Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 96, in page 2, line 4, leave out 'shall' and insert 'may'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to take the following amendments: No. 97, in page 2, line 11, leave out 'shall' and insert 'may'.

No. 100, in page 2, line 21, leave out 'may' and insert 'shall'.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I reciprocate your good wishes for the new year, Mr. Benton, and extend them to all Committee members.

I suspect that any member of the uninitiated who is observing our deliberations might be slightly alarmed to discover that at our eighth sitting we are discussing clause 1, but there is of course an explanation for that.

Perhaps you will allow me, Mr. Benton, to say a few words about part 1, which covers statutory paternity, adoption and maternity leave, and pay. There are some general issues concerning the desirability of promoting family life and making it as easy as possible for people to indulge in it. My hon. Friend the Member for West Dorset (Mr. Letwin) will make a well-trailed speech this evening on the creation of a neighbourly society in which people will, to use his phrase, be brought up right. It is part of a wider agenda to address the collapse in the moral fabric of our society and that is essential to us all if we want to live in a prosperous and safe society. It relates to such issues as ensuring that children and young people are properly brought up and educated and that we reduce the endemic crime in our inner cities, much of which, if we read the Government's reports, is committed by very young people. We all have a shared interest in ensuring that children are brought up and educated properly so that our society has the necessary skills to deliver economic prosperity in future and that our future citizens have the civic skills to ensure that we live in a safe and agreeable society. There is no question in my mind of the value of ensuring proper parental attention to children at vital stages of their development, and—perhaps slightly less positively—of proper parental control. Members of the Committee who are privileged to be parents will be familiar with the stage when children stop needing so much attention and start needing a bit more control.

The important point is that society benefits: we need proper parental attention for the good of society as a whole. What the Opposition, and perhaps others, will want to address is where the cost of delivering that benefit will fall. We live in an increasingly materialistic society, and, often, both parents—where there are two parents—work to achieve the lifestyle to which families aspire, and I am certainly not going to knock that.

Having listened to Second Reading and to wider debates, Committee members will expect us to consider the burden that will be imposed, particularly on small businesses, in the interests of delivering what I fully acknowledge is a good to the wider community. The issue is of great importance, not just because business suffers the immediate burden of costs and regulatory compliance, but because if business suffers, we all suffer in the medium to longer term. If business is not efficient and competitive, society will be less prosperous, unemployment will be higher and we will be less able to maintain our competitive position in the world.

We need only look to Germany for a warning spectre of the way in which well-intentioned improvements in employment conditions can have unintended and negative consequences if they are not

carefully monitored. I worked in Germany during the late 1970s and 1980s, when its economy appeared to be gravity-defying. Employment costs were very high, yet the world clamoured to buy German goods. Part of the reason was that skill levels in the work force were also very high, and the unit cost of employment seemed more reasonable in that context. However, the world has caught up with Germany.

Of course, we have our own economic troubles. Two reports published today—by the General, Municipal, Boilermakers and Allied Trades Union, and the Engineering Employers Federation—paint a pretty gloomy picture. The gloom is relative, however, because in comparison with the German economy—Germany is teetering on the brink of having 4 million unemployed—ours looks almost rosy. The lucky ones who are still in work continue to enjoy the generous employment protections and benefits that have been enshrined for the German work force, but the cost is an uncompetitive labour rate in many sectors of German industry, rising unemployment and the export of German jobs to less expensive countries. I know a little about that, because I was involved for some years during the 1980s in the process whereby medium technology business in Germany was expatriated to Estonia, Poland, Czechoslovakia and other countries with lower labour costs. We must beware of that danger.

I realise that this issue tends to give rise to knee-jerk reactions. Conservative Members often talk about burdens on business, and the Government retort that what we call burdens on business are just decent employment protection and practice. However, the argument is subtler and deeper than that and is about getting the balance right and ensuring that burdens do not become so great, or fall on certain sectors in such a way, that they have unintended or negative consequences. One of our concerns is that the Government may impose, by statute, additional costs on employment that apply across the board to world-class competitive industries, which can readily and easily absorb them, and to highly marginal companies that are struggling to keep their heads above water in the face of overseas competitors. That is the problem with the statutory blanket imposition of measures for higher labour costs or less flexibility in the labour market and their indirect costs on businesses.

The matter before us will generate heat, and many of my hon. Friends will wish to contribute to the general debate. I have tabled amendment No. 93 to clause 21 as an artificial construction deliberately designed to allow us to debate the general issue of burdens on business for the benefit of society. My intention is to stay away from that debate until we reach that amendment. I shall deal with preceding clauses and amendments on a more or less technical basis and examine matters that arise from the drafting of the Bill, returning to the broader debate under amendment No. 93.

A seemingly long list of amendments to clauses 1 and 2 lies before us, but most of the amendments are probing and intended to clarify the Government's underlying intentions and draw out details about the regulations that they intend to introduce to the House. I expect that they will be addressed in a quick-fire sequence and that we will race through them at speed.

I now turn to amendments Nos. 96, 97 and 100. I am glad that the Minister for Employment and the Regions, who dealt with the previous clauses, is here. I do not have the exact quote, but when responding to an earlier amendment, which sought to delete ''may'' from a sentence to the effect that ''the Secretary of State may make regulations'', and to insert the word ''shall'', the Minister emphatically told me that ''may'' was part of standard parliamentary drafting and that there are many good reasons for using that word. However, several of clauses in this part of the Bill state that the Secretary of State ''shall'' make regulations. Since I am a spokesperson for the Opposition and the job of Opposition is to oppose, I felt it appropriate to seek to delete ''shall'' and insert ''may'' so as to probe the Minister on what the Committee should read into the language of these clauses, given his earlier comment that conventional parliamentary drafting uses the permissive rather prescriptive form.

A more substantive point is that where the language of the Bill states that the Secretary of State ''may'' make regulations, the Minister will reasonably be able to argue that the Secretary of State may or may not make them. As Ministers often tell us, the beauty of secondary legislation is its flexibility, because regulations can be made and replaced as necessary. Where the language in the Bill is prescriptive, as in the case of new section 80A:

''The Secretary of State shall make regulations . . .

(a) as to duration of employment

(b) as to relationship with a newborn, or expected, child, and

(c) as to relationship with the child's mother'',

the Committee is entitled to ask about those regulations. What will the Secretary of State say about the duration of employment? What will he say about the relationship with a newborn child? What will he say about the relationship with the child's mother?

That is not something that might happen, but something that, as a result of the language in the Bill, will be required to happen. It is reasonable for us to assume that if the Government have written into the Bill that regulations will deal with these issues, they must know how they will deal with these issues and what they intend to say. Why can the duration of employment and the relationship with a newborn or expected child not be stated in the Bill? It is reasonable to expect in a section headed ''Entitlement to paternity leave'' that a specified relationship with a newborn or expected child would be that of a father to a child, which is my understanding of paternity.

Why have we have moved from permissive to prescriptive language and why, given that we have this prescriptive terminology, can we not have the detail in the Bill?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

Happy new year to you, Mr. Benton, and to all on the Committee.

Following the remarks of the hon. Member for Runnymede and Weybridge about the general spirit and thrust of this section, I was pleased to hear his comments, which repeated those that he made on Second Reading, about appreciating its good for the wider community and its effect on business. I shall not talk about events in Germany because it is impossible to discuss that country without taking into account reunification, which was a specific, valuable and necessary part of recent German history.

Basic minimum standards such as the minimum wage have existed in many countries, some of which are outside Europe, for many years. Our historic situation was due not only to employers but trade unions. As I keep reminding some of my hon. Friends, in the 1970s the trade unions opposed the minimum wage and any interference with free collective bargaining; there was a different approach on both sides of industry.

We began to introduce basic, civilised minimum standards into the workplace in the late 20th century, and that means that we can learn from the experiences of other countries. We were meticulous about seeking other views before we legislated. People may criticise the Government on some aspects of the minimum standards that we have introduced—notably, the working time directive was not the best way to introduce new legislation—but on parental and adoptive leave and changes to maternity leave, no one has suggested that we have not taken the time and trouble exhaustively to consult on the changes that we intend.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I agree entirely and intended to make the point that the changes being introduced here already exist in many neighbouring European countries and trade partners. Historically, however, Britain's economic performance, even without the additional employment costs that such measures, whether right or wrong, impose on business—it would be disingenuous to pretend that they do not—has not been so much better than its competitors that we can be relaxed or comfortable about what will happen as further such costs are imposed. Does the Minister share that concern?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

It is a concern. Since 1997 we have introduced a whole raft of new rights. We have done so in a way that has ensured no interference with a position whereby we have the lowest inflation since the early 1960s, the lowest interest rates since England won the World cup and the cheapest mortgages for the past 25 years. We have overtaken Italy and France to become the world's fourth largest economy. Introducing basic minimum standards without damaging the competitiveness of British industry is very important to us. That is why we consulted meticulously. It also explains the difference between our approach to the ''may'' and ''shall'' question in the debates that we had before Christmas and our approach on clause 1.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am pleased to hear the Minister say that it is important to the Government that the changes should be introduced without damaging the competitiveness of British business. What will he do if it becomes apparent over time that they have caused such damage?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

That is why we have introduced the changes so carefully. The same question was raised—not by the hon. Gentleman, but by his predecessor in his shadow post—when we increased the minimum wage to £4.10. Although it was unpopular with Labour supporters before the previous election, we decided that rather than set some mechanistic figure, such as two-thirds of male median earnings, we would set up the Low Pay Commission to consider the matter carefully in the light of particularly vulnerable sectors. We argued that, to paraphrase President Nixon, once the toothpaste is out of the tube, we cannot get it back in again.

