Clause 3 - Additional paternity leave: adoption
Work and Families Bill
11:45 am
Kitty Ussher (Burnley, Labour)
I beg to move amendment No. 17, in clause 3, page 2, line 24, after ‘child’, insert
‘and that the commencement date for such leave is the same as the return to employment or self-employment of the child’s mother.’.
Hugh Bayley (City of York, Labour)
With this it will be convenient to discuss the following amendments:
No. 23, in clause 3, page 2, line 27, leave out paragraph (a).
No. 35, in clause 3, page 2, line 46, at end insert—
‘(f)limit the total number of days during a period of leave under this section in which an employee may work for his employer without bringing the period to an end.’.
No. 36, in schedule 1, page 18, line 36, at end insert—
‘(d)limit the total number of days during an ordinary maternity leave period in which an employee may work for her employer without bringing the period to an end.”.’.
No. 30, in schedule 1, page 18, line 45, at end insert—
‘(c)may limit the total number of days during an additional maternity leave period in which an employee may work for her employer without bringing the period to an end.”.’.
No. 31, in schedule 1, page 19, line 2, leave out from ‘(2)’ to end of line 4 and insert—
‘(a)may specify circumstances in which an employee may work for his employer during an ordinary adoption leave period without bringing the period to an end;
(b)may limit the total number of days during an ordinary adoption leave period in which an employee may work for his employer without bringing the period to an end.”.’.
No. 32, in schedule 1, page 19, line 13, at end insert—
‘(c)may limit the total number of days during an additional adoption leave period in which an employee may work for her employer without bringing the period to an end.”.’.
Kitty Ussher (Burnley, Labour)
It is an honour to move my first amendment under your chairmanship, Mr. Bayley.
This is a probing amendment to elicit a little more elucidation from my hon. Friends on the Front Bench as to their intention when laying down regulations determining the precise nature of mainly fathers’ ability to take paternity rights.
In the pre-Budget report a year ago, the Chancellor said that the Government would allow mothers to transfer part of their leave to fathers. That was all that was said at that point. The impression was given that it would be quite a flexible arrangement so that at any point in the maternity leave if both parents wanted it the leave could be transferred to the father, who could take over the responsibility for the young child. Since then the Government have consulted on their proposal. Although no decision has yet been made and I understand that none will be made during the passage of the Bill, some remarks have been made that suggest that Ministers are moving towards a situation where they would prefer the woman to take the first six months and the man to take any entitlement that remains, up to an additional six months.
My amendment would return us to the spirit of the original announcement so that it would be entirely flexible. If a woman wished to return to work before six months, the father would take up the leave if he wanted to at that point. This is important because otherwise, if both parents wished to swap over, it would be denied to them. That could be a problem where the woman wanted to go back to work because it was important to her identity and happiness or where it was financially sensible for her to do so. Although the majority of cases may not be like this, as was emphasised in our earlier debate, she may earn more and it may be in the financial interests of the family, and therefore the child, for her to return earlier if she wants to. The mother may be in such a position in her organisation—perhaps a small business or even a large corporation—that she wants to return early for fear of what might happen to that organisation if she does not continue to be at the helm.
I must declare a small interest here, as a female Member of Parliament with a small child. I wished to return to work and my constituents wished me to do so, but under the current legislation my husband had to resign his job in order to take over the care of our child. If we do not accept the spirit of this amendment in regulations, we shall be in an anomalous situation where parents would have to introduce an alternative form of child care for the period from three to six months, which would seem unnecessarily disruptive if a father wished to take over. Alternatively, the Government would make it more likely that a small business with a mother at the helm would fail, which is not what we are attempting to do. The mother would be forced to remain at home until her husband was able to take over.
I understand that there has been considerable consultation on this. I should like to give my response on what I think some of the issues are. Obviously, Department of Health guidelines and World Health Organisation guidelines state that women should be encouraged to breastfeed for the first six months. However, it is not law that they should do so. If that is what we intend, we should legislate for it. The Department of Health makes all sorts of other recommendations about eating five portions of fruit and veg each day, not smoking, not drinking too much and so on. Ultimately it is a matter of choice. It is also technically possible to return to work and breastfeed through expressing milk. It is tedious, but it is possible. Indeed, in other parts of the statute book we make it easier for mothers to do that through the legal requirement on employers to provide places where they can express milk and so on.
