Employment Bill

Mr David Amess (Southend West, Conservative)

I remind the Committee that with this we are taking amendment No. 144, in page 13, line 3, leave out from 'work' to end of line and insert

'for a period equivalent to an ordinary adoption leave period, commencing on any date not earlier than 20 days prior to placement and not later than the date of the placement or such period, or periods (being less in aggregate than an ordinary adoption leave period) as he and his employer shall agree in writing.'.

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

When we adjourned, I was concluding my remarks on the amendments. I had explained that they were misguided because they would include in the Bill matters best left to regulation, and I was dealing with the issue of employees and employers having the right to modify statutory rights. I said that it would be wrong to imply in legislation that discussions in the workplace could lead to employees somehow signing away their statutory rights. I do not say that that would be a common occurrence, but it could happen, and we need to guard against it. The amendment is therefore misconceived, and I invite the hon. Gentleman to withdraw it.

Mr Philip Hammond (Runnymede and Weybridge, Conservative)

I am grateful to the Minister for clarifying the start date, as the purpose of the amendment was to probe the Minister on that. I suggested 20 days; he assured me that the Government intend 14 days. The pair of us would have been hopeless in the first world war, because neither of us is prepared to die in a ditch over small arguments. I certainly shall not do so for the sake of six days.

In respect of how leave is to be taken, I accept the Minister's argument that the Bill reflects maternity leave provision and that adoption leave will in practice represent only a tiny percentage of maternity and adoption leave cases. If I were in his seat, I too would argue plausibly that it was inappropriate to reopen discussion.

If I have understood the Bill correctly, it is possible for an employee, without the agreement of the employer, to duck in and out of work at any time during the adoption leave period. That is rather unsatisfactory. However, even if the Minister, in a moment of madness, were to say to me, ''Yes, I agree—we'll change the provision in respect of adoption leave'', it would not take us much further forward, because the greater issue is maternity leave. I have no idea whether there will be a problem in practice.

I am grateful to the Minister for clarifying matters, and 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. 145, in page 14, line 8, at end insert—

'(4) Regulations under section 75A or 75B shall provide that a person suffer no detriment by virtue of taking ordinary adoption leave but shall not be protected from any detriment that he would have suffered had he not been taking ordinary adoption leave.'.

The amendment deals with a matter that we have before discussed slightly differently. The Bill provides for regulations to deal with resumption of employment, seniority, pension rights and so on, but it does not state what principle will be followed in making those regulations. I understand the principle involved to be that no detriment should be suffered, but equally that being absent should not gain an employee any advantage over colleagues who were present at work and not taking adoption, paternity or maternity leave. An additional subsection has been inserted to allow the Minister to say that that is so and to tell the Committee how, in practice and in principle, the Government expect the provisions to work.

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

The amendment seeks, first, to provide safeguards against a non-existent problem. Detriment is dealt with in schedule 6(24), which will amend section 47C(2) of the Employment Right Act 1996, so that employees who exercise their right to ordinary or additional adoption leave do not suffer detriment as a result.

The other point that the hon. Gentleman raised was the case, for example, of someone due to be disciplined for a misdemeanour and the fact that the person is on maternity, paternity or adoption leave should not prevent the disciplinary process from proceeding. People should not suffer detriment on issues that are entirely unconnected with the leave. That does not have to be written into the Bill, because the issues on which they cannot suffer detriment are in the Bill. Matters such as whether an employee should be treated in the same way as every other employee on issues entirely unrelated to adoption, paternity or maternity do not have to be in the Bill as they are already there by omission. The 1996 Act cites circumstances such as whistleblowing or study leave where no detriment will be suffered by the employee and we have specifically followed the architecture of such legislation. The individual cannot suffer detriment for taking leave. That is written into paragraph 24 of schedule 6. The fact that other issues

not related to leave are not mentioned means that employers are entitled to treat those employees in the same way as others.

I hope that, with those assurances, the hon. Gentleman will seek to withdraw the amendment.

Mr Philip Hammond (Runnymede and Weybridge, Conservative)

The Minister has helpfully drawn attention to the relevant schedule. I am sorry that I had not spotted it myself. He reassures us that the provision works in the way that I think we understood it was intended to work and he has explained why a reference in the Bill is not required. I am grateful, and 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. 146, in Clause 3, page 14, leave out lines 28 to 31.