We have no intention—neither, I assume, do the Opposition—of introducing basic minimum standards in such a way that they may be jeopardised in future. We intend to introduce them so as not to interfere with this country's economic success. As one employer's organisation suggested, it was ludicrous to suggest, in the seven-day panic post-11 September, that we should not go ahead with the increase in the minimum wage to £4.10 on 1 October. That is a ridiculous way to approach such issues. The best approach is the one that we have taken.

Amendments Nos. 96 and 97 would take the forthcoming regulations out of the realm of certainty and into the realm of near possibility. However, I accept that they were designed to probe our intentions and I am happy to rise to that bait and go through the issues in detail.

I stress that the proposals on paternity and adoption leave are the result of a substantial exercise in public consultation since the publication, well over a year ago, of the Green Paper, ''Work and Parents: Competitiveness and Choice'', and the more detailed framework documents that followed last summer. We consulted as widely as we could and deliberately made no secret of our emerging thinking. I do not say that every detail meets with universal approval—that can never be the case—but every detail was subjected to intense scrutiny. The introduction of adoption rights was the one area that was universally approved. There was not a single dissenting voice against the argument that, in a society in which we need more people to adopt instead of children being in care, it is ludicrous to give absolutely no assistance to adopting parents. Indeed, a Bill to that effect is passing through the House.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

I endorse my hon. Friend's comments. Is he aware that many adopted children are older children with special problems who are supported in residential care? Such support costs society a lot of money, but it does not offer the same love and attention that an ordinary family can provide. That is

one reason why his proposals are welcomed by employer organisations and those who try to persuade people to adopt.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

My hon. Friend is right, and we shall touch on that issue when we discuss further amendments.

A majority of people have said that adoption leave is long overdue, and the introduction of paternity rights has received similarly wide support. We should remember that that was not simply a manifesto commitment but was announced in last year's Budget, and we fought the general election on that basis. It is true that concerns have been expressed about the detail, and we must ensure that the way in which the provision is implemented does not impose undue burdens on business. We will discuss the relevant details in due course, but I reiterate that there was little, if any, straightforward hostility to the general concept. That does not surprise me. I believe that most people, including most employers, now recognise the key role that fathers have to play in caring for newborn children.

As I have said, such concerns as have been expressed relate to detail, and that is why my Department has engaged in close discussion with employers and employees. Detailed proposals were included in last November's framework document—our response to the Green Paper ''Work and Parents: Competitiveness and Choice''—which has been reproduced in the Library's excellent research paper on the Bill. The way in which we intend to frame the regulations is no secret, and we have consulted fully. The detail is included in the Government's published response and elsewhere, and I should be happy to clarify specific issues as we consider the clauses and amendments. It is important, however, for all interested parties to have the chance to comment on draft regulations before they are finalised, and I am happy to confirm that we will consult publicly on drafting before the regulations are laid. I expect the consultation exercise to begin before the Bill completes its legislative passage.

The issues with which amendments Nos. 96 and 97 seek to deal are addressed in various ways. We have used the word ''shall'' because, for example, we will introduce the requirement that the duration of employment must be 26 weeks by the fifteenth week prior to expected date of birth. We have explained the situation in respect of parenting, but the hon. Member for Runnymede and Weybridge none the less raises an interesting point. We are not talking simply about biological fathers; in many cases the woman giving birth has a new partner, who has a role to play in terms of parental responsibility. The principle of parental responsibility has been used before in the introduction of parental leave, and we intend to include it in these provisions. The issues have been highlighted in various documents.

Mr George Osborne (Tatton, Conservative)

Can the Minister foresee a situation in which two men—the biological father and the new partner—could claim parental leave for the same child on the ground that both were helping the mother with the newborn baby?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

I cannot at the moment, but I would not say that such a possibility does not exist. The more we look at the different permutations in 21st century society, the more we have to be absolutely sure that those with a genuine commitment to helping raise a child are able to make the most of the new rights that we are introducing.

Mr Tony Lloyd (Manchester Central, Labour)

My hon. Friend makes an important point. The provision must be driven by the practical needs of families and society as a whole—what is good for all of us. I am unsure whether the hon. Member for Tatton (Mr. Osborne) was trying to raise a spectre, but this is not a moral issue. It is a practical issue about how we help families to give their children the best start in life.

Mr George Osborne (Tatton, Conservative)

May I intervene?

Mr Joe Benton (Bootle, Labour)

Order. That was already an intervention.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

If I stand up, Mr. Benton, perhaps I shall attract another intervention.

Mr George Osborne (Tatton, Conservative)

I thank the Minister.

My point, which I made perhaps flippantly, is that the problem with paternity leave, as opposed to maternity leave, is that it is obvious who is a child's mother but it is not always obvious who is a child's father. Furthermore, the relationship between a mother and a man is not always obvious. Later amendments will deal with the many complications relating to paternity leave, and I was merely illustrating one of them.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

On adoptive leave, for example, we have said that one adoptive parent will qualify for maternity leave and the other for parental leave. Which parent takes which form of leave is a matter for them. We also intend to cater for same sex couples. All those issues will be subject to amendments, but our response to the consultation document sets out in broad terms how we intend to deal with them.

In terms of the particular points at which amendments Nos. 96 and 97 are aimed, we are using ''shall'' for areas in which we have clearly stated that we will introduce regulations. It is standard parliamentary procedure to use ''may'', but not in relation to maternity legislation. Various pieces of maternity legislation have written into them such aspects such as the entitlement in this Bill to

''at least 56 days beginning with the date of the child's birth''.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

If I may build on the point made by my hon. Friend the Member for Tatton, an issue was missed in the previous exchange. Although the child's mother's position will be indisputable, is it not conceivable that two men who legitimately fall within

the definitions envisaged by the Minister could claim to be entitled to paternity leave in respect of the same child? We must know whether it is intended that only one person will be able to claim maternity leave rights and one able to claim paternity leave rights. I am saying nothing about the gender of those people, but it would be inappropriate if two, three or four people could legitimately claim paternity leave rights because they were providing some kind of support or care for a child. Surely that is not what the Minister means?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

In the vast majority of cases there will be one entitlement to paternity leave. I would not rule out a situation in which there are two fathers—a biological father and a father who will take parenting responsibilities because the biological father has left the mother. I am not ruling out, in exceptional cases, an entitlement for two men to claim paternity leave. I am not ruling that in, and I am not ruling it out. All I am saying is that the intricacies of this matter must be examined, which is why the regulations will go out to consultation and why they will be subject to the affirmative procedure. Such detailed matters will be addressed then, and it would be wrong for me to discount anything at this stage.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am grateful to the Minister. He has made his position clear. I am of the OCOF—one child, one father—persuasion. That is a pragmatic approach, given that the Government will be spending public money.

The Minister said that ''shall'' is used because the Government will definitely introduce regulations under the provisions. Are we to infer that wherever in parts 2 and 3 of the Bill ''may'' is used, there is a chance that the Government will not introduce regulations or that it is definitely not their intention to do so?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

I should rather phrase it that we will definitely introduce regulations in the parts of the Bill where amendments Nos. 96 and 97 seek to insert ''may'' in place of ''shall''.

Amendment No. 100 is different, because it asks us to be clear about what we shall do, rather than may do, under regulations. Although the amendment is unnecessary, I am happy to clarify our intentions in respect of the three paragraphs in new section 80A(5). Paragraph (a) relates to those matters that should be taken to constitute caring for the child and supporting its mother. The Bill already allows paternity leave to be granted for those general purposes. The paragraph merely allows us to be more precise, if we so choose, about what caring and supporting means.

It is entirely possible that we will not want to introduce any regulations under paragraph (a). We are likely to take the same light-touch approach to paternity leave that we have taken to parental leave and not become too prescriptive, through regulations, about the circumstances in which leave can be taken, reserving such matters for the non-statutory guidance that we provide. Nevertheless, we need to have the option of regulations available to us.

Mr George Osborne (Tatton, Conservative)

Is the Minister saying that the Government may find themselves unable to prevent someone from claiming paternity leave, then going on a two-week holiday, leaving the mother behind, without being required to pay any attention to the child on whose behalf they claimed the leave?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

No, I am not saying that at all. I am talking about regulations made under new section 80A(5)(a), in which we may

''specify things which are, or are not, to be taken as done for the purpose of caring for a child or supporting the child's mother.''

We have a power under parental leave legislation to introduce regulations, but we have never found it necessary to do so, because it can be dealt with in guidance. We may or may not, but probably will not, introduce regulations in that respect.

The hon. Member for Runnymede and Weybridge asked whether the Committee can assume that wherever ''may'' is used we are not entirely sure whether we will need regulations. In relation to subsection (5)(a), that is so. Paragraphs (b) and (c) are different in that we believe that regulations will be necessary.

There is a difference between amendments Nos. 96 and 97 and amendment No. 100. In respect of the first two, we have clearly set out what we intend to do; it is a matter of public record. On the third, we need to use ''may'' because we may not need to introduce regulations. I hope that the hon. Gentleman will withdraw the amendments.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

I shall make only a brief contribution. We support the introduction of paternity leave, which in our view is long overdue. As the Minister said, we lag well behind many countries in introducing such rights. I have not noticed any great opposition from business or business organisations to the introduction of what is a modest proposal. It is important that Parliament recognises the role of the father in bringing up a child at the start of the child's life, so I hope that everyone will support the introduction of this provision. It is sensible to use ''shall'' because it presents an absolute commitment to the introduction of regulations for paternity leave. It also seems sensible to require that the regulations set out the extent and timing of those rights.