I understand that businesses may find it complex to have to keep track of what the mother is doing when a father asks to exercise his paternal rights. However, that would also be the case if they decided to do it at month 7 or month 8, which is what the Government seem to be suggesting at the moment. I do not see how it is more complex to do it at month 4 than at month 7. A large number of the consultees did not favour it. However, some did. Those who did represent an enormous interest group—fathers, through Fathers Direct. My question to my hon. Friends is whether the responses to the consultation are representative of the type of people who need the spirit of the amendment to be reflected in regulations. I never thought that I would say this, but I have tabled the amendment because I believe that the provision discriminates against men, and I am all in favour of equality.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
I am sure that the hon. Lady will not want me to say it, but the amendment seems to be intended to introduce the same sort of flexibility that I was aiming for in my amendments. I support her aim of eliciting elucidation, as I think she put it. There should be flexibility for mothers and fathers to make the relevant judgments themselves, rather than having a straitjacket placed on them. Despite the pay gap that, as I pointed out, sadly still exists, there are, none the less, many households where the woman earns more money, or is in a more responsible and more onerous job than the father. There may be many circumstances in which it suits that household for the woman to return early to work and hand over to the father.
The Bill seems to introduce a real block by requiring that if the woman of a household has very good personal reasons for wanting to return to work after, say, three months, a period of another three months would have to intervene in which another carer would look after the child, before the father could take his entitlement to paternity leave. I am sure that the Government would want to avoid that consequence. It does not seem a good approach to the care of the child to have the mother caring for him or her for three months, a carer for the second three months, and the father thereafter. We should all try to avoid that outcome.
I should have thought that, given that the sharing of maternity and paternity leave—the substitution that the Bill provides for—introduces a complexity that employers will have to deal with at some stage in any case, it would make no difference if they had to deal with that task after three months rather than after seven or eight, or whatever period would need to be clocked up under the Bill and the expected regulations. As the hon. Lady said, the signs are that the regulations would provide for the right to paternity leave only after six months.
The Bill should provide the flexibility to facilitate matters for those households in which, for good reasons, the choice is made for the mother to return to work earlier and the father to take over. At the moment, the impression we get from the Government is that that flexibility would be blocked.
Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)
I am grateful to the hon. Member for Burnley (Kitty Ussher) for tabling the amendment and speaking to it so eloquently. It raises an important issue about the way in which the Bill is designed to operate. It comes back again to flexibility, choice and the fact that each family is different. The hon. Lady herself is a good example of what I am talking about, and having been in a similar position I have every sympathy with her. As Members of Parliament, we are fortunate; although we work very long hours in comparison with the average, we have a bit of flexibility in how we arrange our days and weeks. In our job, it is possible to give birth to a baby, look after it and continue working. I was amazed to find that that was possible. I am sure that the hon. Lady has much more confidence than I, but somehow or other I have managed to muddle my way through and I now have a happy, healthy four-year-old.
I am sure that the hon. Lady will agree that flexibility and choice are vital. As she was explaining why she tabled her amendment and the possibilities that could arise, something occurred to me: what if the mother of a new baby became ill? That is not unusual. Last week, I had a meeting with the Epping Forest mental health trust and we discussed where its resources should be used and so on. I discovered that the incidence of post-natal depression is much higher than anyone imagines.
I am sure that we can all think of cases in which, for some reason or other, mothers simply cannot look after their babies and need help. In such cases, the natural next person to look after the child is its father, so the Bill should make provision for a father to begin looking after a child as soon as it is born. Perhaps the mother will not have gone back to work, but is ill and unable to look after her child—I use post-natal depression only as an example; there are all sorts of ways in which that could happen. That the father is not able to take paternity leave immediately, should that be necessary, simply does not make sense. The hon. Lady’s amendment and the others in this group are therefore worthy of consideration.
I am sure that the Minister will consider the points made in the spirit in which they are meant. In my case, I want to improve the Bill, not change the intention behind it or increase costs and complicate matters for employers, especially small employers. I simply want to give flexibility and choice, so that any family can respond at any time to the circumstances in which it finds itself.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
I appreciate your forbearance, Mr. Bayley. I should acknowledge that the Minister with responsibility for employment relations, consumers and fair markets, who is a good friend, pointed out from a sedentary position that I had not spoken to my amendments in this group. I am grateful for the opportunity to speak briefly to them.
