Clause 1 - Paternity leave
Employment Bill
9:30 am
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 125, in page 2, line 36, after 'pregnancy', insert
'(in which case reference in this section to the date of the child's birth shall mean the date of the stillbirth)'.
Amendment No. 125 seeks to clarify a simple issue. In referring to the birth of a child in computing the date on which paternity leave commences, the Bill also deals with stillbirth, and rightly provides that paternity leave is applicable in such cases, not in order that care be provided for the child, of course, but so that support can be given to the bereaved mother. However, it is not clear that the reference to the date of a child's birth embraces the date of a stillbirth. The amendment therefore seeks to clarify the matter by making it explicit that in the case of a stillbirth,
''the date of the child's birth shall mean the date of the stillbirth''.
In preparing the amendment, I looked at the Social Security Contributions and Benefits Act 1992, particularly the section on entitlement to maternity pay, thinking that that might provide some guidance. Under that Act, which the Bill amends in substantial part, statutory maternity pay relates to notification of an expected date of confinement. In responding to the amendment, it would be helpful if the Minister could clarify the wider issue. Although I have read part XII of the 1992 Act, I am still unsure whether maternity pay for the full maternity period is not provided in the case of a stillbirth. The Act appears to make notification of an expected date of confinement the
determining factor, but, so far as I can see, it does not refer to the outcome of that confinement.
It would appear that, where someone expects their confinement to commence on a certain date, notifies their employer accordingly, but unfortunately suffers a miscarriage after the date of that notification, nothing in the Bill will prevent them from being entitled to a full period of statutory maternity pay. That point is wider than the amendment, but relevant because the Bill—in this clause, and elsewhere—deals with things that are contingent upon a child's birth.
Perhaps the Minister will say that regulations have been made under section 164(9)(a) of the 1992 Act, which deals with special circumstances in which statutory maternity pay will not apply, and, if he does, perhaps that regime should be translated into the Bill. However, I will listen to the Minister. No point of principle is at issue; it is just a matter of clarifying the intention behind the Bill and seeking the Minister's reassurance that it does what it should.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
Good morning, Mr. Amess, and a happy new year to you.
I fully understand the concerns of the hon. Member for Runnymede and Weybridge (Mr. Hammond). There is no difference between us; we agree that the right to paternity leave should apply in cases of stillbirth. The Government are confident that the Bill will achieve that. I checked last night and this morning that that is so, but I shall do so again.
To clarify the hon. Gentleman's point, section 171 of part XII of the Social Security Contributions and Benefits Act 1992 states:
''In this Part of this Act—
'confinement' means—
(a) labour resulting in the issue of a living child, or
(b) labour after 28 weeks of pregnancy resulting in the issue of a child whether alive or dead''.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
That means that, in the absence of regulations prescribing circumstances under section 164(9)(a), a woman who went into labour and had a stillborn child will be entitled to 26 weeks of maternity pay. Although one would have every sympathy in such a case, the purpose of maternity pay is to allow people to take leave to care for a child and that does not apply to the case of a stillborn child. Would maternity pay apply for the full period in that circumstance?
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I am fairly confident that that is the case, but I shall take a raincheck. We are trying to make paternity leave and pay apply in the case of a stillborn child. Both sides of the House want to ensure that that happens and we will re-check the drafting to ensure that it meets that objective. Maternity pay is to allow for maternity leave, which protects the health and safety of the mother. Under the circumstances that have been described, leave would still be required for that.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
This is an important point because later in the Bill we will be extending the right to maternity leave to one whole year. I suggest that when a live child is not produced, a year's leave is grossly excessive to protect the health of the mother.
Obviously, that is a traumatic circumstance, but it is not the same as the birth of a child who needs to be cared for. If the same pay and leave are available to the mother of a stillborn child and the mother of a living child, the proposed extensions in the Bill need to be reviewed.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
We shall review that. My understanding is that pay is extended under the Bill, but not leave. However, I shall check to ensure that that is correct and put the record straight in correspondence or at a future sitting of the Committee.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I have not heard what I hoped would be a layman's guide to the complexity of the drafting, taking me through the steps by which the reference to the date of a child's birth could be construed to be the date of a child's stillbirth. However, someone has convinced the Minister that that is so. I have tried to construct that conclusion from the definition in the clause of newborn child, but it is a tortuous process. I was hoping that the Minister would throw more light on it. However, there is no difference of principle and the purpose of tabling the amendment was to draw the Minister's attention to the matter. I am sure that he will ensure that it applies properly in the circumstances we are discussing. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 108, in page 2, line 39, at end insert
'who is a person with whom a child is placed, or expected to be placed for adoption under the law of any part of the United Kingdom'.
Mr David Amess (Southend West, Conservative)
With this it will be convenient to take the following amendments: No. 109, in page 2, line 42, leave out paragraph (b).
No. 110, in page 3, line 1, leave out paragraph (c).
No. 111, in page 3, line 4, leave out from 'supporting' to end of line 5 and insert
'another person who is also a person with whom the child is placed or expected to be placed for adoption under the law of any part of the United Kingdom'.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
This substantive point is a little complicated, so I hope that the Committee will bear with me. The amendments together seek to change the circumstances in which someone would be entitled to paternity leave in the case of adoption. I do not want anyone to think that this is a complex argument about trying to exclude same sex adoption couples, and so on. That is a different debate, which we shall not have today.
I take it that the proper intention of the provision is to deal with any pair of adopters when one will be entitled to adoption leave and the other, regardless of gender, will be entitled to paternity leave. I do not want to discuss whether that is a bizarre use of language, but that is what the Government intend. However, the Bill states that a person could be entitled to paternity leave as a result of their relationship with a person who is an adopter. In other words, a person
who is not officially part of the adoptive couple could be entitled to paternity leave.
Some Committee members are experienced in matters concerning the adoption process and may have something to say about this, but the adoption process involves a significant number of checks to ensure that the person or people who will adopt and care for a child are appropriate and that the child's safety will be assured. The Bill seems to contemplate that a person who has not been vetted and approved as an adopter will be endorsed by the state by the granting of statutory paternity leave to care for the child because of a relationship with a person who has been so vetted and approved. We do not want to endorse people as carers of a newly adopted child if they are not officially the adopters. That is an important point.
In the vast majority of cases, one would expect the person taking adoption leave to be the woman and the person taking paternity leave to be her husband, or her partner if the couple are not married. The same situation will apply in relation to same sex couples. One person will be entitled to adoption leave and one person will be entitled to paternity leave. However, I should have thought that both should be joint adopters of the child. The provision could grant paternity rights at the moment of the placement to someone who is, as it were, not on the ticket. That alarms me.
Mrs Joan Humble (Blackpool North and Fleetwood, Labour)
The hon. Gentleman raises an interesting point. From my recollection of adoption legislation, all adults in the household where the child is to be placed for adoption are vetted, even if they are not formally the prospective adopters. For example, in a co-habiting couple in which the mother comes forward to adopt, her partner would be another adult who would be vetted but would not be the adoptive parent. I am trying to imagine how a circumstance could arise in which the hon. Gentleman's fears could be realised. Given that all the adults in a household are vetted, does he think it possible that someone outside the household could apply for parental leave because of their relationship with the child to be placed for adoption?