As a general rule, I prefer the details to be set out in the Bill rather than in regulations. However, it is pragmatic to provide for such details by way of regulations because it introduces an element of flexibility so that, after a time, regulations can be assessed and changed, if necessary, in the light of experience. We are happy to support the general thrust of the clause, which is fine as it stands. The amendments, which we appreciate are probing, are unnecessary.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

As the hon. Member for North Norfolk (Norman Lamb) has not tabled any amendments, we can deduce that the Liberals find that this part of the Bill is fine as it stands. In the days to come, I hope to show why it is not.

The hon. Gentleman's point that regulations have their place because they are more flexible and can be more easily changed would stand up better if it were not for subsections (3) and (4). They deal with the fact that regulations are to be made and give detailed prescription of what the regulations are to say. They state that

''he is entitled to a single period of leave of at least two weeks''

and that the regulations will state that that leave will be

''taken before the end of a period of at least 56 days''.

There can be little flexibility in secondary legislation if it is constrained by the Bill. We shall return to that point in a later amendment. I cannot see the point of writing into the Bill a requirement on the Secretary of State to make regulations, pleading that secondary legislation is better because it is flexible and can be changed more easily, and then including a specific constraint in the Bill as to what secondary legislation can say.

The Minister has struggled to justify the arcane use of parliamentary language. The truth of the matter is that some legislation routinely uses one form of language and other legislation uses another. The Bill amends different Acts, and that leads to an uncomfortable incompatibility of language. It is the way in which the Employment Rights Act 1996 has been generally framed that has led to the use of ''shall'' in this Bill; other Acts are framed differently. Another example that will be dealt with later is that the Social Security Contributions and Benefit Act 1992 uses the curious term ''ceased to work''; an employee has ''ceased to work'' for an employer. The Employment Rights Act 1996 uses different language to deal with the same situation and later in the Bill those two different uses of language can be seen, strangely, side by side.

The Minister said that the Committee should be alert to the fact that the Government's intentions in paragraphs (1), (2) and (5) of new section 80A are different because the Government might not introduce regulations under new section 80A(5)(a), and I understand why. A later amendment will probe the Government on that. However, as the Minister has raised the matter, perhaps he will clarify now whether failing to specify in regulations what is or is not to be taken as done for the purpose of caring for a child will inevitably mean someone else having to make that determination. I presume that the remedy for someone who is denied paternity leave by his employer because his employer did not believe that he had satisfied the conditions would be to make an application to an employment tribunal, which would then have to determine the issue, or will the employer be put on the spot to determine the issue? That is slightly uncomfortable, but our debate has been rather wide--it basically concerns ''shall'' versus ''may''--and we may have an opportunity later to consider more specific matters.

I hope that we can conclude that parliamentary language is arcane and not often helpful in divulging the underlying purpose. I am grateful to the Minister for his explanation, as far as it went, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 95, in page 2, line 6, after 'employment,' insert 'with his present employer'.

This is a probing amendment. The Bill refers to regulations specifying conditions covering duration of employment and the amendment probes the Government on whether they intend that the condition that the employee must satisfy will relate to a period of continuous employment with the present employer--the employer who is liable to grant the leave--or whether the provision will be more general and cover continuous employment over a specific period.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

I can give the hon. Gentleman the assurance he seeks. The amendment is unnecessary because our proposed regulations, as with those that we have already made on parental leave, will express the service qualifications as a period of continuous employment as defined for the purposes of the Employment Rights Act 1996. The definition in the Act provides that continuous employment is generally employment by one employer, but there are a few exceptions--for example, a change of employer resulting from a takeover is disregarded. We believe that those exceptions should apply to paternity leave as well as to parental leave.

The amendment is unnecessary and I am happy to give the hon. Gentleman the assurance that he seeks.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am satisfied with that explanation, Mr. Benton, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 102, in page 2, line 12, leave out 'the extent of'.

This amendment would provide economy of drafting, but in rejecting it the Minister may say that there is more significance in new section 80A(2), which states:

''The regulations shall include provision for determining--

(a) the extent of an employee's entitlement to leave under this section''.

Regulations including provision for determining the extent of an employee's entitlement are not markedly different from regulations including provision for determining an employee's entitlement. Can the Minister explain whether there is any significance in the words ''the extent of'' or could they be removed in the interest of economy of drafting?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

There is no significance. During the previous Parliament, several former distinguished Members were involved in an initiative on drafting Bills in clear English, but that seems to have come to a

grinding halt. The amendment is unhelpful because new section 80A(2)(a) was drafted in the same way as section 76(2)(a) of the Employment Rights Act 1996, which deals with entitlement to parental leave. Our intention in the drafting of clause 1 on paternity leave was to mirror as closely as possible the provisions in existing legislation on maternity and parental rights. The details of the regulations will not be identical, but it would not be helpful to have differently drafted enabling powers in primary legislation when it is unnecessary. That would imply to those reading the text that we had a different notion in mind, which is not so. With that explanation, I hope that the hon. Gentleman will withdraw the amendment.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I agree with the Minister's sentiments on economy of drafting. People will listen to his words and take note of them in due course. I do not want to pursue the issue, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 99, in page 2, line 14, at end insert

'and the requirements for consultation between the employee and his employer as to when such leave may be taken'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to take amendment No. 132, in page 8, line 19, leave out 'may choose' and insert

'shall agree with his employer'.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The amendments would apply to different parts of the Bill but cover the same point. They would require the regulations not only to make provision determining when leave may be taken, but would impose a requirement to make provision for consultation between employee and employer. I said earlier that paternity leave must not be seen as a benefit or handout for the personal welfare or good of the person receiving the leave, because it is not leave in the sense of rest and relaxation. In most cases, if it is properly used, it will probably be harder work than being in the workplace. It is for the good not of the person taking the leave but of the family and society as a whole--a concept that I think we have all embraced. It should not be something applying to the employee unilaterally. We heard a lot about balancing work and family commitments and balancing means having due regard to the needs of both. Most employees would expect their employers to be reasonable in recognising their real needs and family circumstances and we have had the opportunity in the Committee to consider examples. People may need to work slightly different hours from their colleagues because they have an obligation to drop a child off at school or to pick a child up from school. It must work both ways and the words that amendment No. 132 would omit suggest that the date on which leave is taken is simply a matter for the employee to choose, which is rather one-sided. That takes us rather unhelpfully away from the idea that the process is collaborative with broad benefits and returns to the old adversarial style.

I would prefer regulations requiring some consultation between employee and employer. I do not want to expound at length on where the balance of power should lie in that negotiation and who the ultimate arbiter should be. However, before the employee simply slaps in his notice stating that he will not be at work from such and such a date to such and such a date, I should like to think that it was reasonable for a discussion to take place, particularly in relation to small businesses, where the absence of an employee could have a serious effect. For example, the employer might say, ''Look, Fred, you know Monday is our busy day. How would you feel about starting your paternity leave on Tuesday? Would that be a particular problem for you?'' We should at least provide for the possibility of creating a mechanism that enables discussion, so that the needs of the employer, as well as those of the employee's family, can be taken into account. That would seem very much in the spirit of what the Government have promoted as a work-family balance.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

I should be grateful if the hon. Gentleman could offer a little further explanation. I understand the concept of consultation and discussion, and one would hope that that would take place in any good relationship between an employer and an employee. However, amendment No. 132 goes further than that by referring to agreement between an employer and an employee. Under it, what would happen in a scenario in which an employer stonewalled an employee and no agreement could be reached?

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I acknowledge the hon. Gentleman's point. The amendment, which would insert the phrase

''shall agree with his employer'',

is a probing amendment that goes to the opposite extreme. The phrase

''such date . . . as the person entitled may choose''

is at one end of the spectrum, and a phrase such as ''at such date as the employer may notify him'' is at the other. In my view, neither is acceptable, and we must try to find common ground. Unfortunately, where one party does not have the power unilaterally to impose his will on the other, there may be an inability to agree. A resolution procedure might therefore have to be adopted that consists of using a sledgehammer to crack a nut.

In tabling the amendment, my purpose was not to argue passionately for the language used in it, but to ask whether the Minister accepts that, within reason, employer and employee should recognise their differing needs and attempt to agree about the time at which leave will be taken. That would seem to be in the spirit in which the Government have presented this part of the Bill. An employee might want to agree with the employer that he has considerable flexibility, and I shall table later amendments that would introduce more, not less, flexibility for the employee.

If we are to introduce this provision, we should do so in a way that reflects the real needs of people. Otherwise, the exercise will become meaningless and people will take their lump of leave not because they

need to deal with real issues, but simply because it is there. For example, it is quite likely that an employee will to want start his period of paternity leave literally before the birth of the child. He might wish to commence it on little notice, at the very point when his wife rings him up and says, ''I think it's coming.'' As drafted, the Bill does not offer that flexibility. It states that leave must be taken before the end of the period of 56 days, beginning with the date of the child's birth. That does not seem very helpful.