The amendment would exclude paragraph (g) from new section 75D, a section that allows the Minister to modify or apply any enactment with such modifications as he believes appropriate. As before, I have tabled the amendment to probe the Minister about the circumstances he has in mind for modifying other enactments. Giving Ministers a power to amend an Act by regulation is a serious matter. We need to scrutinise it carefully, and it would be useful, and not unusual, for me to ask the Minister what he has in mind under the powers that he is giving himself.

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

Although this is a probing and technical amendment, it would have very serious consequences that I should perhaps explain. Last week, in the context of amendment No. 122, we discussed a precisely analogous provision in respect of paternity leave. Such provisions appear frequently in legislation. For example, identical provisions for maternity leave and parental leave are included in the Employment Rights Act 1996. In effect, such a power enables us to consider the interaction between the new rights that we are introducing and provisions in existing and future law. Any tension or conflict in the detail of the two areas of law enables us to deal with the issue through regulation. It is clear that it could be disproportionate to use primary legislation to deal with matters that might prove relatively trivial.

Almost by definition, it is not possible to be precise about how we might use the power. If we were aware of every provision that needed amending, we would have included all the necessary amendments in schedule 6, or elsewhere in the Bill. Regulation 22 of the Maternity and Parental Leave Regulations 1999, which provides for the treatment of weeks of leave for the purposes of calculating a week's pay for an employee, is a good example of how we might have used the power. The week's pay that is thus arrived at is used, where necessary, in calculating redundancy or unfair dismissal compensation, and for various other purposes.

As it happens, we spotted this issue and we have made specific provisions, but even if we had overlooked it, the fall-back provision would have allowed us to deal with it. There is no better example

of how we might use the power than the amendment tabled by the hon. Member for Runnymede and Weybridge (Mr. Hammond) in the light of a Law Society briefing on the interconnectedness of paternity leave and working time regulations. As I said, I was not aware of any tensions arising in respect of maternity leave provisions, but I undertook to study the Law Society's views in more detail. I confess that I have yet to find the time, but if an issue needs to be tackled, subsection (1)(g) will allow us to do so.

A final and important example is the Adoption and Children Bill, which is currently passing through the House. That legislation does not allow unmarried couples jointly to adopt, but it might conceivably do so at some point. Were it to do so after the Employment Bill had received Royal Assent, there might be technical implications for the framework of adoption leave. Subsection (1)(g), which the hon. Gentleman seeks to remove, would allow us to take account of that interaction.

I hope that I have given some examples of why we need the provision. It has served us well in respect of other legislation, and I hope that the hon. Gentleman will withdraw his amendment.

Mr Philip Hammond (Runnymede and Weybridge, Conservative)

I understand the attraction, from the Government's point of view, of having wide, catch-all powers to change other enactments or to modify their application. It is rather disconcerting, however, to hear the Minister admit openly that they want those powers in order to avoid having to bother to find out the precise ramifications of legislation for which they seek Parliament's approval.

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

Future legislation.

Mr Philip Hammond (Runnymede and Weybridge, Conservative)

The Minister corrects me, and I accept that there is a case to be made in that regard, but the proper procedure would be to include in such future legislation provisions that, where necessary, modify all past legislation. That would at least ensure that Parliament scrutinises such modifications in the form of primary legislation.

I suspect that the Minister does not want to rule out possible use of the provision to deal with modifications to existing enactments that have yet to be spotted. That gives some cause for concern, as the Bill might have consequences that have yet to be thought through. That, in turn, raises questions about the seriousness with which provisions such as the regulatory impact assessment can be taken. We may be writing a blank cheque. I am not suggesting that the provision is unusual or unheard of; sadly, it is all too common in primary legislation. However, that does not mean that we should not flag up, on a regular basis, the fact that we could be giving Government a wide power to rewrite existing legislation, having failed to draw attention to the impact of the Bill at the right time in Committee. The more that I reflect on the matter—it is difficult to reflect while speaking—the more I think that the argument about future legislation is not good.

Future legislation should address incompatibility with existing legislation and, on reflection, the Minister might accept that too.