The group of amendments deals with keeping-in-touch days, which are a good part of the Bill. The concept is that during a period of ordinary or additional maternity leave, of the different types of adoption leave or of additional paternity leave, it is perfectly appropriate for an employee to go into work on an agreed basis for a certain number of days to keep in touch with and perhaps liaise with their replacement employee and so forth.
However, there is a concern, expressed by Citizens Advice, that unscrupulous employers might seek to put too much pressure on employees to come back for too many days. The purpose of this group of amendments, which covers all the different sorts of leave in the Bill, is to set a framework within which the discussion between employer and employee can take place, and to limit the number of keeping-in-touch days provided for in the regulations. Within that maximum number, the employer and the employee can negotiate without any risk of the employer seeking to exploit the opportunity to force the employee to work too much during the period of leave. We again seek to set a framework within which the two sides can negotiate a reasonable arrangement. The proposal in no way seeks to undermine the good concept of introducing the right to have keeping-in-touch days.
Julie Morgan (Cardiff North, Labour)
I speak in support of the amendment tabled by my hon. Friend the Member for Burnley, which supports flexibility. Each family should be able to work out what is best for it. It is important that we have flexibility.
I want to make a few points about breastfeeding. My hon. Friend covered the issues that arise with the recommendation that women should breastfeed for six months. I want to use the opportunity to say how difficult it often is for women to breastfeed for six months, even if they do not go back to work. That partly results from the culture of the society in which we live. It is important that we do all we can to support workplace conditions that will encourage and enable breastfeeding.
I was involved in a campaign to improve conditions in this place some years ago. As a result of that, we have some rooms where MPs, other members of staff and the public can go to breastfeed in the Parliament building. However, that is far from adequate in terms of the culture that we would like. In strongly welcoming my hon. Friend’s amendment, I want to make the point that there is an issue to address on breastfeeding, whether women return to work after three months or six months.
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
Good morning, Mr. Bayley. I listened with interest to the high-quality debates on the previous clauses and amendments. I welcome you to the Chair and thank you for chairing our discussions. If you will allow me, I will set out the context for the amendments and the clause.
A great deal of discussion has taken place, as my hon. Friend the Minister with responsibility for women and equality mentioned, about the balance that needs to be struck between the needs of the employees, the needs of the employer and the overall position of the labour market strategy.
The hon. Member for North Norfolk talked about a revolution that had taken place. I agree with him, but it had starting points in many of the acts of this Government in 1997. The British social attitudes survey 2004 has been launched, and it shows people’s attitudes to work and the working environment. In 1994, nearly half—47 per cent.—of employees worked flexibly; in 2004, that had increased to 57 per cent. That is a tremendous increase, which also shows the cultural change that we are trying to address in terms of people’s attitudes to work. That is important because of the demography of the country, the competitive situation that most of our companies are in and the need for them to treat their employees in a proper manner.
I can remember my experience of being a factory worker. I went to start my shift one day having had problems with child care provision, and I arrived at work late. The supervisor said, “I don’t care what happens anywhere outside the workplace, your job is to be in here for eight hours and to work for those eight hours.”
That attitude is what needs to change. The way the Government have gone about that since 1997 is to try to get a consensus about how we deal with it. It is no good the Government coming forward with a long list of aspirations that are meaningless to people in a workplace situation, be that employer or employee. I hope that that sets the context for the remarks that I will made about the amendments.
Mark Prisk (Whip, Whips; Hertford and Stortford, Conservative)
Without wishing to test people’s patience too far, I appreciate that the Minister’s comments were contextual but does he accept—I am sure he will—that the instance to which he referred was an exception? In other words, the vast majority of employers are keen and willing to ensure that if they can accommodate their staff’s family concerns, they do so.
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
I am indeed prepared to do that, and the success of the introduction in 2003 of the right to request flexible working has shown that 90 per cent. of requests are met. However, I gave that example to illustrate the historical way in which some people—not necessarily employers but middle management—addressed some of those issues. We may return to the question of middle managers later in our discussions.