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
The hon. Lady makes a helpful intervention, in which she may have identified the germ of the solution to the problem. If we can be assured that regulations will ensure that only a person who has been through the vetting process will be entitled to paternity leave as a carer of the child, that would deal with the issue. Perhaps the Minister can explain how the provision will work in practice, then we can judge whether I have identified a real problem or whether the solution lies in the Bill.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
First, let us be clear that the effect of the amendments would be to deny the partner of an individual who adopts a child the right to paternity leave.
I shall explain our plans under clause 3, which we will discuss later today. Only one parent will be able to take adoption leave when a child is adopted.
Therefore, when a married couple adopts only one partner will be eligible for adoption leave, with the adoptive mother and father able to choose which of them takes adoption leave and which of them takes paternity leave. That reflects as closely as possible the situation of the parents of a newborn child. The hon. Gentleman is absolutely right about our intentions in that respect.
However, under existing law it is not possible for unmarried couples to adopt a child together. I am not talking about same sex couples, but couples in a longstanding relationship who have chosen not to marry. Therefore, when an unmarried couple wishes to adopt, one partner must adopt the child individually. That adopter will be entitled to adoption leave. It is important to recognise that such individuals may be in a long-term relationship, but have simply chosen for their own reasons not to marry.
The effect of the amendment would be to move away from that approach to paternity leave relating to newborn babies, which would exclude the other partner in unmarried couples from the right to paternity leave. That would mean a difference between childbirth and adoption, which both the Committee and the hon. Gentleman will agree would be wrong.
In most cases couples adopt children, but individuals can and are increasingly doing so. Indeed, we seek to encourage that by taking forward the proposals in the Adoption and Children Bill. It is right that we extend the new right to paternity leave to offer support to all families with newly placed children.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I regret that I am unfamiliar with the details of the Adoption and Children Bill, although I was a shadow health spokesman. Does that Bill provide for joint adoption by unmarried people? If so, does the Minister envisage that the regulations under new section 80B(1) would be different if it reaches the statute book?
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I am not conversant with the details of that Bill, and many other Bills, but on Second Reading the Secretary of State said that he welcomed a debate on the issue. He also said that while the Government consider that the proposals being taken forward in the Bill are broadly right, they will consider carefully the evidence heard at the Special Standing Committee, and that while the Government have made no changes to the current draft, by sending the Bill to a Special Standing Committee they are providing an opportunity to hear a wide range of evidence, and to debate that and other issues. Whether the Bill reaches the statute book, at the moment individuals can adopt children. As my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) rightly said, the whole of the household is vetted.
At this stage, all adoption groups entirely support these proposals, as does the Department of Health, and the proposals have been overwhelmingly endorsed by the experts. We must have safeguards to ensure that leave is available only to parents when a child is placed for adoption through the approved process, which includes going through an approved adoption agency.
All the vetting procedures to which my hon. Friend referred are written into new section 80B(1), which ties the right to paternity leave into the relationship with the child placed for adoption and the child's adoptive parent. New section 80B, together with the new right to adoption leave, is an important step forward. It is only right that in moving forward we include all parents, including unmarried couples, who offer a loving home to such children. I hope that on the basis of those assurances the hon. Gentleman can withdraw the amendment.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
That was genuinely helpful, and betrays my woeful ignorance of the current state of adoption law. The Minister's comments explain the need for the provision and the helpful remarks by the hon. Member for Blackpool, North and Fleetwood provided some reassurance. It would be a further reassurance if the regulations, when they are published under new section 80B(1)(c), specified the relationship with the person in such a way that it required that person to be identified as a member of the household when the pre-placement vetting procedure was undertaken, which would ensure that that person was not someone who happened along after the placement had been agreed. That is something that could be dealt with in regulation. It is a small loophole, but it probably needs to be closed to ensure the fullest possible protection for children.
I have heard the Minister's comment that all consultees appear to favour this wording, but it is still important to probe the impact of the words in the Bill. I regret that after three years as a shadow health spokesman the fact that the Department of Health endorses the provision does not inspire me with a single ounce of confidence. The fact that some outside groups have looked at it gives me rather more. Having listened to the Minister's reassurances and the information imparted by the hon. Member for Blackpool, North and Fleetwood, I beg leave to withdraw the amendment.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I should like to correct an error that I made at the previous meeting. The hon. Gentleman mentioned the proposed regulations under new section 80B(1)(b), which govern the relationship with a child placed for adoption. In Tuesday's sitting I made an error regarding the regulations under 80A(1)(b), on the relationship with a newborn or unexpected child. I am afraid I got my Calvin Kleins in a twist. When asked by the hon. Gentleman whether the provision applied to the biological father, I said yes. The hon. Gentleman was surprised, which is unsurprising because I got it wrong. In the majority of cases it will be the biological father. We intend that the person taking paternity leave should be responsible as a parent of the child. It will usually be the biological father but in circumstances that we will all understand, that may not always be the case. I needed to put the record straight on that issue.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I am grateful to the Minister. When he made that comment I accused him of being rather more old Labour and rather less new Labour than I had suspected. He has reasserted his status. The unwelcome information about his underwear might further underline it.
Mr David Amess (Southend West, Conservative)
That exchange was most irregular, but we shall gloss over that.
Amendment, by leave, withdrawn.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 113, in page 3, line 34, leave out subsection (8).
Mr David Amess (Southend West, Conservative)
With this we may discuss the following amendments: No. 140, in clause 2, page 12, leave out lines 1 to 6.
No. 170, in clause 4, page 20, leave out lines 30 to 34.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
This group of amendments deals with the same issue in different parts of the Bill. In new section 80(B), subsection (8) permits the Secretary of State to make regulations to apply this section in perhaps modified ways to overseas adoptions not made under United Kingdom law, where there is not a ''placement''. The Bill uses this term extensively but it does not apply to overseas adoptions.
In dealing with the previous amendment the Minister emphasised the importance he attaches to the approval processes being properly undertaken prior to the placement. In our earlier discussions on adoption leave and adoption pay he made reference to the public policy purpose of the provisions, which is to encourage and support adoptive families in order to reduce the number of children being cared for by the statutory authorities or placed in foster homes and to increase the number of children permanently placed with adoptive parents.
I have no doubt that we all agree on that issue, but it is not clear that extending these provisions to parents who go abroad, adopt children and bring them back will necessarily contribute to achieving that public policy objective. That is encouraging the adoption and importation of children rather than the adoption of children in local authority care or foster accommodation in the United Kingdom. The amendment proposes to delete the provisions allowing the Secretary of State by regulation to modify the way in which the enactment works in relation to overseas adoption.
Because of the way in which the Bill is worded, if the Secretary of State did not have the power to modify its provisions in relation to overseas adoption, my understanding is that it would not apply to overseas adoptions because there is no placement as such which would give rise to the entitlement. I should therefore like to hear the Minister's justification for including overseas adoptions in the ambit of his proposed legislation on paternity leave for adoption, and on adoption leave and adoption pay. Although there might be some rationale for that, it would certainly undermine the previously stated public policy of stimulating placement of children who are in local authority care. The Minister himself referred to the economics of that issue at a previous sitting, saying that keeping children in local authority care involved great financial expense while making financial provision to encourage adopters was economic common sense. I agree, but it is clear that that does not apply to overseas adoptions.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
There is something of an issue of principle here. The amendments would remove the right to paternity leave for adoption for those who adopt from overseas, and I hope that the Committee agrees that that would be wrong. It is true that I have argued the economic case, but that is not the be all and end all. We believe in the important principle that all children, whether adopted from overseas or in the United Kingdom, deserve the chance to spend time with, and build relationships with, their new families. Just like children in the UK who come into care, children from overseas have often led fractured and disrupted lives, and a new family and home provide an opportunity to enjoy better life chances.
