Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Most of the issues that must be explored in clause 1 already have been, in some detail, by the amendments. Indeed, some debates have been considerably broader than the amendments. However, I would like to raise further issues with the Minister. I particularly enjoy stand part debates because Ministers must answer questions without having had the benefit of seeing them two days in advance.

This morning, the Minister clarified a point that was exercising me about who would be entitled to paternity leave. The Minister made his now-withdrawn remark about the biological relationship between father and child being the important element. I am keen to ensure that, as we introduce more statutory rights, we do not inadvertently move away from encouraging a co-operative, discursive approach to settling matters such as taking leave. Amendments have been considered that would have made a nod in that direction, but I would be grateful if the Minister said something about his desire to see employees and employers working together to ensure that leave entitlements are dealt with in way that not only respects the needs and wishes of the employees, but is sensitive to the needs of businesses, particularly small business.

I hope that any guidance will make it clear that an employer will be expected, as part of good practice, to have an informal discussion with his employee to arrange something that is appropriate for both parties before he serves a bland notice on his employee telling him that he will be absent on such and such a date. An important feeling that has arisen from clause 1 discussion is disquiet on both sides of the Committee about the fact that we may be imposing, by statute, rigidities that employers and—in certain cases—employees would want relaxed. I refer to the discussion about whether leave can be taken in different form than a simple block of one or two weeks.

I want to raise the issue of polygamy with the Minister, which might sound strange. The Bill specifically addresses polygamous marriages and relationships but clause 1 clearly does not. Some employees could conceivably be found to be claiming

rather a lot of paternity leave on the basis of multiple births and their responsibilities to support multiple mothers. Will the Minister explain whether he intends to deal with the issue of polygamy in regulations. Some clauses provide a framework for dealing with multiple births or adoptions, which we will discuss later. However, there may be multiple claims for leave that are not a result of multiple births from one mother but of sequential births from different mothers with whom the employee has the specified relationship. We are obviously working in something of a vacuum as we do not know what the specified relationship is to be. It is probably safe to conclude, however, that marriage will be one of the specified relationships.

The Government have made it clear in the explanatory notes and in their response to consultation that they intend to set the period for statutory paternity leave at two weeks. As one would expect, the Bill is permissive, in that it requires that regulations set the period of leave, but it also provides that the regulations shall specify a

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

That does not seem very neutral phraseology. If the intention is to be permissive and to allow the detail to be established in regulations, it would seem appropriate simply to state that regulations will specify the period of paternity leave. Adding the requirement that regulations specify a period of at least two weeks suggests that there is another agenda. Given that two weeks is clearly seen as the minimum, the Government perhaps have some form of ratchet in mind. If so, that would be rather alarming, particularly to small businesses. I hope that the Minister can set my mind at rest and explain why the provision is phrased in that way.

We have already had a little discussion about the matters that will be treated as employee entitlements not arising under the contract. Proposed new section 80C(6), however, refers to regulations that

''specify matters which are, or are not, to be treated as remuneration for the purposes of this section.''

That provision will prove important later, in terms of setting pay rates. It is presumably intended to deal with the question of whether tips and gratuities, for example, will form part of remuneration. I remember long and interesting debates on that subject during the National Minimum Wage Bill Committee. I should be grateful if the Minister would explain what regulations he has in mind in respect of matters that will and will not be treated as remuneration.

In proposed new section 80C(7), the language reverts to the permissive. It states that regulations ''may make provision'', but in the context of the right to return to work, of

''seniority, pension rights and similar rights'',

and of

''terms and conditions of employment on return.''

I do not want to do the job of the hon. Member for Manchester, Central (Mr. Lloyd) for him, but in the spirit of this legislation, regulations must exist that ensure that people do not suffer loss of seniority, pension rights and so forth on returning to work. According to the proposed new section, the

Government ''may'' make provision through regulations. I hope, however, that the Minister will point out those areas for which the Government will indeed make provision, and those for which they are merely contemplating such provision.

Similarly, on the provisions relating to certification procedures and the producing of evidence, the Minister told the Committee that he intends that self-certification will be the standard form provided by an employee to an employer. Will there be a standard format? Will the process be carried out in writing, or will it be informal? More broadly, what other provision will he make in respect of the procedure for giving notice? Will it be given in writing, for example? He has given the Committee some information, but he did not give us specific details when he dealt with the amendments.