Does the Minister think that such inflexibility and one-sidedness is helpful, or is he prepared to think again and include a gesture towards a consultative approach to working out the times at which such leave can be taken? I suspect that the Bill provides for the taking of such leave in a single two-week block in an effort to help employers, but later amendments will highlight the fact that, in some circumstances, that might be unhelpful. I can think of many circumstances where small businesses might consider it far more preferable for such leave to be taken in two one-week periods, with a week or two in between. It strikes me as absurd that if an employee would prefer to take their leave in two blocks and their employer would prefer them to take it in two blocks, Her Majesty's Government should decree that it must be taken in a single block. The issue is one of flexibility.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

The hon. Gentleman made the good point that there may be circumstances in which taking leave before the birth of a child would be helpful from an employee's point of view. That would seem to offer increased flexibility, which makes sense. Does he feel, however, that that argument contradicts the amendment's purpose? There may be a situation in which an employee's wife or partner is in hospital and the phone call comes in, but the amendment requires a period of consultation before an employee can take paternity leave.

There are some limited circumstances, of which maternity leave is one, in which, under the legislation, the employee is able to say, ''This is when I am taking my leave.'' From the father's point of view, paternity leave, limited as it is to two weeks following the birth of a child, should be regarded in the same light as maternity leave for women. The employee should be able to say, ''This is when I am taking my leave because this point in my child's life is when I need to be with my child and partner.''

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I hear what the hon. Gentleman says, and I am not rigid about the language that I have adopted because I am trying to elaborate a general principle. For example, if the father in question, the person claiming the paternity leave, were David Beckham, it would be reasonable to ask whether he could start his period of leave on Monday rather than Saturday.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

I would not want to negotiate that with Alex Ferguson.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

There may be examples in which common sense and consultation are sensible and appropriate, and I should like to hear the Minister's view. Having spent 11 sittings in Committee, I am beginning to get the hang of his body language and I do not think that he will find the suggestion wholly ludicrous, although I take the hon. Member for North Norfolk's point that it would raise some practical issues. Nevertheless, I should like to hear a gesture in the direction of a consultative, rather than a wholly one-sided, approach.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

If my body language said anything, it was that I am not unsympathetic to the hon. Gentleman's points about consultation between employers and employees.

The hon. Gentleman made a case about David Beckham. I remember, as a fan of Queens Park Rangers, a situation in which Martin Allen, famed midfielder that he was, left the club because the then manager, Trevor Francis, would not allow him to take a Saturday off to attend his child's birth.

I am not unsympathetic to the hon. Gentleman's point about discussion, but I have difficulty with the amendment. When we consulted employers their major point was that they wanted plenty of notice and certitude. I must make it clear that we are introducing an inalienable right to take a limited period of time off around the birth of a child. We have made it clear that the employee must give 15 weeks' notice, self-certificate and specify the date of birth. One problem concerning the provision of paternity leave when a woman goes into labour is that fathers are concerned that they would use up some of their leave if it were a false call, which would leave them short of leave when the child was born. Both sides told us that they needed certitude.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister has referred to an inalienable right to some time off around the birth of the child. To ensure that I have not misinterpreted the Bill, does that mean not around the birth of the child, but following the birth of the child?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

Yes, it is following the birth of the child. They could decide to specify either from the time at which the child is born or a two-week or one-week period further into the two months. If they ask for, say, a two-week period, then change their minds, they will have to give 28 days' notice of the change. During consultation, employers told us repeatedly that they had no problem with that approach. They do not want the power to prevent the employee from taking paternity leave, but do want the greatest possible advance notice of his plans so that they have time to make proper arrangements to cover for the absence. Our scheme provides for that. The notice of planned absence has to be given in the fifteenth week before the baby is due. That is 15 weeks' notice of a maximum of two weeks away from work—a lot more than is often required of people taking annual leave.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Is the Minister saying that there will be a requirement for the father to specify a date 15 weeks out, or will it be sufficient for him to specify from

the date of the birth? If it is the latter, the Minister has not achieved what he claims that employers were anxious to achieve—that is, absolute certainty about the date. As we all know, there is no absolute certainty about the date of a birth.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

Of course there will be exceptions—for example, when a baby is born prematurely. As the hon. Gentleman will remember, because he dealt with the revised regulations, parental leave taken in blocks of four weeks can be deferred for up to a certain period if the employer believes that it will have a damaging effect on the company, excluding the time when the child is born. Fathers who want to be there when the child is born have that inalienable right. Admittedly, 15 weeks' notice will not always be perfect because the baby may be born prematurely. However, having talked the matter through exhaustively with employers and others, I do not think that there is a better way to approach it.

The hon. Member for North Norfolk said that one of the problems with amendment No. 132 is that it does not specify what the consultation should be, and that also applies to amendment No. 99. Employers would be worried about moving from the situation under the Bill, in which they are given plenty of notice and both sides understand completely what is required of them, to a situation under the amendment in which there would be a requirement to consult.

I sympathise with the idea that there should be discussion between the employer and the employee, which happens in the vast majority of existing cases. However, that should not detract from the basic right that we are introducing, which is associated with long periods of notice and a light-touch approach. The hon. Member for Runnymede and Weybridge must have consulted businesses prior to the Committee. I should be surprised if any employer group told him that this is an important issue, because that is not the feedback that we received during our long and exhaustive consultations.

Mr Tony Lloyd (Manchester Central, Labour)

Will my hon. Friend clarify one point? He said earlier that the right comes into effect only after the child is born, yet he just referred to an inalienable right to be there at the moment of birth. Can he clarify exactly where in the Bill the right kicks in?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

I said that the father has an inalienable right to take a limited period of time off around the birth of his child because we have allowed him take time off within two months. Many fathers and groups said that parental leave is not always wanted at the time of birth, but during the week after that when the mother comes out of hospital. The period of this proposal starts from the time of birth and does not precede it.

Mr Tony Lloyd (Manchester Central, Labour)

I have a lot of sympathy for the problems that parents face; most of us have been through them. It is obviously desirable for the mother to have her partner around. My hon. Friend the Minister said ''around'' the time of birth, but I am not clear whether we are talking specifically about after the time of birth

or around it. Many of us would like to see the right to consultation on the idea of the norm that a mother could expect a partner to be able to be at the birth. I have much sympathy with the arguments about flexibility and I hope that the Minister can convince the Committee that the norm will be that the mother's partner is able to be at birth. Flexibility would allow parents and employers to enter into consultation. If parents and employer agreed that a more flexible arrangement would be better, that should be allowed for in the wording of the Bill.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

Obviously, employers are perfectly free. This package will be set in law and it is a right to which everyone is entitled. Various agreements, which employers reach with employees, will be different from the package. The right that we are introducing begins from the time of birth. I take the point that ''around'' the time of birth could mean before or after birth, but this statutory right applies from the time of birth and not before.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

On a point of information, can the Minister confirm whether he agrees with my understanding that there is an existing statutory right to time off for family emergencies and that that would entitle an employee to have time off to be with a partner upon the birth of a child, albeit unpaid? That may not be a correct interpretation, but the Minister may want to comment on it.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

I am sorry—I was distracted. I will allow the hon. Gentleman to intervene again after I make one point. I have been reminded that our original 1999 proposal suggested that the period would apply from the time that the woman went into labour, and flexibility would exist before and after that time. The response to that consultation convinced us that that would not be the right approach. If I have missed the hon. Gentleman's point, I will allow him to intervene.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

My understanding is that the right to time off for family emergencies, which is a right to unpaid leave, gives an employee the right to take time off to be present at the birth of a child. That period would be unpaid before the paid right clocks in under the proposed legislation.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

The hon. Gentleman is right that the provisions introduced on 15 December 1999 allowed for time off to be given for domestic emergencies and would cover the situation in which a woman goes into labour but the child is not born until later. Other safeguards, such as unpaid leave, therefore exist.

If the hon. Member for Runnymede and Weybridge says that there should be consultation he is suggesting that things are not as clear cut and definite as we have made them in the Bill. His suggestion would not be welcomed by small businesses. It is problematic to suggest consultation but not suggest how it would work. The pay aspect is another problem, as the hon. Member for North Norfolk said. I believe that this is the best system for employees and employers.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am certainly not suggesting that it would be a good idea to establish a requirement for consultation without specifying how a dispute or lack of agreement might be resolved. I said at the outset that the amendment is a probing amendment. This is a complex area, and I was hoping to elicit from the Minister a commitment to the principle of consultation, and to the use of language that makes such commitment clear.

In resisting consultation on, or any form of dialogue about, when such time off is to be taken, the Minister used the rather emotive example of a father's natural desire to be present at the birth. He says that one cannot negotiate on that—one must simply do it when it happens. I am not disputing that, but let us consider the father who says, ''I've got the mother-in-law staying for three weeks, so I will not be taking my paternity leave at the time of the birth. I want to take it a little further down the line, within the 56-day limit.''

One could come up with 100 extreme examples that illustrate the need for some form of dialogue. The person who is employed as Father Christmas at Harrods might be thought less than co-operative were he to insist on taking his two weeks terminating on 24 December. It would be rather more convenient if he could take them in the two weeks following Christmas.

Mr Kevin Hughes (Doncaster North, Labour)

I have a great deal of sympathy with the line that the hon. Gentleman is pursuing, but the argument is somewhat academic. I have every confidence that such consultation will take place, particularly in small businesses where people work together closely. We are not living in the 1960s, 1970s or early 1980s. Most employers treat their employees as their best asset. I am sure that, in the real world, people will accept that the right exists to two weeks' paid leave, and employers and employees will work out between them when they will be taken. The argument is worth while, but it is somewhat academic.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I accept that what the hon. Gentleman says will prove right in the large majority of cases. In most small businesses, it is inconceivable that no discussion would take place. In this case, however, given the language of the Bill, we are talking about whether the employee, not the employer, is a reasonable, decent person. We are considering cases where an employee shoves a piece of paper at his employer that states, ''I'm off next Tuesday.'' Not all employees behave as reasonably as the great majority. Having watched some of the employees of South West Trains on the television in the past 48 hours, I find it hard to imagine them turning up on Tuesday morning and sitting down for a cosy and constructive chat with their superior about when they should take paternity leave. Unfortunately, in certain situations an invitation to act formally without consultation will be taken up.