Mrs Joan Humble (Blackpool North and Fleetwood, Labour)
Does my hon. Friend acknowledge that the only way in which people in this country from certain minority ethnic groups can adopt a child from a background similar to their own is to go to another country and obtain a child through adoption processes in that country? At the same time, however, they are vetted for suitability in this country. If we deny them paternity leave that would enable them to look after the child on returning to this country, we will deny them the right of all parents to bond with and spend time with their child. The opportunity to bond is necessary to developing a relationship that will help the child grow to maturity.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
My hon. Friend makes a very important point, of which I was not aware, and it is helpful to have in Committee someone who is well versed in these issues. In such circumstances, adopting from overseas is the only option.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I am aware that the Minister does not have departmental responsibility for this matter, but the hon. Member for Blackpool, North and Fleetwood has raised an interesting and perhaps controversial point. The Minister will be aware that a history of controversy surrounds the issue of adoption and race. The hon. Lady appears to suggest that the Government should encourage and facilitate people in seeking to adopt only from a particular ethnic group. Is it not Government policy, however, to encourage cross-ethnic adoption where it is appropriate for the child?
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
Yes, it is, but my hon. Friend was simply saying something else. I shall allow her to clarify matters.
Mrs Joan Humble (Blackpool North and Fleetwood, Labour)
I do not want the Committee to misinterpret my comments. In the several years that I spent as a member of Lancashire county council adoption panel—I should perhaps declare that interest—certain people sought to adopt a child from another country because they were conscious of their identity as members of certain minority ethnic groups. The Government have never laid down absolute rules, and there have been many successful cross-racial and cross-religious adoptions. The important point is the qualities that the adoptive parents bring to the process and the love and affection that they give to the child. I hope that the Minister agrees that our responsibility is to encourage the nurturing and fostering of that relationship to the benefit of the child. We should do
that whether the child comes to this country from abroad or was born here.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
My hon. Friend touches on the central theme of my argument. We should allow paternity leave for adoptive parents whether they adopt from within the UK or abroad. Very few adoptions—around 300—take place each year in which the children involved are not British nationals. That is not the issue, but it is important to put the point on the record. It is also important to make it clear that we recognise that the process of adoption in other countries is not always as tightly controlled as it is in this country. However, although some parents act irresponsibly, most follow the approved process.
I assure members of the Committee that safeguards will be in place to ensure that paternity and adoption leave and pay will be available only to parents who have followed the approved process, including going through an approved UK adoption agency. Arrangements for intercountry adoptions can vary considerably from those in the UK and from country to country. In particular, the concept of a placement for adoption that is used in the Bill may not apply to overseas adoptions. Therefore, for practical reasons, there will be slight differences between some elements of the provisions for domestic and overseas adoptions.
The Adoption and Children Bill clearly marks the Government's commitment to modernise the entire legal framework for domestic and intercountry adoptions. We are determined to improve the performance of the adoption service and to promote greater use of adoption. With that in mind, the Department of Trade and Industry will continue to work closely with the Department of Health and in consultation with key stakeholders, who have all approved the proposals, to ensure that we get the regulations concerning paternity pay and adoption pay in relation to intercountry adoptions absolutely right.
I hope that the hon. Gentleman will withdraw the amendment. We must ensure that there is not one set of rules for adoptive parents adopting children domestically and a different one for those who adopt from overseas.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
I simply want to stress that the introduction of paternity leave is very much in the interests of children, and it should apply equally to children adopted abroad and to children adopted in this country. That will help parents, especially fathers, to be good parents. The amendment is unhelpful and I would not wish to support it.
Mr Rob Marris (Wolverhampton South West, Labour)
Perhaps I can elucidate the question of overseas adoption for the hon. Member for Runnymede and Weybridge. I have a constituent whose sister lives in the Indian sub-continent. She is dying of AIDS, from which her late husband died, and her life expectancy is limited. Her brother asked me about the possibility of adopting their two young children, because there are no other relatives in that part of the world under the age of 60 who could do so. He wants to adopt, not because he would adopt children only of a certain
ethnic background, but because they are his own flesh and blood.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I suspect that in that case the Bill would not apply. The Government have been careful to tell us that it covers arm's-length adoptions—that is, cases involving a genuine new placement and the need for time for bedding in—and not adoptions within a family or a foster relationship. Perhaps someone will correct me if I am wrong.
Mr Rob Marris (Wolverhampton South West, Labour)
I stand to be corrected, but I had not understood that to be the situation.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I do not know. The point raised by my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) shows that we need to be careful to ensure that we get it right when we draft regulations. I am not sure whether that would be classed as an adoption. The Kilshaws, who gained much publicity, would not qualify because they brought into this country children who had been adopted abroad. The provisions apply differently to domestic adoptions and to placements that happen abroad. I am not sure whether family ties preclude the normal adoption procedure.
My hon. Friend the Member for Wolverhampton, South-West raised a good point. We should not accept the amendment on the basis that parents who adopt domestically will have the opportunity of help from the social services in this country and may not have that if they choose to adopt from overseas. My hon. Friend's contribution showed that that would be a difficult principle, and I do not think that the hon. Member for Runnymede and Weybridge wants to go down that road. I hope that he will withdraw the amendments.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I am delighted to have the opportunity to clarify my purpose. The Minister referred to having one rule for adopters of children domestically and another for those adopting overseas. However, I am principally concerned to establish one rule for Ministers. When they create an argument in support of their actions, they should create one that applies to everything that they are doing, and not to selective bits. It is no good for the Minister to tell us one day that the good thing about making payments and giving financial and other support to those who are adopting is that it makes economic sense because the cost of keeping children in care is high, and the next, after someone has discovered a bit of the Bill that does not fit, to say that that is not the most important argument after all. I want the Minister to acknowledge that what he told the Committee the other day does not embrace what is provided for in this new subsection. I am happy to acknowledge other good reasons for including the new subsection.
Our exchanges have been useful. It was never my intention that the Minister would accept the amendments, but I wanted to hear about the safeguards that will be in place and an acknowledgement that different motives and agendas existed besides those that he recently outlined to the Committee. I am pleased to have heard the Minister's reassurance that safeguards will be in place and that, although there will be no placement in an overseas
adoption, adoption leave and pay will apply to cases only where there has been an engagement with a recognised UK agency and where the adoption process has been vetted in the UK. That addresses most of the concerns of Conservative Members and deals with much of the scope for abuse of the system.
I may have inadvertently misled the hon. Member for Wolverhampton, South-West with my intervention. The explanatory notes state:
''Regulation will provide that adoption leave will apply only where the child is newly placed with an adoptive parent—it will not apply to step-family adoptions or adoptions by a child's existing foster carers.''
Regulations will detail requirements under the arm's-length principle. I do not suppose that that explanatory note is exhaustive so it will not be clear whether the adoption of a niece or nephew would give rise to an entitlement to adoption leave, paternity leave related to adoption or associated payments.
