence are intended to assist the Committee in its deliberations and scrutiny of the Bill. We believe they would help make the most of the opportunity presented by this Bill and would command broad support amongst many working to ensure the Covenant is effectively delivered, as well as the Armed Forces community itself.
Recommendation A: The Bill can and should go further to ensure delivery of the promise of the Covenant to the Armed Forces community and take full advantage of this legislative opportunity.
Recommendation B: A draft of the statutory guidance for all public bodies specified in the Bill should be published as soon as possible during the Bill’s passage to enable scrutiny of how it is intended that the provisions will be implemented, and the Covenant will be interpreted.
Recommendation C: In new Clause 343AA (1)(b) replace the words “that it is desirable to remove” with “of removing”.
Recommendation D: In new Clause 343AA (1)(c) replace the words “may be” with “is”.
Recommendation E: In line with other legislation outlining a due regard duty, it should be applied to the exercise of all the functions of designated public bodies.
Recommendation F: Amend the lists of public bodies in new clauses 343AA (3), 343AB (3), 343AC (3) and 343AD (3) to mirror those public bodies listed in Schedule 19 of the Equality Act 2010, and in particular include Ministers of the Crown and government Departments.
Recommendation G: Remove references to ‘relevant functions’ in the Bill so as to apply the due regard duty to all the functions of the designated public bodies.
Recommendation H: Outline clear thresholds, processes and consultation requirements for the use of the Secretary of State’s power in clause 343AF.
Recommendation I: Establish an independent body to make (ideally legally binding) recommendations on the scope of the Act and the use of the Secretary of State’s power in clause 343AF.
Recommendation J: Require the Secretary of State to conduct an annual consultation on the scope of the Act and report to Parliament if the conclusion is no further extension is required
Recommendation K: Require local authorities to put in place key elements of the ‘Our Community, Our Covenant’ core infrastructure, including an Armed Forces Champion
Recommendation L: Through the Armed Forces Bill, amend the statutory basis for relevant Ombudsmen to ensure the Covenant duty clearly sits within their remit and responsibilities (relevant legislation includes the Parliamentary Commissioner Act 1967, Health Service Commissioners Act 1993, Local Government Act 1974, Housing Act 1996, Scottish Public Services Ombudsman, Public Service Ombudsman (Wales) Act 2015, Northern Ireland Public Services Ombudsman Act 2016)
Recommendation M: As an alternative to the use of other offices, consider the creation of a Covenant Ombudsman or Commissioner, with powers to enforce the duty
Recommendation N: Require each public body in scope to publish an Annual Report on their delivery of the Armed Forces Covenant and compliance with the due regard duty, similar to the Annual Report already required from the Government to Parliament
Recommendation O: Require the establishment of a Joint Committee of Parliament, at a timely interval that is sooner than the next quinquennial Armed Forces Bill (e.g. after two years) to review the scope of the Covenant provisions in the Act, whether it is working and require the Secretary of State to bring forward amendments to implement the recommendations
Recommendation P: As well as publication in draft during the Bill’s passage, the statutory guidance should be subject to consultation with stakeholders beyond affected public bodies and should be subject to final approval by the Covenant Reference Group.
Over the last few years, the Royal British Legion has highlighted a variety of issues affecting the Armed Forces community and has raised a number of them in our contributions to the government’s Annual Report on the Covenant.
Some of these have been resolved, whilst others have remained outstanding for some time - but it appears that the topics below would have fallen outside the scope of the Bill, which focuses on specific aspects of health, housing and education:
War Memorials (Local Authorities’ Powers) Act 1923
One of the three principles to which designated public bodies must have due regard in the Bill is “recognising the unique obligations of, and sacrifices made by, the Armed Forces”.
There is a simple piece of legislation applying to local authorities that goes to the heart of this principle, yet it is not included in the Bill’s scope.
The War Memorials (Local Authorities’ Powers Act) 1923, passed in the context of the wave of memorial construction after the First World War, empowers local authorities to incur expenditure on maintaining, repairing and protecting war memorials within their area, whether they own the memorial or not. This also gives them the power to correct errors and add names from more recent conflicts to memorials.
The inclusion of this legislation within the scope of the Bill would be a simple way of ensuring recognition of the sacrifices of past generations is embedded, and that the positive work many local authorities do in supporting Remembrance is reflected in their Covenant activity.