I do not disagree with what the hon. Gentleman says, but if he is right it would be nice if the language used made a gesture in that direction. Nor do I

disagree with the view of the Minister and the hon. Member for North Norfolk that it would be quite difficult to frame my suggestion in workable language, and to facilitate consultation while enabling resolution of a failure to agree. Perhaps we should think a little more about the matter, and return with constructive suggestions as to how we might proceed.

One important point that has emerged from this debate—we will discuss it further in relation to amendment No. 105—is that there is no flexibility, no matter how co-operative employers and employees wish to be, over the starting date for statutory paternity leave and, consequently, for statutory paternity pay. If an employee begs his employer on his knees to allow him to start his statutory period a week before the birth because his wife is in hospital with complications, the employer cannot agree to that. As the Minister said, he could agree to give the employee an additional week of leave, but he would still retain the absolute statutory right to the two weeks starting from the date of the birth. That is wrong.

We will return to this when we reach amendment No. 105 and, perhaps, on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 103, in page 2, line 14, at end insert—

'(c) what evidence shall be required of satisfaction of the conditions under subsection (1)'.

The amendment seeks to add to new section 80A(2) a requirement that the regulations will provide for what evidence is required to satisfy the conditions in subsection (1). It is reasonable that the employer should have that requirement set out. The Minister will probably tell us that simple self-certification is all the evidence that is required. However, that would be a somewhat evasive response. Of course, one can choose to allow individuals simply to state that they satisfy conditions, even if they manifestly do not. The phrase commonly used in legal documents is, ''except in the case of manifest error''. When a chap turns up to make a self-certification statement and it is perfectly apparent that it is not true, what is to be done? Will any further evidence be demanded in support?

The Minister told us that he does not expect to make regulations under new subsection 5(a), which defines what is or is not

''to be taken as done for the purpose of caring for a child or supporting the child's mother''.

None the less, new subsection (1) stipulates that to satisfy the conditions, the employee must not only satisfy certain requirements about duration of employment, relationship with the child and relationship with the mother, but must be absent on leave

''for the purpose of caring for the child or supporting the mother.''

As a general principle, it is not good practice to make legislation that is completely unenforceable and cannot be policed. Clearly, the Bill intends that people should take time off for the purpose of caring for the child or supporting the mother, but the Minister would have to admit that in practice it will be impossible to

distinguish between the chap who is caring for the child and supporting the mother and the cad who is in the snooker hall for the whole two weeks.

Can the Minister explain the point of this provision? While he is at it, can he be a little more explicit about how he envisages that the condition that absence from work on leave is for the purpose of caring for the child or supporting the mother will be fulfilled?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

As I understand it, the amendment suggests that an employee should be required to produce evidence of his entitlement to paternity leave, although the hon. Gentleman took it a bit wider than that. I assure him that we have talked about this long and hard. It is unlikely that a huge problem will be caused by people seeking to get paternity leave just for the joy of having a couple of weeks off on £100 a week. That is, nevertheless, something that we have considered carefully. When we examined the details of paternity leave, we tried to stick as closely as we could to the maternity leave provisions.

With regard to maternity leave, it is certain that there is proof in advance of the fifteenth week before the woman expects to have her child. There is also form MATB 1, which is issued to a mother by her midwife. It can act as proof of her condition, and it can be shown to an employer.

Paternity leave is less clear cut, and it is especially unclear before the birth of a child. We want fathers to give proper advance notice to their employer that they will be taking paternity leave, and, as I have said, that period will be 15 weeks, which will allow employers to plan ahead with certainty.

With the best will in the world, it is impossible for the employee to prove his relationship with the expected child. He can assert that he believes that he is its father, but he cannot produce firm evidence. That is an easily comprehensible issue on which the hon. Gentleman said, ''How can the father do that? It is totally impossible.'' When we consulted with employers, the one message we received over and over was that they wanted nothing to do with investigating and policing the private lives of their employees; hence the self-certification proposal. Given that there is no firm evidence of paternity short of a DNA test when the child is born, the last thing that employers want to do is to wade through evidence and take a view on whether a particular employee is or is not likely to be the father of a child.

Mr George Osborne (Tatton, Conservative)

When the Minister's Department drafted the legislation, did it consider the possibility of getting the mother to countersign the self-certificate so that there was proof that she knew that she had a relationship with the man who was claiming paternity leave?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

I must say to the hon. Gentleman that that idea is not robust. As in all these cases, that idea was mooted during our long discussions. Employers said that they wanted nothing to do with policing their employees' personal lives.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister has slipped into the use of language for which he would have shot me down. He is discussing paternity as a biological issue. My understanding of his intention is that he wants to focus not on biological paternity, but on the role of a person in relation to a child, and the woman who is giving birth to that child. We are not discussing biological fatherhood; we are discussing how to establish that there is a relationship and a clear intention to play a role in caring for the child or supporting the mother. Will he clarify whether that is the focus of his intentions?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

The vast majority of people who seek to take paternity leave by informing their employer will be biological fathers, and that is where the major question arises. People who are not the biological father but apply for paternity leave because they have caring parental responsibilities and their partner is due to give birth are another aspect, but they are not the main focus. It does not matter what case we are considering because employers were vociferous in saying that they wanted nothing to do with investigating whether information was correct.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

On that basis, will the Minister clarify whether the relationship with the newborn child that he expects to specify as satisfying subsection (1)(b) will be that of biological father to the child? Will the regulations refer to biology?

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

On subsection (1)(b), the relationship will be with the biological father. On subsection (1)(c), it will be with the natural father or partner at the time of birth.

What do we intend to do? This is a standard self-certificate asserting that an individual applying for paternity leave meets the eligibility criteria and is therefore entitled not just to paternity leave, but to paternity pay. The certificate would protect employers from having to make invidious decisions. They would rely on the certificate as proof that their employee qualified for the entitlement and that they should be reimbursed by the Inland Revenue for the paternity pay. They will not be expected to check any further than that.

We must be conscious of the possibility of fraud on the part of employees in asserting that they have an entitlement to paternity leave and on the part of employers who might try to claim money from the Inland Revenue for paternity leave that their employees did not take.

The Government and the Inland Revenue believe that the risk of fraud is very low. The vast majority of employers and employees comply fully and happily with their obligations under other payroll-based schemes and we do not expect this scheme to be different. However, we have borne in mind the possibility and we shall later consider clauses covering the precise administration arrangements for the new pay schemes and the penalties that will apply in cases of non-compliance.

With that explanation, I hope that the hon. Gentleman will withdraw his probing amendment.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister is rather more old Labour than I expected and I have left myself on a limb with a rather more progressive expectation of the definition of relationship with a newborn child than the Minister is proposing. I am pleased that he is taking a sensible approach.

The Minister addressed the question of redress and said rightly that employers cannot be expected to deal with investigation or decision-making. However, a substantial part of the cost of the paternity pay scheme will be borne by taxpayers and there must be a way of dealing with fraud either by employees or employers. My suggestion later in the Bill is a simple provision that notification of paternity under the clause should be passed to the Child Support Agency. The possibility of being held liable for maintenance payments would be an effective deterrent to spurious, flippant claims of paternity.

The Minister has clarified a number of important issues during this short debate, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 98, in page 2, line 15, leave out subsections (3) and (4).

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to take the following amendments: No. 104, in page 2, line 17, leave out 'a single period of'.

No. 105, in page 2, line 20, after 'date', insert

'which is ten days before the expected date'.

No. 101, in page 2, line 27, leave out paragraph (c).

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

These probing amendments are rather diverse in their effects, so I shall deal with them one at a time.

Amendment No. 98 would delete subsections (3) and (4) from new section 80A to the Employment Rights Act 1996. I made the point earlier to the hon. Member for North Norfolk that it is bizarre to provide in subsection (1) that the Secretary of State shall make regulations, instead of putting detailed provision in the Bill, claiming, as Ministers routinely do, that regulations are more flexible and can be changed without time having to be made available for primary legislation, but then including in the Bill a detailed provision prescribing what the regulations must say. That is a strange way to proceed and totally undermines the argument that regulations are more flexible and more easily changed; they are, in fact, constrained by subsections (3) and (4). Can the Minister say what the justification is for using an architecture in the Bill that creates obligations to make regulations—prescribing that substantive regulation is to be dealt with by secondary legislation—while having primary legislation specifying, in some detail, what the regulations will say?

Amendment No. 104 addresses an issue that has been dealt with en passant. Line 17 of new section 80A specifies that there will be

''a single period of leave of at least two weeks.''

I assume that that was included in an attempt to be helpful to employers because it is a restriction on the flexibility that an employee enjoys. I understand that in many cases it will be beneficial to the employer to take leave in a single block of two weeks, but it is frankly silly that we could have a situation in which neither the employer nor employee wants the leave to be taken as a single block and yet the law requires it to be so taken. I suggest that if there is agreement, and only if there is agreement, between the two parties, leave can be taken in some other way. What would be the harm in that?