Perhaps it will be more convenient to ask the Minister about that later when we discuss adoption. Other hon. Members have dealt with ethnic minorities, adoption and overseas adoption in ethnic minority communities, so that question is appropriate. The extended family was once common in our society, but now exists more in some parts of the community than in others. It may be necessary to think differently in different cases about whether the adoption of a niece or nephew should be regarded as an arm's-length adoption and about how it should be treated. I am speaking off the top of my head, but it might be more appropriate to have a subjective rather than an objective test of how close a previous relationship has been to ascertain whether it is an arm's-length adoption. In that case, the adoption of a niece and nephew who live thousands of miles away and may not have had contact would be seen as a genuine arm's-length adoption, whereas the adoption of a niece and nephew living as part of the same extended family group should not be seen as an arm's-length adoption giving rights to leave and pay. I leave that thought with the Minister; I shall not ask him to reply now. When we come to the adoption section, we might usefully debate that point.
Having probed the Minister and apparently irritated him, although that was not my intention, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 115, in page 3, line 40, after '80A' insert 'and 80B'.
Mr David Amess (Southend West, Conservative)
With this we may discuss the following amendments: No. 114, in page 4, line 11, leave out 'maternity leave' and insert 'leave under section 80B'.
No. 116: in page 4, line 14, leave out subsection (3).
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
The amendment seeks to change the language of new section 80C. There is both a stylistic and a substantive purpose in this. The section reads in line 40:
''Regulations under section 80A shall provide''.
It goes on to list a series of ensuing provisions. Subsection (3) reads:
''Subsection (1) shall apply to regulations under section 80B as it applies to regulations under section 80A''.
I am not sure what that subsection adds to the Bill's meaning that would not be more economically provided by inserting the reference to section 80B in line 40 so that it read:
''Regulations under section 80A and section 80B shall provide—„''.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
I have a drafting point. Does the hon. Gentleman accept that if one were to proceed with his proposed amendment, paragraphs (a) and (b) of new subsection 80C(1) would also have to be amended because they refer to ''that section''?
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
If the hon. Gentleman had tabled vast numbers of amendments, I would forgive him for chastising me for not staying up all night to work out all the consequentials. Since these are probing amendments, I have decided to adopt an economical approach and table a substantive amendment to probe the Minister and leave it as unspoken that a series of consequentials would be required. However, the hon. Gentleman is quite right.
I would like the Minister to clarify a specific point. Section 80C(2) does not refer to leave under new section 80B. It contemplates a situation where absence on leave
''includes, where appropriate, a reference to a continuous period of absence attributable''
to different reasons: maternity leave, adoption leave, parental leave and paternity leave in the case of birth. It does not appear to contemplate a period of leave being calculated as continuous in conjunction with a period of leave under section 80B. If a parent were to adopt a child, then another child, that parent would be able to claim paternity leave in respect of two adoptions—I am getting myself into a twist, rather as in the Minister's famous experience with his underwear. Subsection (4) clearly provides for leave under new section 80A to be recognised as one class of leave that may be considered in calculating a period of continuous leave. Subsection (2) does not reflect that because it does not provide that leave under new section 80B would be considered in calculating a continuous period of absence, and it is not obvious to me why that is the case.
I also have a problem with the Bill's abuse of the English language. We are invited to assume in subsection (2)(a) that someone claiming a period of paternity leave could, for the purposes of the Bill, have his continuous period of absence calculated by taking that period of paternity leave as continuous with a period of maternity leave. I understand how it is logically possible within the construction of the Bill for a person to have X weeks of maternity leave immediately followed by X weeks of paternity leave. That is, however, a horrible abuse of the English language. When our language, which is probably the most flexible ever invented, cannot easily accommodate the Government's intention, that ought to sound an alarm bell in their mind and
suggest that there is something wrong with trying to persuade us that someone who is entitled to maternity leave in one week might equally be entitled to paternity leave in the following weeks. That use of language sticks in the gullet.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
The amendments are minor drafting changes that we consider to be unnecessary. Amendments Nos. 115 and 116 propose altering the drafting to incorporate subsection (3) of new section 80C within subsection (1). That would mean stating in subsection (1) that regulations under new sections 80A and 80B concerning paternity leave for newborn children and for children newly placed for adoption respectively will address the contractual terms which apply to an employee on paternity leave and to their right to return from paternity leave.
We intend that rights for paternity leave will reflect the rights that apply to women while on, and returning from, ordinary maternity leave. As paternity leave is for a maximum of two weeks, we intend that an employee will entitled to all contractual benefits except wages or salary while taking one or two week's paternity leave. We also intend that an employee will have the right to return to the same job following an absence of one or two week's paternity leave. It is important for me to set that out for the record because the hon. Gentleman's points do not challenge that principle.
Amendments Nos. 115 and 116 would alter the way in which the Bill is drafted. The hon. Gentleman made it clear that subsection (3) contains the reference that he seeks to write into new section 80C(1). Although it makes no difference where that reference is placed, the drafting is robust and the parliamentary draftsmen believe its present position to be the best way to cover that point.
Amendment No. 114 concerns subsection (2), the purpose of which I should like briefly to explain. The introduction of the right to paternity leave will create new situations that simply do not occur at the moment. For example, the new right to paternity leave may be taken as part of a consecutive period together with parental leave. Parental leave may be deferred by the employer if it is not convenient for the company and that is always so except at the time of the birth. When fathers take unpaid parental leave—there is not a huge take-up—they take it at the time of the birth. Those two periods of leave could run together and subsection (2) with subsection (4) allows us to address the implications of new situations.
Amendment No. 114 partly covers the specific situation when a parent takes paternity leave relating to a new-born child and paternity leave relating to a child placed for adoption. That was the example given and I shall come to the English language point later. The amendment is unnecessary because situations in which both sorts of leave are taken as part of the same period is covered in subsection (4). It would be an unnecessary duplication to include a similar provision in subsection (2). The hon. Gentleman also proposed the removal of provisions covering periods of paternity leave relating to a newborn child and maternity leave. I admit that at first sight that seems odd. A mother cannot also be the father of the same child, but
subsection (2) allows us to address all possible new situations. Eligibility for paternity leave will be set out in regulations specifying the relationship with the child and its mother or adoptive parent. We shall consult on the regulations before finalising them, but the fundamental criterion will be that the person taking paternity leave should have responsibility as a parent of the child. We want to ensure that the right is available to the mother's partner provided that the partner is a serious one and will play an effective parenting role. A definition along those lines usually means that the child's biological father will qualify and that is what we all expect, but we would not expect the regulations to rule out other partners, provided that they satisfy the fundamental test that they are serious and not casual partners and will be playing a real parental role.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I am interested in the Minister's last words, because I thought that the Committee had concluded at our previous sitting that it would be well nigh impossible to police any such test. The Minister's aspiration is sensible and logical, but in practice he will be unable to test it and enforce it.