I congratulate my hon. Friend the Member for Burnley on her first amendment. She said that it was a probing amendment, so I hope that she is not defeated on it and will accept the Minister’s wisdom in his response to it. I hope that that will not test her patience too far. I know that she has played a considerable part in the fashioning of the Bill in her previous roles outside Parliament, and I congratulate her on that. I shall also be grateful if the hon. Member for North Norfolk remembers to move his amendment, or he will make a large part of my speech redundant.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
That was self-interest.
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
Self-interest, or rather the power of friendship.
Turning to amendments Nos. 17 and 23, one of the options in the 2003 Green Paper, “Work and Parents: Competitiveness and Choice” was that the second six months of a woman’s maternity leave could be taken by a father. At that time, the proposal did not receive as much support as other options, so was not pursued. My hon. Friend the Member for Burnley said that whether the leave could be shared was considered. When we looked at extending maternity pay, we returned to the idea, as we felt that its time had come. The consultation paper, “Work and Families: Choice and Flexibility”, published in February this year, asked when the earliest point should be for a mother to transfer her leave and pay entitlement to the father. We were open minded about the start date, so we consulted on the three options: six weeks, three months, and six months. The overwhelming majority of those who responded said that the first six months of the mother’s maternity leave period should be reserved for the mother.
I shall quote one of the many responses that we received on that point:
“We recommend the implementation of option 2 (transfer of leave and pay after six months following the start of maternity leave) because paid maternity leave was extended to six months just two years ago, and needs time to bed in for employers and employees. However, the Equal Opportunities Commission proposes that the option to transfer maternity leave before six months could be reviewed at a future date, in the light of experience of managing shared parental leave.”
The CBI members believe that
“mothers should be able to transfer a proportion of their leave and pay six months after her maternity leave has started.”
As hon. Members are aware, since publishing the consultation document in February 2005, the Government have decided to offer a period of additional paternity leave to fathers, rather than transferring maternity leave. However, the question about the earliest date at which the father can start his leave remains the same. If women were able to return to work at any point in their maternity leave period, allowing fathers to take up additional paternity leave at any time could lead to women feeling under pressure to return at an earlier point than they may actually wish. That may give rise to health issues and undermine the women’s ability to continue to breastfeed if she so wished.
I take the point made by my hon. Friend the Member for Cardiff, North (Julie Morgan), about the guidance of the World Health Organisation on that—although it is guidance, not law. I refrain from getting involved in further discussion on that issue, to the extent that that advice and the need to consider six months was important to us.
Introducing the possibility of mothers returning to work at an earlier point to allow for fathers to take additional paternity leave could mean a greater risk of women changing their minds, which would cause disruption to her employer and possibly the father’s employer. There would be a risk that if her early return to employment did not work, she may leave the employment and possibly be absent from the work force for a longer period of time. We think that the risk of that happening is greater if the woman returns after a short period of leave. Business has raised concerns about uncertainty attached to maternity leave, and the disruption caused by losing a valuable member of staff.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
One of the contributions to the consultation exercise that the Minister referred to indicated support for a six-month period but also said that the Government should consider greater flexibility later on in the light of experience. Is that what they intend to do?
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
I am grateful to the hon. Gentleman for raising that point. As I said in the contextual part of my speech, the Government have tried to set the agenda—to prove that something works and then move on, or to reflect about the success of a particular aspect. Yes, it would always be our position to reflect on how something is working. The EOC submission was that the provision has been in place for only a short time, and that we should let it bed in and consider it later. We are happy to do that; that is how successful policy is developed.
In our conversations with business groups on the question of fixing the earliest point at which additional paternity leave can be taken, it was recognised that there could be increased pressure on business to provide occupational top-up pay to fathers, as many businesses already offer occupational top-ups to mothers on maternity leave in the first six months. Business groups felt that if the father took additional paternity leave in the second six months, that pressure would be somewhat dissipated. If the start point for taking additional paternity leave was not fixed, the pressure placed on the mother to return to work if the father had enhanced occupational top-ups would also be greater. We wish to avoid pressuring the mother to return to work.
We have listened to the comments received in response to the consultation, and we include in subsection (5)(a) of proposed section 80AA to the Employment Rights Act 1996 the power to allow us to fix a point from which the additional paternity leave can be taken. The intention is to reserve the first six months of a mother’s maternity leave. We intend that point to be prescribed in regulations, and we suggest in our consultation on the detail of the scheme that we are due to launch in the new year that it should be 20 weeks from the birth of the child. That reflects the fact that the average mother begins maternity leave six weeks before the birth; the provision would provide the closest proxy to reserving the first six months of a mother’s maternity leave.