Mr Norman Lamb (North Norfolk, Liberal Democrat)

The legislation provides a right and provides for the regulations to allow the employee to take less than the maximum time. Given that that it is a right and that there is no obligation to take it, surely the employer could say to the employee, ''Okay, you can take two days off this week and two days off next.'' The employee can agree to take less than his entitlement and the employer can agree to give him a couple days off the following week.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister will correct me if I am wrong, but the employer and employee cannot agree that the two-week period should be taken in any form other than a single block and count it as statutory paternity leave eligible for statutory paternity pay. I am interested to hear the Minister's response to that difficulty. I am sure that that line was included with the intention of being helpful to employers, but I am not sure that it achieves that.

I am sorry that the hon. Member for Manchester, Central (Mr. Lloyd) is not here because he has already spoken about the issue addressed by amendment No. 105. It contains the straightforward, pragmatic suggestion that, regardless of whether paternity leave is good or bad, imposes costs or not, if it is to exist it should be as beneficial and as useful as possible. A period of leave that starts only on the date of the child's birth is unnecessarily restrictive. In many cases, particularly those in which there are other children in the family or in which complications occur prior to birth, it would be more helpful to have part of the leave prior to the date of birth rather than entirely after it. If the Minister is dead set against any flexibility on the starting date, will he explain why? What is the Government logic behind the idea that such a period of leave is good if it starts at the date of birth and bad if it begins before that date?

Amendment No. 101 would leave out subsection (5)(c). The paragraph allows regulations to

''make provision enabling an employee to choose to take a period of leave under this section which is shorter than the period of leave to which he is entitled.''

That is a general, permissive power. The regulation may provide for an employee to take an unspecified period of leave shorter than the two-week period. However, the explanatory notes tell us that the Government are crystal clear about what they will do.

They will allow people two choices—two weeks in a single block, or one week. What is the point of putting the provision in a general and rather misleading form when the Government's intention is specific? In my view, the Bill should state that regulations may or shall make provision enabling an employee to choose to take a single week of leave under this section rather than the two-week period to which he is entitled. Why have the Government chosen such woolly, imprecise language when the notes state that their intention is rigid and crystal clear?

Mr Norman Lamb (North Norfolk, Liberal Democrat)

On amendment No. 98, the hon. Member for Runnymede and Weybridge suggested that the proposed new subsections (3) and (4) comprised very detailed, prescriptive rules, which undermined the flexibility provided for by the use of regulations. The provisions in those subsections, however, could never be described as very detailed and simply provide a bottom line of a minimum of two weeks. As I said earlier, that seems a modest proposal—a basic entitlement that I hope everyone would sign up to.

Proposed subsection (4) simply gives the time frame within which the period of leave must be taken. Again, being pragmatic, 56 days seems pretty sensible as a period within which paternity leave should be taken. I do not consider the measures to be detailed. They set the bottom line and a time frame within which the detailed rules can be set out by way of regulations. I do not see the logic behind the hon. Gentleman's argument on those two provisions.

The benefit of the provision for a single period is that from the point of view of both the employers and the employees it achieves simplicity. It is much better for everyone to know that the statutory entitlement is to a single period and for us not to meddle with that basic provision.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Will the hon. Gentleman explain what would be the difficulty with allowing the employee and the employer to agree in writing that that two-week period might be taken as two separate weeks?

Mr Norman Lamb (North Norfolk, Liberal Democrat)

I do not think that there is necessarily any difficulty with that. I do not necessarily oppose the idea of the leave being taken as two separate weeks within the 56-day period. It makes sense from everybody's point of view to keep the maximum period of two weeks, but I do not, as a matter of principle, object to the Opposition's suggestion—I just think that it makes things more complicated.

On the 10-day period before the birth of the child and if I may make a rather pedantic point, it seems odd to have paternity leave when a child has not yet been born. The hon. Gentleman described a situation involving complications and the mother being in hospital. There is already an entitlement to time off in such family emergencies so that an employee can look after either other children at home or a partner who is in hospital. It is better to rely on that existing statutory right for the period before the birth and to preserve the two-week entitlement for the important period right at

the start of a child's life. It makes sense for the entitlement to apply from the birth of the child onwards. The provision would, through regulations, allow the employee to take less than the maximum period. I agree that it seems sensible that the Bill should specify more precisely that the period can be one or two weeks.

Mr Mark Tami (Alyn & Deeside, Labour)

Thank you for giving me an opportunity to made a contribution, Mr. Benton. It is a pleasure to serve under your excellent chairmanship.

On amendments Nos. 104 and 105, I ask the Minister to consider the question of flexibility while maintaining entitlement. Fathers may want to take all their leave—the whole two weeks—in one block, but may equally want to take it in smaller blocks because of the needs of the mother and child. In most circumstances, I hope that that could be sorted out between the employer and employees, as my hon. Friend the Member for Doncaster, North (Mr. Hughes) said. As other hon. Members said, that may suit employers, but we must clearly protect the overall entitlement.

Mr Brian Cotter (Weston-Super-Mare, Liberal Democrat)

Would allowing shorter periods not put employees under pressure to take only a few days or a week at a time rather than taking the whole block together?

Mr Mark Tami (Alyn & Deeside, Labour)

I hope that that could be worked out between the parties, although I would not want people to put their name to anything. I am looking at the matter from the employee's point of view, because the two-week block may not be suitable to the needs of the mother and child.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Because of the hon. Gentleman's privileged position on the Labour Benches, he may have access to information that I do not have. You will notice that the Minister has moved his chair, Mr. Benton, so as to keep a wary eye on the hon. Gentleman. Does the hon. Gentleman recognise that there is an interrelationship between paternity leave and paternity pay? Under the paternity pay regulations, there is a specific provision preventing any form of contracting out, making void any agreement that purports to contract out of the detailed arrangements. That is the difficulty that worries me.

Mr Mark Tami (Alyn & Deeside, Labour)

As I have said, I am simply asking the Minister to reconsider the area and think about some of the comments that have been made.

I disagree with amendment No. 105, but it does raise the question of the expected date of birth. We should consider the circumstance of a birth that is very early, when the mother and child spend a long time in hospital. Will the Minister consider at what stage that period would eat into the period when leave must be taken? Obviously, we should take into account such special circumstances. We would not want the timing to be so tight that the father would be forced into a difficult position.

Mr George Osborne (Tatton, Conservative)

I add to the words of my hon. Friend the Member for Runnymede and Weybridge a welcome recognition of the new rights being given to fathers. I have a dual interest in the matter: I am the constituency Member of Parliament for both David Beckham and Alex Ferguson.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

Alex Ferguson did not vote for you.

Mr George Osborne (Tatton, Conservative)

The Minister is right. In fact, Alex Ferguson appeared all over the leaflets of my Labour opponent, Steve Conquest, a most inaccurately named gentleman. I also have a personal interest because I became a father for the first time a week after the general election. Sadly, I do not remember my Whips being as family-friendly as the Government's current proposals for many employees.

On a more serious point, I think that sometimes in the past the Conservative party has had an employment policy, but not a policy for employees. We have got into a muddle in talking about parents playing an active role in bringing up their children and, at the same time, placing burdens on business through maternity and paternity leave. However, I find myself in the happy position of supporting my hon. Friend the Member for Runnymede and Weybridge in calling for an even more flexible, family-friendly policy for employees.

We need some common sense in the Bill. Many fathers would like to take a week off immediately after the birth of their children and another week off perhaps a month or two later. Many businesses, especially small businesses, might find it easier to allow an employee to take one week off at one time and another week sometime later. It is common sense that a mother who goes into labour may want her husband to be with her. The problem with the family leave referred to by the hon. Member for North Norfolk is that it is unpaid, and it is difficult for families on a tight budget to take unpaid time off work. However, I am happy to support all the amendments and happy that the Conservative party is proposing more flexible and more family-friendly policies than the Labour Government.

Mr Rob Marris (Wolverhampton South West, Labour)

I welcome you again to the Chair, Mr. Benton, and following the events of 7 June, I wish you a prosperous new year.

I want to speak to amendments Nos. 104, 105 and 101. It seems to me that hon. Members have misread the Bill. The last word of line 16 on page 2 is ''entitled''. The power provided in subsection (3) would entitle an employee—give him or her an absolute right—to two weeks leave, but it does not say that the leave must be an unbroken two weeks. The power entitles an employee to assert his or her right.

I am glad to witness the birth of new Conservatism following the comments of the hon. Member for Tatton. It is a great step forward. Flexibility is provided in subsection (5)(c), which amendment No. 101 would delete.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

The argument put forward by the hon. Member for Runnymede and Weybridge is a powerful one. Although the employer and employee may agree to an arrangement whereby leave may be taken in two different periods, it does not appear that the employer would be able to claim back the cost from the state of £100 a week for paternity leave, if the leave were taken in two separate weeks. There is a good argument for greater flexibility to provide for that.

Mr Rob Marris (Wolverhampton South West, Labour)

I am sure that we are all in favour of greater flexibility with regard to payment. However, on the subject of leave, the two subsections to which I have referred—subsection (3) and subsection (5)(c)—provide for the two ends of the spectrum.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The hon. Gentleman suggests that hon. Members, myself in particular, may have misread the Bill. It is extraordinarily easy to misread the Bill because it says little and is almost entirely dependent on regulations. However, the hon. Gentleman may find the explanatory notes helpful. The explanatory notes on clause 1 explicitly state:

''Regulations will provide for this''—

the two weeks' paternity leave—

''to be taken in a single block of either one week or two weeks at the choice of the father.''