Turning to new section 80E, paragraphs (c) and (d) address:

''the consequences of failure to give notices . . . and the consequences of failure to act in accordance with a notice''.

The terminology is rather sinister, and we must know what those penalties would be because they will be provided for in regulations and the Committee ought to know their financial magnitude. Elsewhere in the Bill, especially in the sections relating to payments, the penalties are specified in monetary terms, and I would be grateful if the Minister were to say something about that.

New section 80E paragraph (f) provides for regulations:

''modifying the effect of Chapter 2 of Part 14 (calculation of a week's pay) in relation to an employee who is or has been absent from work on leave under section 80A or 80B'',

which are the two classes of paternity leave that we have considered. Will the Minister explain what modification is required to give proper effect to new sections 80A and 80B because it is not immediately apparent?

Mr Rob Marris (Wolverhampton South West, Labour)

More prosaically, I want to ask my hon. Friend the Minister about new section 80A(5)(b), which appears to be the twins or triplets paragraph. Do the Government intend that the father of newborn twins should get only two weeks or less than four weeks?

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

The first point made by the hon. Member for Runnymede and Weybridge (Mr. Hammond) concerned flexibility and the co-operative approach, by which he meant that the employer should talk to the employee because in the majority of cases where these provisions already exist as procedures introduced by the employer that kind of communication is part of the everyday operation of such schemes. We would certainly amplify best practice in the guidance that we shall produce. There is an inalienable right during the period of 56 days to take leave starting from the date of birth. When an individual gives notice, they can specify that they want to take their leave on the date of birth, which is not specific for obvious reasons, or they can choose to take a specific period starting on a specific date during the

56 days. Consultation would be necessary in the cases of employees who say, ''I don't want leave from the date of birth, but I do want it from a couple weeks afterwards. Do you mind if I start it on a Monday?'' The employee has the right, which cannot be reduced or diminished, in that case, but I would still expect there to be constructive dialogue.

If an employee wants to change the period once they have set it, which would mean that they had picked a specific period before deciding that they needed to change it, our intention in regulation would be that they must give 28 days' notice. The hon. Gentleman asked what would happen if they did not give notice; the answer is that they would not get the leave.

There are some questions that one does not expect to be asked in Committee, of which, ''Will the Minister deal with polygamy in the regulations?'' is one. I have a note on this matter, but perhaps it would be a mistake to read it out because I thought that I had grasped the matter before I read it. This may refer not to polygamy but to be the father of several children, for whatever reasons. I had better leave these things to hon. Members' imaginations.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Joking aside, the crucial point is that there may be children of several different relationships but, in order to qualify, that extremely busy man would have to care actively for the children and support their mothers, wherever they happened to be.

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

Yes. It would not be right to debar people in that situation from taking paternity leave for each child. Social security legislation has had to deal with polygamous marriages for some time. This is not the first time that such arrangements have been regulated by Government. Perhaps a previous Minister has been asked these questions on other Bills. We would obviously talk closely to the people who dealt with this in the past before we framed any regulations. We would have to ensure that we got it right. In general, the father should be entitled to paternity leave however many children were born, provided that he met the qualifications set out elsewhere in the regulations, particularly the parental qualifications.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Would the Minister find it convenient now to answer the question asked by the hon. Member for Wolverhampton, South-West (Rob Marris), which is relevant to this issue?

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

Yes, that concerns multiple births. There we simply mirror the maternity leave regulations where there is one period of leave. That has been the procedure for a long time under maternity leave. We see no reason to change it for paternity leave.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

So a person who is in two simultaneous relationships, where two mothers give birth on the same day to two children is entitled to two periods of leave, but a person in a monogamous relationship whose partner gives birth on the same day

to twins is entitled to only one period of leave. That does not sound equitable. It seems to send a rather rum signal.

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

One reason for paternity leave is to help the mother. In the first case, there are two mothers, and in the second, only one. That one mother receives one period of maternity leave. The hon. Gentleman raises important points. They are on the record. They need to be considered because there are complications that the regulations must address. Our principles, however, are basically sound.