The hon. Member for Epping Forest spoke about the need for about flexibility in exceptional circumstances, but she will be aware that there already exists two weeks paternity leave, with the opportunity for a further four weeks of unpaid leave. The father also has the right to request flexible working. Other legislative provisions support exceptional circumstances.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
Does the Minister acknowledge that the two weeks statutory paternity leave have to be taken in the first eight weeks after the birth? There is not much flexibility in the first six months.
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
I recognise that, but I refer again to what I said about balance and getting employers and employees on side. There are provisions for exceptional circumstances in the first two weeks, and there are opportunities for additional leave. We are talking about the minimum standards to be laid down in legislation.
I spoke of the survey showing that attitudes are changing. Many businesses see the business case for looking after their employees. They are developing positive policies that are way in excess of the statutory provisions being laid down by the Government. That is to be welcomed. In the context of the labour market strategy, the Government are concerned about discrimination against women, and particularly against those of child-bearing years. It is illegal, but we know that it happens, and we must try to ensure that all businesses understand the worth that women can contribute to their work force. Indeed, many good employers already see that.
Mark Prisk (Whip, Whips; Hertford and Stortford, Conservative)
I am interested in the Minister’s remarks. What lessons does he take from the situation in Sweden, where women are finding that oppressive and restrictive legislation has made them less desirable as employees? They therefore seek more flexibility. That may mirror some of the points to which the amendment refers.
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
There is good and bad in each member state’s employment legislation. We want Europe to pick the best legislation that supports the development and growth of jobs and that helps social protection and welfare. There is a balance to be struck. Labour market flexibility and the demographic changes faced by the UK are important, and businesses need to know that they have to attract good employees. Women can and do play an important part in our economic life. It is important that employers realise that, and they must understand that they need to support and develop the aspirations of women not only in the working environment but in the family environment.
I turn to the amendments tabled by the hon. Member for North Norfolk. I am grateful to the hon. Gentleman, as they give us the opportunity to discuss the introduction of keeping-in-touch stays and, in particular, the principle that the number of such days should be limited. The Government’s working families consultation considered how we could enable good communication to take place between women and employers during maternity leave.
Following the consultation, we have committed to clarifying in law the principle that the employer will be able to make reasonable contact with the woman during her maternity leave. The reasonable contact provisions will be set out in regulations, on which we will consult in the new year. The Bill also provides enabling powers for us to introduce keeping-in-touch days. Keeping-in-touch days will enable women to carry out some work activity during their maternity leave without bringing it to an end. The same principles apply to adoption leave and to additional paternity leave. An adopter may take up to one year’s leave when a child is placed with them, so the same difficulties with regard to employers and employees losing touch could apply. The Bill allows us to provide that a father may take up to six months’ additional paternity leave and that, in the unfortunate circumstances in which a child’s mother dies, he may take up to one year’s additional paternity leave. Therefore, working mothers, fathers and adopters and their employers will all benefit from the introduction of keeping-in-touch days.
We will consult on the detail of the scheme when we publish regulations in the new year. Parallel provisions will ensure that an employee does not lose any statutory maternity, adoption or additional paternity pay or maternity allowance by taking advantage of keeping-in-touch days. Keeping-in-touch days will help working parents and employers to stay in touch during maternity, adoption and additional paternity leave, and will enable employees to carry out some work activity. That might be actual work—whatever the employee would have been doing had he or she been working as usual rather than being on leave—or an opportunity to go into work for activities such as appraisals and team meetings.
Enabling that contact to take place will strengthen links between working parents and employers during maternity, adoption or additional paternity leave, and will help parents to keep up with developments at work and update their skills. We expect that that will ease the transition back to work after leave, enabling parents to get back up to speed more quickly after their absence. Such a provision should ease any concern that employers and fathers might have about what impact the new right to additional paternity leave will have on them.