The Government's intention is that the leave be taken in a single block. Although the hon. Gentleman's legal skills may lead him to interpret the Bill alternatively—after all, lawyers are paid for finding new interpretations of words on paper—there is no doubt of that intention.

Mr Rob Marris (Wolverhampton South West, Labour)

Lawyers are certainly not paid for seeking to amend explanatory notes. Members of Parliament might be paid for seeking to amend Bills under their consideration. It is the Bill that we are discussing, and the Bill makes it clear that there are two ends of the spectrum and so some flexibility. No doubt the Minister will respond to that in due course.

Similarly, proposed new clause 80A(4) of the Employment Rights Act 1996 is worded—I appreciate that the Minister has not said that he will take the point on board when making regulations—so that paternity leave could be taken before the birth. It gives a long-stop date by which paternity leave must be taken. The Bill does not say that paternity leave can start only after the child is born.

Mr Tony Lloyd (Manchester Central, Labour)

Alas, I do not agree with my hon. Friend the Member for Wolverhampton, South-West (Rob Marris). The explanatory notes are pretty specific, and I must assume that the Minister intends the Bill and any regulations to be interpreted in line with them. As the hon. Member for Runnymede and Weybridge said, the notes state that:

''Regulations will provide for this to be taken in a single block of either one week or two weeks at the choice of the father.''

That seems straightforward. They also state:

''The intention is to make paternity leave available to fathers following the birth of a child or the placement of a child for adoption''.

It seems extremely clear that the intention is either one or two weeks in a block, and that the leave must take place after the birth of the child.

I hope that my hon. Friend the Minister will reflect on the arguments that have been made about employers and employees needing certainty, which I understand. I see that it is necessary to have a basic entitlement that no one can gainsay, for cases in which the employer and employee are in bitter disagreement. Notwithstanding the need for a minimum standard, an argument has been made across the Committee that, when all parties want to break the leave up in some acceptable way, it makes sense to allow that. We all know of such circumstances, sometimes in our own families. Some of us have been through the situation more than once, with mothers of one parent or the other available at different times. Employers themselves may be happy with a broken form of entitlement that might suit employees better.

All that I will say to help my hon. Friend the Minister is that I understand that, in the protection of the public purse and public interest, greater difficulties are found in monitoring as flexibility is increased. I am not being pedantic about the way in which the system ought to operate. I urge him to consider carefully the sentiments expressed from both sides of the Committee. There is no hectoring; we are attempting to act in the spirit of the legislation, and to make it more effective and suitable for all parties. There is no partisan divide, but an attempt to reach a common-sense solution.

I concede that there may be technical difficulties in framing regulations that give that flexibility, but I do not want my hon. Friend to tie himself in knots—or, to mix metaphors, to paint himself into a corner.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Does the hon. Gentleman agree that if the Minister finds difficulties over the single-period argument, there is nothing to stop him removing from subsection (3) of proposed section 80A the prescriptive requirement for a single period? Even if those words were removed from the Bill, nothing would stop him making a subsequent regulation that included those words. Part of our objection, in relation to amendment No. 98, is that writing ''single period'' into the Bill would give the Minister no chance to change the regulations, even if it became apparent that that was the way to go.

Mr Tony Lloyd (Manchester Central, Labour)

The hon. Gentleman makes a strong point.

We have some time left to debate the Bill, and we shall have the Report stage before it goes to the other place, so my hon. Friend the Minister will have the opportunity to reflect on the matter. It is not helpful to insist that he move in a particular direction today. However, it would help if he took on board the overall argument that we should have a minimum standard but that it should allow for flexibility by agreement. If agreement cannot be reached, both parties can fall back on the basic minimum standard. That seems to be common sense. I may have missed an important trick; if so, I hope that my hon. Friend can explain it.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

We have had a good debate. I am grateful to the hon. Member for Runnymede and Weybridge for moving the amendments, because they have enabled us to cover the whole question. He asked why subsections (3) and (4) of new section 80A detail what will be included in regulations. However, the Government were also criticised for not including many aspects of the provision in the Bill. We cannot win.

The explanatory notes make it clear that we have followed the trend established under the Social Security Contributions and Benefits Act 1992 on what should be included in primary legislation and what should be included in secondary legislation. As I said earlier, the legislation also reflects the maternity leave provisions. If we had not listed in the Bill some of the matters that we believe should not be changed through secondary legislation, we would be accused of having introduced Henry VIII clauses. In that respect, we were trying to help by placing in the Bill those issues that we believe should be absolute entitlements.

The matters dealt with in new section 80A (5)(c) are to be included in regulations because we believe that we may need to change them. It is a possibility. We do not intend to change it, but the provisions for paternity leave are unprecedented—apart, that is, from unpaid parental leave. The concept of paternity leave is new, so we need to be sure that the provisions can be amended by secondary legislation.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am curious about who is advising the Minister. Is he trying to tell the Committee that the Government are not sure whether to provide for one week or two weeks, or that it might have to be one and a half weeks, and that they need to leave the door ajar for such a change, but they are absolutely certain that it must always be a ''single period'' and nothing could ever convince them that enshrining the single period in primary legislation was a mistake? That seems an odd position to adopt.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

It is a powerful argument, which was made also by my hon. Friend the Member for Manchester, Central.

The hon. Member for Tatton may say that he is pleased to be on the Opposition Benches because the Conservative party now has a more family-friendly and socially progressive policy than the Government—but I doubt it. He can say it, but I doubt if scrutiny of the record will show that to be the case. However, I could say that the Government are more business-friendly than the Conservative party, because what came out of our exhaustive consultations was the point raised by the hon. Member for North Norfolk, which is that employers can give whatever leave they wish. They can be as flexible as they like. The question is whether the employees will receive paternity pay.

Employers repeatedly told us that they did not want people continually to move in and out of statutory paternity pay. If employees did it every day—or at least in shorter periods than blocks of two weeks and one week—it would be a nightmare for employers and would be costly for the public purse. If those weeks were split into one-week periods, employers would

have the problem of covering separate weeks. Employers have no problem with extending maternity leave. The limit of paid and unpaid leave is a total of 40 weeks, and extending it to 52 weeks by increasing paid maternity leave from 18 to 26 weeks is fine if someone is already there to cover the position and if the employer has plenty of notice to make other provisions. The problem arises when, in the quite short period of 56 days, which I will come on to—my hon. Friend the Member for Alyn and Deeside (Mark Tami) is not here, but he made an important point—[Interruption.] He is here. He is obviously trying to get more information on the Government's intentions by moving closer to my briefing.

When the two weeks' leave are split within a period of 56 days, that causes problems with covering. There is also the problem for the Inland Revenue of how to administer a scheme of statutory paternity pay that employees move in and out of on a weekly basis.

Ms Helen Jones (Warrington North, Labour)

I have listened to arguments from Labour Members and Opposition Members with great interest. However, I urge the Minister to consider the position of the employee seeking paternity leave. If the regulations were made too flexible, we could end up moving away from the basic purpose of paternity leave. It is designed not only to support the mother but to allow the father to bond with the child. If pressure is put on workers to take a few days here and a few days there, as could be the case in some organisations, we will be moving away from the idea behind paternity leave.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

That is an important point, but powerful arguments have been made on both sides of the Committee about the way in which we are specifying matters in the Bill instead of retaining flexibility. That point is valid and I shall consider it carefully.

The arguments on the issue of whether the leave can be taken in advance of the birth do not persuade me. I was fortunate enough, in different capacities, to be involved in the Bill every step of the way, from the ministerial group that examined the issues in 1999 right up to now. We felt that there was an argument for allowing such leave to be taken. We even made a recommendation to that effect. The response came back that we would end up with a situation in which a father or partner decides on a specific day on which to take their leave, say 10 days prior to the birth, and they would specify, in a self-certification, that they were going to start their leave 10 days prior to the expected date of birth, but the birth might not happen on that date. Also, as the hon. Member for North Norfolk said, that is not paternity leave, it is something different, because the child has not yet been born. There is once again the issue of whether the partner is present when the child is born.

Because of those complications, and because it made matters much clearer, we decided that the period of the entitlement should begin on the date of birth. I would not say that the various groups that we

consulted were unanimous, but we eventually reached a fairly clear consensus. Many employees argued for flexibility, but employers said that people should not be able to move in and out of statutory paternity leave, that that would be a nightmare for them. Many employers said that employees should be entitled to their two weeks only at the time of the birth and that there should be no flexibility, no period of 56 days. However, we argued against that.

I think that we have got the balance just about right, but there are two points that I should like to consider. One is that raised by the hon. Member for Runnymede and Weybridge—that the Bill does not allow for flexibility on the matters dealt with by proposed new section 80A(3). The second is that made by my hon. Friend the Member for Alyn and Deeside that the Bill does not include any provision to modify the 56-day period by regulation. I propose to table an amendment, for the reasons that my hon. Friend mentioned. A mother might be in hospital for a long time because of complications due to a premature birth, and the father might find that they had run out of their 56 days at the time when the mother came home after a difficult and traumatic experience and at the very point when she needed support.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister has acknowledged that there is no need for subsections (3) and (4), which impose a restriction on what the regulations may do. In so doing, he has thoroughly undermined his argument that he had to have those subsections in the Bill to reassure people that the regulations would include those provisions. Would it not be best for him to accept amendment No. 98, which would remove subsections (3) and (4)? He could then address the issues under regulations and would have the flexibility to deal with the single-period issue, the start date and the duration of the period of 56 days in the light of practical experience and after taking appropriate consultations.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

The hon. Gentleman is right in saying that I have totally undermined my argument about those two provisions, but I am engaged in debate. I hesitate to accept any amendments, but I promise the Committee that I will come back with an amendment on the 56 days and give full consideration to the hon. Gentleman's point about putting the single period into regulations rather than the legislation.