Mr Rob Marris (Wolverhampton South West, Labour)

To take a more extreme, but not unknown, example, if a mother gives birth to quintuplets, one can envisage that a period of two weeks' paternity leave would be insufficient for the father. I urge the Minister to reconsider the twins clause. By parallel with maternity leave, I can see that there should not necessarily be 10 weeks' paid paternity leave in the case of quintuplets, but most of our constituents would recognise that if they were fortunate enough to father quintuplets, two weeks would be insufficient.

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

I will take those points into account. Generally we want to mirror the arrangements that have served us well for maternity leave for a long time. We do not want to have different arrangements for fathers. In some cases they have to be different, but we want to mirror the maternity arrangements as closely as we can.

The next question was whether we intend to ratchet up the two weeks. We do not. We consulted widely on that, and we have no plans to increase the period. We have been advised by the hon. Member for Runnymede and Weybridge on several occasions to leave some flexibility. The reason for specifying at least two weeks is that it gives some licence for flexibility, although we have no plans to use it at the moment.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Why say anything at all? The power to determine the period by regulation would give the Minister flexibility upwards, but it gives him flexibility downward too. He has chosen to remove his flexibility downwards, which inspires the he has a specific agenda. Has anything been said about the minimum level?

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

We do not intend to reduce it downwards. That reminds me of the argument about the minimum wage. Do we intend to reduce the four weeks of paid holiday? No, once rights are established, we intend them to remain. As to the future, we have no plans for the level to come down, though changes may occur in the unforeseen future.

What about the meaning of remuneration? Subject to consultation, we intend to make the same provision that applies to maternity leave. Thus, sums payable to an employee by way of wages or salary are the definition of remuneration.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

That seems a very sensible definition, so why is it not built into the Bill?

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

I do not know, but I will think about it and get back to the hon. Gentleman, who makes a fair point.

On self-certification and notice, the hon. Gentleman asked whether a standard form would apply. Subject to consultation, we intend to provide not a standard form but a model or guide for people to use. A standard form under the usual bureaucratic arrangements is unnecessary, but we shall offer a model certificate, which we will discuss with employers' groups.

I was asked about the use of regulations on a week's pay. We expect to make some provision for maternity and paternal leave under regulation 22, but a week's leave may not count to determine average pay for the purposes of the clause.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister makes an interesting reference to regulation 22. Does he have a set of draft regulations in front of him, to which the rest of the Committee is not privy?

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

I hope not. As I said in the debate on amendment No. 146, regulation 22 of the Maternity and Parental Leave etc. Regulations 1999 provides for how many weeks of leave are relevant for the purposes of calculating a week's pay for an employee. The amount arrived at in this way is used in calculating redundancy or unfair dismissal compensation and for various other purposes. We intend to mirror that provision in existing legislation. If any draft regulations pertaining to the clause were available, I would be pleased to see them. I hope that I have answered all seven questions.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

What of the penalties under new section 80C, 80D and 80E? I asked the Minister whether failure would be met by a financial penalty.

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

I cannot remember at the moment what ideas we have for introducing penalties. I shall think further on the point for a second. The hon. Gentleman is asking what penalties will apply if the provisions are not carried out.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

While the Minister is thinking about that, I remind him that I asked about paragraph (f) of proposed new section 80E. What modifications will be required to chapter 2 of part 14 in respect of the calculation of a week's pay?

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

If an employee claims that he is entitled to or takes paternity leave when he is not entitled, any penalty would be a disciplinary matter for his employer, which is a sensible way of addressing the point. On new section 80E, I think that I just provided an answer, which is regulation 22 of the Maternity and Parental Leave etc. Regulations 1999.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am still a little curious. Do we deduce from the Minister's reply that no offence is committed under new section 80E(c) and (d) by failure to produce evidence, keep records or comply with other procedural requirements? Clearly no offence is committed by failure to give a notice, but is there an offence in failure to act in accordance with a notice

under paragraph (d)? I had anticipated that the Minister would say that an employer who failed to comply with some procedures would be subject to a penalty. Is that not the case? If we are talking merely about internal disciplinary procedure, why will regulations prescribe the consequences of such failures? Would that not be a matter only for the employer and employee?

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

There will be no offence in respect of leave, although there will be penalties in respect of pay.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.