The Minister left me behind with his explanation of why there is no need for a reference to leave under new section 80B(2). There is reference to adoption leave but not to paternity leave in the case of adoption. It is not clear to me why, when calculating a continuous period of absence partly attributable to leave under new section 80A, it is necessary to refer to adoption leave but superfluous to refer to paternity leave in the case of adoption. It seems to me that both should be covered and the Minister has not yet convinced me that they are. Perhaps he would go over the point again, because I did not understand it.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
Subsection (4) states:
''In the application of subsection (1)(c) to regulations under section 80B''—
that is the important point
''the reference to absence on leave under that section includes . . . ''
The hon. Gentleman raised an important point, but his amendment would create duplication because the matter is covered in subsection (4), so it is not necessary. We are discussing situations when both sorts of leave are taken as part of the same period, which is the point that we are seeking to cover. The clause seeks to protect the rights of employees who take that leave to have the same terms and conditions when they return from that leave. We are discussing the protection of those rights, as in the case of maternity leave. That is covered in subsection (4) and it is unnecessary to have duplication in subsection (2).
On the point about Fowler's ''Modern English Usage'', I should like the matter to be a little clearer but it is difficult when we are discussing women taking paternity leave. If the principle is accepted that we want adoptive parents to be in the same position as parents of children who are born to them, one should be able to take adoption leave, which is the equivalent of maternity leave, and one should be able to take paternity leave. The provision must be drafted in that way to cover same-sex couples in particular. We have
left it to the adopting couple to decide who takes which. The situation is different and there are no health and safety implications when natural childbirth is not involved.
If the principle is accepted, we must have some licence because it is difficult when drafting regulations to make those points other than in a long series of paragraphs and sub-paragraphs. I accept the hon. Gentleman's point about clarity of language, but I hope that he accepts that we have done our best with the complicated situations that could arise. I ask the hon. Gentleman to withdraw the amendment.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I am grateful to the Minister for trying to explain matters. I am still not sure that I have understood the logic of why subsections (2) and (4) do not mirror each other and I shall think about that.
An interesting point about the use of language is that complex situations in which we seek to satisfy conditions becomes almost more mathematical or logical than linguistic, and language serves us poorly. I am reminded of a short period many years ago when I was tortured by having to study formal logic and to present linguistic arguments in the form of formulas. It might be better to try to explain some of the provisions by reference to formulas instead of torturing the English language.
I am grateful to the Minister for trying to explain. I apologise if I am at fault in not understanding, but I shall try to understand what he has said and satisfy myself that symmetry between subsections (2) and (4) is not necessary. If I cannot do that, the Minister will hear from me again on Report.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 117, in page 4, line 26, leave out paragraph (a).
I hope that this is a simple probing amendment. Its purpose is to allow the Minister to explain the meaning of subsection (5)(a), because it is not clear to me. I hope that we shall discover that, again, it is torture of the English language and nothing more. It would be more sinister, however, if the Minister said that non-contractual terms of employment could be enforced when leave is taken. That would be disconcerting. It seems to me that paragraph (a) could imply that something that someone had enjoyed by virtue of their employment but which was not a contractual term of their employment could become a contractual term.
I shall give a flippant example. Someone who worked in Tesco in the High street might have been allowed routinely to park in a valuable reserved parking space while working. Would such a non-contractual but customary benefit of employment continue to be available during the absence? I can think of many perks that are non-contractual but which people, especially in smaller businesses, routinely enjoy when at work. I hope to establish that that is not what the Minister means. If that is
what he means, non-enforceable benefits that people enjoy when working would become enforceable when they were not working. That would be odd and unsatisfactory.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
I entirely agree. The Bill is using extremely tortuous language to refer to terms and conditions of employment, which most people regard as being the contractual terms of employment, as meaning a broader set of provisions than those contained in the contract of employment.
Will the Minister clarify two points? First, is this formulation the same as that used in existing maternity and parental leave legislation? Secondly, what sort of employment provisions are envisaged within the broader definition of the concept of terms and conditions of employment?
Mr Mark Prisk (Hertford and Stortford, Conservative)
I support the amendment. Paragraph (a) is illogical. If it is intended to provide an absent parent with the benefits of the terms and conditions of their employment, where do those terms and conditions exist except in the contract of employment? The deathless term ''matters connected'' is so vague and grey that it is likely to cause more problems than the Minister intends.
My hon. Friend the Member for Runnymede and Weybridge mentioned car spaces. In any place of work, there are informal arrangements between employer and employee. The danger of widening the scope of the nature of arrangements for paternity leave is that it could well deter such informal relationships. Employers will worry that a whole range of ad hoc arrangements will suddenly be drawn into the statutory arena.
Will the Minister define exactly what ''matters connected'' means? If he cannot, does not that underline the need to withdraw the paragraph?
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
We are not always able to make such definitions, but we need to include the paragraph because it exactly mirrors the clause on maternity leave. As always, we have sought to reflect existing legislation. As far as we are aware, employers are generally happy about it.
I shall deal with the specific examples that hon. Members gave. The point of the provisions is that employees can come back to work and not lose non-contractual rights and privileges. In terms of car parking, they might not have a specific space, but be entitled to use the company car park. The hon. Member for Runnymede and Weybridge asked whether they could use it during the period of leave.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
The Minister mentioned protecting the employee on returning to work, but subsection (1)(a) refers specifically to his entitlements during the period of leave.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I was coming to that. We are broadly looking to do both.
Whether a man on paternity leave would still have access to the car park depends on the rules of the company. If employees have the right to use it when on leave from work on holiday, as is generally the case—[Interruption.] The hon. Member for Runnymede and Weybridge says from a sedentary position that it is not
generally the case, but it is. In all my experience, a company car park can be used not only when going to work, but in other circumstances. If that is not a non-contractual term of employment, the hon. Gentleman has a point. However, if it is such a term, a man taking paternity leave to help and support the mother may use the car park—for example, to get into town to do the shopping.
Mr Mark Prisk (Hertford and Stortford, Conservative)
If the employer takes on another member of staff to cover the period of the employee's absence, who will park where?
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
The same problem would arise if he was able to use the parking space when away on holiday. We are talking about two weeks of paternity leave.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I accept that we are broadening the issue. However, in saying that we are just talking about two weeks of paternity leave, the Minister is implying, ''What the hell are you talking about? It's only two weeks.'' Yet, as he told us, the same provision applies to maternity leave, so we could be talking about a substantial period.
My hon. Friend the Member for Hertford and Stortford (Mr. Prisk) made a significant point. It may not matter at a factory in Hull where there is ample car parking space, but in central London the right to use a car parking space in order to perform one's functions at work is extremely valuable. If an employer had to find a temporary worker to fill a post during a lengthy period of maternity leave, it could create serious difficulties if the person on leave persistently sought to use the space that they had customarily used. It is not a trivial point.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
The point may not be trivial, but it is totally unnecessary. The maternity leave provisions that the clause mirrors have been in place for some time, and they have not led to the end of civilisation as we know it. The hon. Gentleman is being unfair to employers. If an employer has a non-contractual term of employment that enables employees to use the car park at any time—on leave, on holiday, or whatever—why would he say, ''We will withdraw that entitlement from you because you are not on holiday, but on paternity leave, and restore it in two weeks' time''? It is widespread practice to have non-contractual terms of employment that allow for membership of a sports club or gym or use of a subsidised canteen whether one is on duty or off duty.
It would look strange if the provisions applied to maternity leave, but not to paternity leave. The hon. Member for Runnymede and Weybridge says that he is making a substantive point, but it did not register on our Richter scale at all when we consulted employers. They said, ''The best thing you could do for us is to make paternity leave absolutely consistent with maternity leave.'' We have tried to tidy up the provisions in order to do that, not least by harmonising the notice periods.