22 March 2021
Written evidence submitted to the Select Committee on the Armed Forces Bill
 Ministry of Defence, The Nation’s Commitment to the Armed Forces Community: Consistent and Enduring Support - A Consultation Paper, July 2009
 David Cameron, speech on board HMS Ark Royal, in Halifax, Nova Scotia, 4 June 2010
 Royal British Legion briefing to MPs for Committee Stage of the Armed Forces Bill, February 2011
 Chris Simpkins, then Director General of the Royal British Legion, oral evidence to the Select Committee on the Armed Forces Bill, 10 February 2011
 Strategy for Our Veterans: Royal British Legion consultation response, February 2019, p.13
 Oral evidence to the Select Committee on the Armed Forces Bill, 4 March 2021; written evidence from SSAFA, March 2021
 Ministry of Defence, The Armed Forces Covenant (2011), p.1
 Ministry of Defence, Guide to the Covenant Legislation, January 2021, p1
 Michael King, Local Government and Social Care Ombudsman, oral evidence to the Select Committee on the Armed Forces Bill, 10 March 2021, Q96
 Brown, R v Secretary of State for Work and Pensions (2008) EWHC 3158 (Admin)
 Ministry of Defence, Guide to the Covenant Legislation, January 2021, p4
 Environment Bill 2019-21, Clause 18 (1)
 Ministry of Defence, The Armed Forces Covenant (2011), p6
 Anna Wright, Chief Executive Officer of the Naval Families Federation, and Collette Musgrave, Chief Executive Officer of the Army Families Federation, oral evidence to the Select Committee on the Armed Forces Bill, 4 March 2021, Q22
 Councillor Maureen Webber, Community Safety Spokesperson, Welsh Local Government Association, oral evidence to the Select Committee on the Armed Forces Bill, 10 March 2021, Q65
 Graeme Dey MSP, Minister for Parliamentary Business and Veterans at Scottish Government, oral evidence to the Select Committee on the Armed Forces Bill, 18 March 2021, Q266
 Ministry of Defence, Guide to the Covenant Legislation, January 2021, p3 and p4
 Department for Health and Social Care, Integration and Innovation: working together to improve health and social care for all, 11 February 2021, p48
 Service Children’s Progression Alliance, written evidence to the Select Committee on the Armed Forces Bill, March 2021, paragraph 22
 National Audit Office, Improving Single Living Accommodation, HC 1129, February 2021
 Maria Lyle, Director of the Royal Air Force Families Federation, oral evidence to the Select Committee on the Armed Forces Bill, 4 March 2021, Q22
 Ministry of Defence, Guide to the Covenant Legislation, January 2021, p2
 Armed Forces Covenant Fund Trust, Annual report of the usage of the Veterans’ Gateway online and mobile directory of services 2020
 Armed Forces Covenant Fund Trust, Map of Need Data Reports 2019 The Map of Need : The Armed Forces Covenant Trust (covenantfund.org.uk)
 Councillor Maureen Webber, Community Safety Spokesperson, Welsh Local Government Association, oral evidence to the Select Committee on the Armed Forces Bill, 10 March 2021, Q58
 Maria Lyle, Director of the Royal Air Force Families Federation, oral evidence to the Select Committee on the Armed Forces Bill, 4 March 2021, Q40
 Graeme Dey MSP, Minister for Parliamentary Business and Veterans at Scottish Government, oral evidence to the Select Committee on the Armed Forces Bill, 18 March 2021, Q267
 Local Government and Social Care Ombudsman, written evidence to the Select Committee on the Armed Forces Bill, 17 March 2021, paragraph 22
 Michael King, Local Government and Social Care Ombudsman, oral evidence to the Select Committee on the Armed Forces Bill, 10 March 2021, Q92-93
 Ministry of Defence, The Armed Forces Covenant (2011), p.1
 Baroness Goldie, Minister of State at the Ministry of Defence, House of Lords Hansard 11 February 2021, col 530
 Local Government Association/Forces in Mind Trust/Shared Intelligence, Our Community, Our Covenant – Improving the delivery of local Covenant pledges, 2nd edition, 2017
 A Guide for Local Authorities: How to deliver the Covenant in your area: https://www.armedforcescovenant.gov.uk/localauthorities/useful-resources/
 Ministry of Defence, Guide to the Covenant Legislation, January 2021, p3
 Ministry of Justice, Report of the Independent Review of Administrative Law and Judicial Review Reform consultation document, March 2021
 Michael King, Local Government and Social Care Ombudsman, oral evidence to the Select Committee on the Armed Forces Bill, 10 March 2021, Q97
 Michael King, Local Government and Social Care Ombudsman, oral evidence to the Select Committee on the Armed Forces Bill, 10 March 2021, Q96, and written evidence to the Committee, 17 March 2021, paragraph 20
 Councillor Ian Hudspeth, Chair, Community Wellbeing Board, Local Government Association, oral evidence to the Select Committee on the Armed Forces Bill, 10 March 2021, Q56