The hon. Gentleman’s amendments would set out in the Bill a requirement to specify the number of keeping-in-touch days that would apply during ordinary and additional maternity leave, ordinary and additional adoption leave and additional paternity leave. Our intention has always been that the number of keeping-in-touch days should be limited. Keeping-in-touch days are intended to enable employees and employers to keep in touch. We do not intend them to facilitate a kind of part-time leave so, by their nature, they must be limited. Therefore, although I welcome the hon. Gentleman’s amendments—they show that we are in agreement on the matter—and am grateful that we agree in principle, I do not believe that the amendments are necessary. The Bill provides powers for us to specify the circumstances in which an employee may work for an employer during maternity, adoption or additional paternity leave. That is sufficient to enable us to limit the number of days on which an employee may work. Accordingly, I ask the hon. Gentleman not to press his amendment.
Kitty Ussher (Burnley, Labour)
I just wanted to put on record my gratitude to my hon. Friend for having clarified the situation. I suspect that my amendment is slightly ahead of its time and I am grateful for his commitment to consider the issue again in future.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
In terms of the hon. Lady’s amendment, the Minister indicated in response to an intervention from me that he was willing to consider the matter again. I certainly welcome that; it seems sensible to adopt an incremental approach. So far as my amendments are concerned, I am pleased that the Government accept them in principle, and am not entirely surprised that he has decided that they are unnecessary. We will have to trust the Government to implement them by way of regulations when the time comes. The important principle is that a framework should be set within which keeping-in-touch days will operate.
I should say that, from my experience in my previous life as an employment law solicitor, there has always been a great fear on the part of employers that any contact with the employee during a period of maternity leave will get employers into trouble, and that it is not appropriate to talk to the woman on maternity leave. That is crazy; it is not in the woman’s or the employer’s interests. There ought to be reasonable contact. The concept of keeping-in-touch days enshrines that principle. It is perfectly sensible for the employee to return to work for a defined and limited number of days to maintain that contact, something that I am sure many employees would very much welcome. As the Minister said, that would help to facilitate, in due course, the return to work.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
I beg to move amendment No. 1, in clause 3, page 3, line 5, at end add—
‘(10)Regulations under this section shall be made by statutory instrument.
(11)No statutory instrument containing regulations under this section may be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.
Hugh Bayley (City of York, Labour)
With this it will be convenient to discuss the following amendments: No. 24, in clause 3, page 3, line 5, at end add—
‘(10)No regulations made under this section may be made unless a draft of the intrument has been laid before, and approved by a resolution of, each House of Parliament.’.
No. 2, in clause 4, page 4, line 23, at end add—
‘(11)Regulations under this section shall be made by statutory instrument.
(12)No statutory instrument containing regulations under this section may be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.
No. 25, in clause 4, page 4, line 23, at end add—
‘(11)No regulations made under this section may be made unless a draft of the intrument has been laid before, and approved by a resolution of, each House of Parliament.’.
No. 3, in clause 6, page 6, line 3, at end add—
‘(5)Regulations under this section shall be made by statutory instrument.
(6)No statutory instrument containing regulations under this section may be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.
No. 4, in clause 7, page 7, line 9, at end add—
‘(6)Regulations under this section shall be made by statutory instrument.
(7)No statutory instrument containing regulations under this section may be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.
No. 5, in clause 8, page 8, line 4, at end add—
‘(4)Regulations under this section shall be made by statutory instrument.
(5)No statutory instrument containing regulations under this section may be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.
No. 6, in clause 9, page 8, line 22, at end add—
‘(4)Regulations under this section shall be made by statutory instrument.
(5)No statutory instrument containing regulations under this section may be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.
No. 7, in clause 10, page 9, line 37, at end add—
‘(11)Regulations under this section shall be made by statutory instrument.
(12)No statutory instrument containing regulations under this section may be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.
No. 26, in clause 12, page 10, line 29, at end add—
‘(11)No regulations made under this section may be made unless a draft of the intrument has been laid before, and approved by a resolution of, each House of Parliament.’.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
I will keep my remarks brief, and deal with all the amendments in my name together. In my opening remarks—when you correctly stopped me developing this point, Mr. Bayley—I sought to make a point raised by the TUC in its commentary on the Bill. It said that the Bill leaves an awful lot to regulations. There are dangers in that. If one were to read the Bill as it stands without any explanatory notes, one would be left largely in the dark about an awful lot of the details of what will finally emerge by way of regulations. Also, that approach leaves open the question of when the regulations will be tabled for consideration, and what the time scale for the introduction of those rights will be. I stick by the principle that, by and large, it is better for more to be on the face of the Bill, so that there can be proper democratic debate on it.