I urge the hon. Gentleman to withdraw the amendment, because it is unnecessary.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
It makes sense that the provisions should mirror those for maternity leave. In any
employment, myriad provisions have no contractual force, but are discretionary entitlements. The Bill provides that for the leave period of two weeks, everything relating to the employment remains in place—as it was before, so shall it be afterwards—subject to the point about remuneration. That has worked with maternity leave. When a woman goes off on maternity leave, it does not lead to chaos and a great battle over her parking space. In most cases, a person away on paternity leave will not want to drive into the factory car park; he will be shopping, looking after the baby, and so on.
Mr Mark Prisk (Hertford and Stortford, Conservative)
I am unclear about this. At the beginning of the debate, the hon. Gentleman was strongly in favour of the point that we were making; now he seems to have changed his mind.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
There seems to be a propensity to try to score points all the time. I thought that the purpose of the Committee was to shed some light on the Bill, which is what I am trying to do. I raised two points. I asked for clarification on whether the Bill reflects existing provisions on maternity leave, and the Minister has confirmed that that is so. As I said, the language is tortuous. It is nonsense for terms and conditions of employment, which are normally taken to mean contractual terms, to mean something broader. Nevertheless, the Minister has confirmed that the language reflects existing legislation, and we should be pragmatic and apply the principle that, if it ain't broke, don't fix it.
Maternity leave provisions work. When a woman takes maternity leave, she continues to enjoy the discretionary entitlements that go with the job. The legal point is interesting, and the Minister might want to comment on it. If entitlements remain discretionary during maternity leave, can the employer withdraw them?
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
As the hon. Gentleman is lawyer, perhaps he can explain to those of us who are not the concept of a discretionary entitlement.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
My language was perhaps insufficiently precise—discretionary benefits might be a better description. In most cases, employees benefit from certain contractual entitlements and other discretionary benefits, which employers can offer or withdraw at their discretion.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
The clause makes the point that discretionary benefits will remain in place during maternity leave or paternity leave. My point is that the provision seems to work reasonably effectively for maternity leave. The legislation is about trying to provide benefits for fathers for a very short period of paternity leave that are comparable to those enjoyed by mothers during maternity leave. It seems sensible to work on that basis.
Mr Mark Prisk (Hertford and Stortford, Conservative)
The Minister has failed clearly to define ''matters connected'', and as the hon. Member for North Norfolk (Norman Lamb) said, the language is tortuous and unclear. If our aim is to support the benefits arising from the terms and conditions of
employment, it would make sense to focus on that. The provision may be consistent with previous measures relating to statutory maternity leave, but two wrongs do not make a right. The provision is not automatically right simply because a similar mistake was made in the past.
Ms Helen Jones (Warrington North, Labour)
I am listening carefully to the hon. Gentleman. Is he saying that the inclusion of similar provisions in maternity leave legislation is wrong, and that his party is committed to withdrawing them?
Mr Mark Prisk (Hertford and Stortford, Conservative)
No one has satisfactorily defined what ''matters connected'' actually means, and that is what I am trying to do.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
The point made by the hon. Member for Warrington, North (Helen Jones) is absolutely right. The hon. Gentleman is arguing that the provision is wrong not only for paternity leave but for maternity leave. Is he arguing, therefore, that we should withdraw from women the right to maintain discretionary benefits during maternity leave? If so, he should make that clear.
Mr Mark Prisk (Hertford and Stortford, Conservative)
We are trying to ensure clarity in the law, so that there is the minimum opportunity for disputes between employer and employee. My central concern is the great danger that use of a term such as ''matters connected'' will merely increase the propensity for dispute.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
We should be concerned about the danger, with which the next amendment also deals, of creating a world in which people on leave, for whatever reason, are in a better position that those who turn up for work. As I understand it, we are talking about discretionary benefits that the employer is free to withdraw, at his discretion, from one day to the next—except, it seems, when a person is on leave. I am not sure that we want to create a world in which those on leave are in a more secure position than those who are not.
Mr Mark Prisk (Hertford and Stortford, Conservative)
I agree. Where, other than in the contract, do terms and conditions of employment exist? It is that lack of clarity that poses the danger.
Mrs Betty Williams (Conwy, Labour)
I am sure that the hon. Member for Hertford and Stortford is grateful to the hon. Member for Runnymede and Weybridge for trying to rescue him. The hon. Member for Hertford and Stortford said that two wrongs do not make a right, and my hon. Friend the Member for Warrington, North is waiting for a reply to her question. Do you want to dispose of the existing provision for maternity leave? What exactly are you saying?
Mrs Betty Williams (Conwy, Labour)
I am sorry. Will the hon. Gentleman clarify what he means? He said that two wrongs do not make a right, and the hon. Member for Runnymede and Weybridge tried to rescue him from that big mistake.
Mr Mark Prisk (Hertford and Stortford, Conservative)
I am grateful, Mr. Amess, for your generosity in allowing me to continue. It is important
to remember that the provision to which the hon. Lady refers dates back to 1992 and was introduced by a Conservative Government. The amendment seeks simply to ensure clarity in the Bill.
Miss Judy Mallaber (Amber Valley, Labour)
I, too, in the light of his contribution, would like to know whether the hon. Gentleman has made a U-turn on the previous Conservative Government's policy, as implemented in the original legislation. Does he want to remove the provision from maternity leave legislation?
Mr Mark Prisk (Hertford and Stortford, Conservative)
Such clarity as is lacking relates to the phrase ''matters connected'', and that is what I hope we can deal with.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
This unusually inclusive debate has had more participants than any other in our proceedings, although it has probably generated more heat than light.
I was interested in the observation of the hon. Member for North Norfolk that members of the Committee seem keen to score points. I know that North Norfolk is a long way away from the rest of the country, but those of us who have dealt with other members of his party have not noticed that they are particularly reticent about trying to score points. We will take no lectures from a Liberal Democrat on that issue.
My hon. Friend the Member for Hertford and Stortford and I have tried to point out that, at the beginning of this debate, at least, it was not entirely clear what is meant by
''matters connected with an employee's employment''
that do not arise under his contract of employment. However, a few examples given subsequently have made matters clearer. It appears that the Minister has tried to establish the concept, with which I would not disagree, that no one should suffer detriment as a result of taking paternity leave or adoption leave. That is not what he has achieved, however.
Let us consider the example of a company, of which I know many, that customarily provides free sandwiches for every employee at lunchtime. Let us say that that benefit was withdrawn while an employee was on paternity leave—I accept that such leave lasts for only two weeks and maternity leave lasts much longer. The employer might say, ''This is crazy. The sandwich bill has gone through the roof and I'm not doing it any more—no more sandwiches!'' Under the Bill, he could do that, except in respect of the person who is away on leave. If the Bill said that a person who is absent on leave under this section should not suffer any detriment as a result of being absent on leave, that is to say that he should not be treated any worse than his workmates who are still at work, I could accept it. Amendment No. 118 will address the concern that that creates a situation in which people who are absent are protected in a way in which people who remain are not.
Mr Rob Marris (Wolverhampton South West, Labour)
Free sandwiches are a helpful example, certainly more helpful than the hon. Gentleman's obsession with car parking. Section 80C(1)(a) concerns
''terms and conditions of employment which would have applied if he had not been absent''.