However, I accept that the Minister and his draftsman have not dreamt up this paragraph in a new attempt to subvert the parliamentary process, because it covers an established principle—though that does not mean that we should not have challenged it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Mark Prisk (Hertford and Stortford, Conservative)

I should like to review where we have got to on clause 3. The principle of adoptive leave is something that all Committee members welcome. In this country, we have not valued as much as we might have done the importance of families in adoption or the role of Government and Parliament in encouraging adoption. The clause is important and we should promote and support it as a principle. Almost all the amendments have been probing and have tried to ensure that the Bill is enacted in a form that is practical in implementation and achieves the consequences that the Minister set out to achieve.

None the less, concerns remain such as the distinction between domestic and overseas adoptions. That might be reviewed in future. My hon. Friend the Member for Runnymede and Weybridge also rightly pointed to the worryingly extensive use of regulations, particularly in this clause. I am aware that the Bill is intended to be enabling and is designed as a framework, which the Government can flesh out later, but there are two sides to that coin. That gives the Government flexibility, for which there is a need, but, at the same time, two problems arise.

First, there may be unintended consequences, which makes it difficult for us to understand how the Bill will work in practice, and, secondly, the first problem makes it difficult to ensure that an assessment of the costs of the clause, through the regulatory impact assessment, is accurate. All the assessment can do is assess whether the framework, and not its contents, is accurate and has been quantified effectively. The unintended consequences and the inability of the regulatory impact assessment to be accurate because of lack of detail mean that one still has concerns about the detail of the clause. That notwithstanding, the debate has been important and Conservative Members support the principle of adoption leave.

Mr Charles Hendry (Wealden, Conservative)

Does my hon. Friend agree that one of the most important aspects of the clause is that it allows for the placement of children up to the age of 18 and not just young children. It covers children who may well be coming out of care homes where they have been in an unsatisfactory form of care. If we are to deal with the problems that arise later in life, particularly those of homelessness and children who have come out of care, it is desirable that they should have been brought up in a family environment, which is why this is welcome.

Mr Mark Prisk (Hertford and Stortford, Conservative)

I am grateful to my hon. Friend for highlighting an important point—there are not many others—on which the Bill may be welcomed. I welcome the principle behind the clause. Concerns remain but I hope that they can be ironed out when the regulations are quantified and completed.

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

I am grateful for the comments made by the hon. Members for Hertford and Stortford (Mr. Prisk) and for Wealden (Mr. Hendry) on adoption applying to children up to 18 years of age.

We were open about our intentions when we published detailed plans as to how we would frame the regulations in November. That allowed people a feel for how we intend to operate, and we included the kind of provisions that we have mentioned. Where a married couple adopts, one spouse can choose to take adoption leave and the other can choose paternity leave. That has led to legislative confusion because a woman could take paternity leave, but it was nevertheless the sensible and correct thing to do. We also consulted with all the adoption organisations and agencies and they unanimously approved our approach.

My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) made the important point about overseas adoptions that although we would not generally think that the placement of a relative fitted the bill for adoption, that could be the case for adoptions from overseas, of which there will be only around 300 a year. I got my figures confused this morning, Mr. Amess, perhaps because I missed your inspirational presence in the Chair. I mistook the figure for overseas adoptions for the figure for adoptions in total, so I must make it clear that 200 to 300 will be the number of the overseas adoptions. That said, my hon. Friend made an important point that we are considering carefully. He cited a constituent who will adopt a child from overseas—having had no previous contact—who is a relative. We shall examine the issue carefully, and work with the Department of Health to ensure that we address it in the regulations.

I am a little concerned by the comments of the hon. Member for Hertford and Stortford on the regulatory impact assessment. He might be girding his loins for a later amendment—if we get to it—but the assessment was not a bad stab that is more likely to be accurate than some of the other figures. Assessments are always difficult, but on adoption I remind hon. Members that the cost to the taxpayer will be £10 million. We envisage that the one-off implementation cost will be £1 million and the recurring costs will be between £2 million and £3 million. Not a single employer opposed the measure, and the most common comment was that it is long overdue, a point that has been reflected by Opposition Members.

Clause 3 ordered to stand part of the Bill.