I hope that after those comments, the hon. Gentleman will withdraw the amendment, unless there is another issue that I have missed. If he did so, it would be a satisfactory outcome to a good debate.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Good. The debate has been constructive and a tremendous vindication of the selection procedure, as it turns out that the amendments were appropriately grouped together. In dealing with the substance of amendments Nos. 104 and 105, we seem to have come to the conclusion that the fault lies with subsections (3) and (4). By removing or amending those subsections—I suggest that removing them would be the best solution—we can return to dealing with those matters in regulations. For all the defects of regulations, they do have the benefit

that, if something is not working correctly, it is relatively simple for the Government to undertake a consultation process and lay alternative regulations before the House without waiting for a slot in the parliamentary timetable.

In considering the Bill and the way in which the explanatory notes interact with it—notwithstanding the Minister's comments about my criticism of the clause for being prescriptive—we can see that it by and large depends on extensive regulation. The Government have signalled their intentions by use of the explanatory notes, which in many places make clear what the regulations will do.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

For the record, the explanatory notes simply set out what we recorded and published in response to the consultation, which is published in the Library research document. That information should come as no surprise, as it has been in the public domain for at least three months.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I accept that—as I say, the Government are making clear their intentions in other documents than the actual Bill. However, someone, somewhere, had the brilliant idea of suggesting that the single period and the 56 days beginning with the date of the child's birth should be included in the Bill, rather than saying in the explanatory notes that that is what the Government intended to do. I hate to use the term, but that looks like spin. For some reason, someone seems to have decided that they should make a statement of intention should be made. Primary legislation is not the place to make such a statement, and our constructive debate has highlighted precisely why that is not a good idea.

The single period may turn out to be the right option, as might 56 days and the start from the date of birth. However, the Minister has acknowledged that even our short and inexpert discussion can clearly raise real questions on the subject. Once the legislation has been enacted and regulations have been made, the experience in the real world may be that the provisions do not work in practice.

Ministers usually say that they cannot accept amendments because they are imperfectly drafted, but when the drafting consists of only

''leave out subsections (3) and (4)'',

it is conclusive that such drafting will not be faulty. If the Minister will not accept amendment No. 98, I hope that, at a later stage of consideration of the Bill, he will make a proposal that will remove those subsections. He will then deal at a stroke with the arguments raised under amendments Nos. 98, 104 and 105. In the circumstances, and as he has been so forthcoming, it would be churlish to press amendment No. 101, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 106, in page 2, line 22, leave out paragraph (a).

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to take amendment No. 107, in page 3, line 17, leave out paragraph (a).

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Amendment No. 106 has been slightly pre-empted by the Minister. It would leave out the power granted under proposed section 80A(5)(a) of the Employment Rights Act 1996, which is that regulations may

''specify things which are, or are not, to be taken as done for the purpose of caring for a child or supporting the child's mother''.

The Minister made it clear that he does not think that he is likely to want to do so, and I suspect that he is extremely wise not to attempt to define those issues. He has somewhat pulled the rug from under that amendment, and amendment No. 107, which similarly seeks to remove a provision under proposed section 80B.

However, the amendment raises what I shall call, as a shorthand, the double yellow line issue. The general principle that local authorities rightly adopt is not to put yellow lines where they cannot police them. It seems questionable to specify a purpose for taking leave, so that one of the criteria to be satisfied before one can take leave legitimately and properly is that one takes it for a specific purpose. A motive test seems to be being introduced into legislation. That strikes me as dangerous.

Will the Minister tell us whether there are other examples of similar motive tests in legislation on the subject? How do they work in practice? Do the Government intend to amend the legislation on sick pay, so that people receive it only if they take their medicine? That would be a similar approach, one under which people receive leave only if they are to do good things with it—if they take their medicine rather than do something that this rather moralising Government consider inappropriate. The Minister knows that the Government will never be able to enforce or police such a provision. He has wisely said that he will not attempt to define it, which begs the question whether it should be included in subsection (1) at all. Perhaps we should just acknowledge that as there is no way of effectively controlling whether the motive for taking leave is to care for the child or support the mother, it might be better to leave those words out of the Bill.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

The hon. Gentleman made a good fist of arguing for the amendment after I pulled the rug from under him. He asked whether double yellow lines were included in other Bills. I do not know, but this provision is included in the parental leave regulations that we have not yet used. Our concern is that the system might be abused. We do not know, but we feel that it would be politic to include such a provision in case we need it. We believe that we can deal with the matter in guidance rather than through regulations but, for the same reason that we argued to keep the word ''may'' rather than insert the word ''shall'' at the beginning of subsections (5)(a) to (c), it would be a mistake not to provide for the ability to address problems that may occur in future. Perhaps, in the midst of time, a similar provision existed in relation to

statutory sick pay. I do not know, but I am convinced of the need to include a failsafe mechanism to deal with any abuse that occurs. It is not about moralising; it is about being sensible and looking ahead.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I understand the Minister's concerns but he has not dealt with the general philosophical question of whether it is good practice to legislate for things that one knows one cannot police or enforce. I am sure that the Committee agrees that parental leave should be granted only where it is taken for the purpose of caring for the child or supporting the mother, but I am sure that the Committee would also agree that the Government have not the slightest chance of being able to enforce that. As the Minister seems to acknowledge that, it is odd to leave the provision in the Bill. However, as he has responded to my point in his own way, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 94, in page 2, line 29, at end insert—

'(d) make provision regarding the right to accrue holiday entitlement under the Working Time Regulations (1998) during periods of absence under subsection (1) above;

(e) make provision regarding treatment of bonus payments made during periods of absence under subsection (1) above'.

At the outset, I acknowledge that the idea for the amendment came from the Law Society, following something included in its Second Reading brief. However, it did not produce a subsequent detailed amendment, so the drafting of the amendment is not attributable to the Law Society and any imperfection in it cannot give rise to any mirth or hilarity at the thought of the Law Society imperfectly drafting an amendment.

I do not pretend to understand the detail of the amendment and I have been too indolent to examine the detail of the Working Time Regulations 1998, but the Law Society says:

''the Bill is a wasted opportunity to clarify the existing problems of definitions in maternity provisions, such as the right to accrue holiday entitlements under the Working Time Regulations during periods of statutory leave''.

If that is a problem, as the Law Society thinks, we may not be able to deal with it in existing maternity leave regulations. However, we could allow the Minister to deal with the problem by regulation in relation to the new types of leave that he is introducing. This is a probing amendment. I should like to know whether the Minister agrees with the Law Society that there is a lack of clarity about rights and whether he thinks that the Committee should deal with that in relation to paternity and adoption leave.

Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West & Hessle, Labour)

The amendment would allow us to make provision to prevent someone taking paternity leave from accruing holiday leave under the working time regulations. No problem with maternity leave legislation has been pointed out to us. An employee continues to accrue holiday rights under the

regulations while they are on maternity leave, and we propose exactly the same rights with paternity leave. Unless we make special provision, holiday entitlement will similarly accrue while someone is on paternity leave. We do not intend to introduce special provisions, because we intend for holiday rights to accrue as I described.

The hon. Gentleman seems to take the Law Society's view that there is a problem, but I am not aware of one. If he is suggesting that we should take a power that enables us to deprive those on paternity leave of the right that we are discussing, I profoundly disagree. Helpfully, I have been handed the Law Society brief, but it will probably confuse me rather than help me. It is not clear whether the hon. Gentleman is suggesting what I outlined, but that would not be right. Men on paternity leave would be left in a different position from that of women on maternity leave.

The second issue is the introduction of a power that enables us to provide for the treatment of bonuses that arise during a period of paternity leave. The amendment is simply unnecessary. We have the power to regulate on what should and should not be considered as terms and conditions of employment that subsist during paternity leave. It is also clear from new section 80C(5)(b) that those terms and conditions will not include those to do with remuneration. Bonuses normally constitute remuneration, so the payment of bonuses, which are ex gratia payments beyond those that the employee expects to receive under their contract, will remain a matter for the employer's discretion.

I counsel the hon. Gentleman against getting involved in this area. I have worked under and negotiated bonus schemes. Sometimes they pay people at work and when they are on maternity leave or paternity leave in those organisations that have agreements; sometimes they do not. There are different types of bonus scheme. We should not interfere in that matter with the regulations, which is why we specifically excluded it from the terms and conditions in the new section. The hon. Gentleman should withdraw the amendment. If there is a problem with maternity leave provisions, we are unaware of it.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am afraid that I have only the skimpy version of the Law Society brief and nothing as beefy as the one before the Minister. I raised the issue in the hope that Committee members or indeed the Minister might be aware of it. He clearly feels that, under the working time regulations, there is no lack of clarity about the right to accrue holiday entitlement on maternity leave. By extension, he feels that there will be no problem with the clarity of the right to accrue holiday entitlement on paternity or adoption leave. I raise the issue merely to probe whether the Minister is aware of the problem and whether he thinks that it could usefully be dealt with in this aspect of the Bill, but I have no great agenda for it. If the Minister is sure that there is no problem, I am happy to withdraw the

amendment. If the Law Society thinks differently, it will no doubt let the Minister know. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Mr. Pearson.]

Adjourned at Seven o'clock till Thursday 10 January at half-past Nine o'clock.