If an employer decides that the sandwich bill has gone through the roof on the Friday of the first week that an employee is absent on paternity leave, and states that from the following Monday, which would be the second Monday of the paternity leave, no one is getting free sandwiches, that covers the person on paternity leave. That is because the right arises under the terms and conditions that would have applied had the person not been absent. If an employee on paternity leave had been working on that Friday, he would not have had his free sandwiches from Monday, which means that his position is no worse.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
That is extremely helpful, and no doubt exactly what the Minister was about to say. While we are closing this debate, I invite the hon. Gentleman to turn his attention to amendment No. 118 to see whether the same argument can be adduced. His intervention has been helpful, and I shall be reassured if the Minister can confirm that that is how we should interpret subsection (5)(a).
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
What a fascinating exchange. I can confirm that interpretation, which I gave as an example.
The hon. Member for Hertford and Stortford said that he remains unconvinced because the phrase ''matters connected'' has not been explained. We have come up with three ''matters connected'', and I do not know how many more he might want. The thrust of his contribution was that we are making a mistake, but I never said that. He then pointed out that the Bill relates to Conservative legislation introduced in 1992, which was helpful because I had forgotten that. Of all the things that happened between 1979 and 1997, I would not criticise that legislation because it has caused us no problems.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I bet we did not. For those anoraks who want to check the record, we probably did not criticise that aspect of maternity leave.
In responding to an intervention, I made it clear that we are discussing non-contractual terms of employment that concern issues such as car-parking spaces and membership of a gym. If the car park were removed while an individual was on paternity leave, or, as will be the case from 2003, while a woman was on a year's maternity leave, that individual's right to parking would also be removed.
My wife works at an institute of psychiatry. While she was on maternity leave a new block was built on the car park, which no longer exists. She could not have retained her right to the parking space because she was away from work. Similarly, if an employer who finds that the provision of free sandwiches has become onerous and that the company looks like it will go bust if it continues to provide them decides to cancel them for everybody, they are cancelled for a man on paternity leave. I am happy to give that assurance, and I hope that at the end of an enjoyable and heated debate—lots of Calvin Klein's were getting into twists—the hon. Gentleman can accept that there is no need to push the amendment.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
It says something about the ministerial salary that the Minister can afford such exotic underwear.
The debate has been useful, and the Minister has clarified the matter. We are discussing a no-detriment situation, and we all regard that as fair. My hon. Friend the Member for Hertford and Stortford has, in a broader context, made a valid point by pointing out that in relation to one year's maternity leave, if not two week's paternity leave, employers may be more careful about how they document entitlements or rights to non-contractual benefits and privileges when they could be used over long periods of time. The principle is clear, the Minister has clarified the matter and we shall probe the issue in a different way with the next amendment. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 118, in clause 1, page 4, line 40, leave out subsection (2).
The amendment addresses section 80D(2), which deals with dismissal. I should like the Minister to confirm that that paragraph does not create a situation in which a person who is absent is treated differently from a person who is still at work. In other words, if there is mass redundancy or mass dismissal, a person who is absent should be treated on a no-detriment basis that is analogous to the way in which those who remain at work are treated.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
That is our intention. We are drafting legislation analogous to maternity leave provisions. Given that the Bill concerns two weeks of paternity leave, it is difficult to believe that the provisions will be frequently needed in practice. Nevertheless, it is right as a matter of principle to give men on paternity leave the same rights as women on maternity leave. It would be confusing and potentially dangerous for employers if we were to operate regimes that were subtly different for the two forms of leave. As I have said before, employers were keen to tell us that they wanted the two things to be synonymous.
This is a matter for regulations. We shall consider the case for using them carefully and we shall consult widely. The provision is analogous with maternity leave and it will not be used often because the duration of paternity leave is short. Given those assurances, I hope that the hon. Gentleman will feel able to withdraw the amendment.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
Will the Minister and his advisers think carefully when drafting these regulations? This point applies to existing regulations relating to maternity leave because there is a complex comparison between the existing normal law on redundancy situations, the entitlement to alternative employment and the obligation on the employer to look for alternative employment. These special provisions, which apply in the context of maternity, will now apply to paternity leave. The regulations relating to maternity give a more privileged position to a woman on maternity leave than, for example,
someone who has a disability or another person in the workplace who might have an equal right to an opportunity to alternative employment.
The regulations relating to both maternity and paternity must be examined carefully to ensure that we are preserving people's rights while they are away, and not giving them enhanced rights above those of other employees who may have equally pressing cases for being considered for alternative employment.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
That was a helpful contribution. The hon. Member for North Norfolk put into words precisely my concern. From the Bill, it seems that regulation could provide that employers have to offer alternative employment to an employee who has been absent on leave, in circumstances where they would not have to offer employment to someone who had been at their workplace when the axe fell. I hope that I have understood correctly that the Minister intends to frame the regulations in such a way as to prevent that and that we are ensuring no detriment through absence, but equally that there will be no special protection of an employee's position resulting from absence. Since the Minister has not leapt to his feet to contradict me, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 119, in page 5, line 3, leave out paragraph (a).
Mr David Amess (Southend West, Conservative)
With this we may discuss amendment No. 120, in page 5, line 6, leave out paragraph (b).
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
These are two brief probing amendments to allow the Minister to clarify what regulations he expects to make under paragraphs 80E(a) and (b). I would be grateful if he would tell us his intention. Both paragraphs clearly provide for areas where regulations will be necessary, but they have the potential to create more red tape and a great deal of burdensome administrative work. We need to be clear that they will be light-touch regulations, the minimum necessary and appropriate to deal with the situation.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
Amendment No. 119 relates to an area on which we touched in discussing amendment No. 103. As we said then, our approach is to avoid imposing on employers the delicate task of trying to check whether an employee is to be the father of a child not yet born. That is unprovable; instead, we want to provide for employees to sign a self-certificate asserting their eligibility for paternity leave. That is the sort of evidence that we see employees providing to their employers. Paragraph (a) will allow us to make that provision.
We will also be able to specify matters such as the advance notice that an employee must give an employer. In most cases, it will be 15 weeks before the baby is due, as we have already discussed. I hope that we can agree that it would be wrong to remove paragraph (a).
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
Why does new section 80E take us back to stating that regulations under section 80A or 80B ''may'' make provision about these matters? In the overall architecture of the Bill, it will be a requirement that regulations are made dealing with notice, evidence to be produced and keeping of records. Earlier provisions contained the word ''shall''. The Minister told us that that was because the Government recognised that there had to be regulations in those cases. Are regulations not essential to deal with these matters?
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I have a feeling that paragraph (h) may be relevant here. In the previous debate to which the hon. Gentleman referred, I pointed out that while we would introduce regulations under two paragraphs, we did not think that that would be useful or helpful for paragraph (h). We felt we could deal with it through guidance notes. Unless I have a different thought over the next couple of minutes, that is the why we put ''may'' rather than ''shall''. There will be a specific debate on that point, so I shall deal with the issue at that stage.
Amendment No. 120 would remove our ability ever to regulate to specify what records may need to be kept. It is important to have a probing amendment and to recognise that we are referring to records that relate to the employee's paternity leave only. Obligations on the employer that relate to pay are covered elsewhere in the Bill. As things stand, and on assumption that everything works well in practice, we do not expect that that provision will be used. We believe that everything will work well in practice and we have consulted widely on the detail of the new scheme. It has considerable support from those who will be operating it and we have avoided imposing undue bureaucratic burdens without leaving the system open to abuse and exploitation.
However, we accept that the possibility of abuse exists because it does so for any such right. The right to paternity leave and pay is entirely new so it is impossible to foresee how it will be used or misused. That should answer the hon. Gentleman's point. We should retain a power to regulate on questions of record-keeping in case, over time, evidence of abuse is proved to have taken place. A requirement to keep records might minimise or help tackle that abuse.
Again we come to the issue of ''may'' rather than ''shall''. We do not expect to use the power more than we have used the analogous power under the maternity leave provisions. That power has not been used, as the intervention in the last debate suggested, for nine years. If we the power were used under these provisions, I would not expect it to happen before representatives of employees and employers were consulted. Such a right should be available in the event that the need arises and, on that basis, I ask the hon. Gentleman to withdraw the amendment.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
I share the concern of the hon. Member for Runnymede and Weybridge that we need to ensure that the regulations do not impose too burdensome a requirement on employers or employees. If the hon. Gentleman is concerned for business interests, he should want regulations that clearly specify notice requirements on an employee to
ensure that the employer has adequate notice before the taking of paternity leave. That is essential and I would therefore like the regulations to be drafted with a light touch—the Minister has substantially reassured me on that.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I assure the hon. Gentleman that that was also my concern. I wanted to be clear that in a long list of regulations, all headed with the word ''may'', we understood what the Minister was and was not going to do. I am glad that we had that debate because the Minister began by saying that he would make regulations under every paragraph except under paragraph (h). He then read from his prepared brief, which stated he had no intention of making regulations under paragraph (b). We have therefore established that regulations will be made about notice and evidence but they will not be made, at least initially, to require records to be kept. That is a sensible balance between certainty and clear procedures and not creating excessive bureaucracy. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 112, in page 5, line 10, at end insert—
'(cc) make provision requiring employers to pass copies of notices received under sections 80a or 80b from employees to the Child Support Agency in specified circumstances'.
The Minister should be able to respond to the amendment quickly because I think that I have answered it for myself since tabling it. I think that clause 13(2) provides for information to be passed to the Child Support Agency. I tabled the amendment because it seemed that the best way to deter fraudulent claims of paternity was to ensure that the CSA was aware of them. If the Minister can confirm that the amendment is redundant under clause 13(2), I will withdraw it.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
This is one brief that I managed to read in advance, and the answer is yes.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 121, in page 5, line 13, leave out paragraph (e).
The amendment would remove paragraph (e) from new section 80E and has the same purpose of probing the Minister as to what is intended. That paragraph allows for regulations to make special provision for cases in which an employee already has a contractual right that corresponds to the statutory rights provided for by the Bill, which is curious. What special provisions does the Minister think will be necessary to deal with the impact of a statutory right in a case in which the right already exists by virtue of a contract? I cannot think of a special provision that would be required, so can the Minister clarify that?
Mr Norman Lamb (North Norfolk, Liberal Democrat)
I speculate briefly that the intent is to ensure that the employee does not have the right both under the contract of employment and under the new statutory provisions. Perhaps the Minister can confirm that.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I shall do so in a long-winded way, if hon. Members do not mind, because it is important to make matters clear.
Paragraph (e) sets out the powers to make regulations that deal with cases. In many cases the employee will have a right to paternity leave under his contract of employment, or otherwise, that corresponds with his new statutory rights under the Bill. Removing the paragraph would mean that a father who had a contractual entitlement to paternity leave and qualified for the same right under the new provisions, would benefit from both. If his contractual right goes beyond the new right, nothing in the Bill will prevent him from enjoying that wider right. However, if the employer is already offering rights that are equivalent to those offered by statute, it would be wrong that he should suffer the double whammy of an employee receiving statutory rights on top of those.
The paragraph also mirrors the use of the parental leave regulations, by which special provisions are made for parents who qualify for both a contractual right to parental leave and leave under regulations. I expect the regulations made under this clause to mirror those that already exist in the parental regulations. With that explanation, I hope that hon. Gentleman will withdraw his amendment.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
That is useful. What the Minister has said has inspired a thought—I do not have an amendment for it, but may return to it. Later in the Bill is a provision that prohibits the employee being required to contribute directly or indirectly to statutory pay. The Minister appears to be confirming that in a case in which an employee is already contractually entitled to a certain amount of pay for a certain period, and he loses that entitlement because of the statutory entitlement, he would, indirectly, be contributing to it. That thought that may provoke another amendment. However, he has clarified the intention of paragraph (e) and I am grateful to him. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 122, in page 5, line 23, leave out 'entitled to take' and insert
'who is taking or has taken.'.
The provision covers people who are actually taking or have taken leave, not people who are merely entitled to take leave but choose not to do so. I suspect that many people who are entitled to take leave will not do so. I may have misunderstood the provision, but it should apply to people who are actually taking or have taken leave.
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
The hon. Gentleman is right. Many fathers will choose not to take advantage of the provisions and will not take paternity leave. The amendment would make no difference to the spirit and intention of the provision and would not even create a drafting problem, but it is unnecessary. It would create a problem because the wording in the Bill would be different from that in maternity leave legislation. Adopting a different formulation, however subtle, would be dangerous because, as we have said previously, that might suggest that there was a subtly different intention. Our intention is not different and
the amendment has the potential to confuse, so I ask the hon. Gentleman to withdraw it.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I understand what the Minister is saying and perhaps I did not express myself clearly. I am suggesting that modification of the application of other statutes should be limited to the period during which the leave is taken, as opposed to a much wider application. Someone who is entitled to take the leave is entitled to take it before he takes it, during the period of the leave and perhaps afterwards. What enactments does the Minister envisage will apply in a modified way and should they not be applied in a modified way only during the actual period of the leave?
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I will consider the point, but the intention is that the drafting should relate to the existing position of women who take maternity leave, although there is a difference because women must take maternity leave, but men have a choice with paternity leave. We did not think that the amendment would make any difference to the thrust of the provision, but the hon. Gentleman has raised a point that we did not spot when going through the amendment.
Mr Norman Lamb (North Norfolk, Liberal Democrat)
The Minister may have been about to reply to the hon. Member for Runnymede and Weybridge, but I should be grateful if he would outline the enactments that he has in mind in the clause and
the regulations that could be made under it. I cannot recall what enactments need amending in relation to someone taking maternity leave or being entitled to maternity leave or paternity leave. Can the Minister help with that?
Mr Alan Johnson (Minister of State (Employment and the Regions), Department of Trade and Industry; Kingston upon Hull West and Hessle, Labour)
I shall try, but perhaps I could return to the matter and give some examples in due course. In the meantime, I hope that the hon. Member for Runnymede and Weybridge will withdraw the amendment.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I am happy to withdraw the amendment, but I hope that the Minister will find an opportunity later to answer the question posed by the hon. Member for North Norfolk because that may enable us to understand why ''entitled'' has been used instead of the wording proposed in the amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
Clause 1 is long and complicated. It inserts a number of new sections into existing legislation—
It being twenty-five minutes past Eleven o'clock, the Chairman adjourned the Committee without Question put, pursuant to the Standing order.
Adjourned till this day at half-past Two o'clock.