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
I understand the point that the hon. Gentleman is making, and I shall have more time to go through it in detail in my response, but if we put everything in the Bill, that cuts out the flexibility for negotiations and consultation. Surely the aim is to get our principles and objectives—what we are trying to achieve—in the Bill, and then to use the regulations for further consultation?
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
I am grateful to the Minister for that intervention, and I take that point, to some degree. None the less, it is possible to have consultation before the Bill is presented to Parliament; indeed, there has been some. I acknowledge that there is always a balance to be struck. Any Government will use the mechanism of regulation to fill in the details, and I accept that there is a place for that; it is a question of degree. My feeling is that the Bill goes a bit too far in the direction of relying on regulations to implement the detail of the provisions. However, that is the way that things have been done, and I accept that.
At the very least, it ought to be possible for Parliament to debate those regulations—the culmination, as the Minister says, of that further consultation process—once they have been prepared. If the process is simply one of consultation followed by statutory instruments being introduced without opportunity for debate in Parliament, that would be a bad thing. As a package, the amendments propose the affirmative process in relation to the set of clauses that provide for regulations to be introduced to flesh out the objectives of the clauses.
Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)
My amendments Nos. 24 to 26 have a similar effect to those of the hon. Gentleman. This is getting very unusual.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
It is a bit scary.
Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)
I agree with the hon. Gentleman once again. I am sure that we will find something on which we can heartily disagree when we come to the next part of the Bill.
I am concerned about amendments. Again and again in recent weeks the Government have presented Bills that have gone into Committee only eight days after Second Reading, so that only one weekend elapses, whereas until recently the convention generally followed by every Government was that there should be two clear weekends between Second Reading and Committee. That gave everyone concerned the time properly to examine the Bill, consult outside bodies and table amendments, and it gave time for the Government to produce the regulations on which the measure would depend. On Second Reading I made that point, and so did my hon. Friend the Member for Mid-Worcestershire (Peter Luff), who asked the Secretary of State whether he intended to make the draft regulations available to the Committee before it finished its work. The Secretary of State said:
“We can try. The timetable is a little tight, but I hope that we can publish those regulations before the Committee rises.”
It is entirely within the Government’s power to change the timetable. There is no reason why we should be considering the Bill in Committee today rather than next Tuesday or as soon as we come back after the Christmas recess in January. We all welcome the Bill and want it to be made law as soon as possible, but it is not an emergency Bill. It does not make very much difference whether it becomes law in spring or early summer. A few weeks do not matter, but what matters for the proper working of the democratic process is that Members of this House and, indeed, another place, should be able properly to consider what the Government intend to do.
Once again, as with other Bills in recent weeks, the regulations have not been published. We are asked this morning to consider clauses 3 to 10, all of which are dependent on regulations, but we do not even have an undertaking from the Government that those regulations will come before the House by the affirmative rather than the negative procedure. It is quite improper that we should reach this point in the Bill’s consideration without knowing what the Government intend. What do they have to hide by not producing the regulations? We are all in favour of the intent of the Bill, but it is our duty, as representatives of our constituents, to hold the Government to account for the exact provisions that they propose to implement. We cannot do that because we do not know what they are. Much of our debate this morning would have been much better informed—and it still would be, in the remainder of the Bill’s time in Committee—if we had the regulations.
It is hard to understand how the Secretary of State could seriously say,
“We can try. The timetable is a little tight”,
adding
“but I hope that we can publish those regulations before the Committee rises. That is probably a heroic ambition, but I hope that we can publish the regulations while the Bill completes its remaining stages and certainly by the time that it returns from the Lords.”
It is also quite improper that we should expect our colleagues in another place to give consideration to the detail of a Bill when Members of this House cannot do so. I am a strong supporter of the work done by the second Chamber, but it is supposed to be a revising Chamber. How can it revise when we have not first considered the matters that it will be expected to deal with?
It is impossible to understand how the Secretary of State can stand up in the House with a straight face and say that he would like the Committee to agree in principle to regulations that the Government have not yet brought forward—and can expect the Minister this morning to do the same. The Government have known for many months that they would introduce the Bill. It has only 20 clauses. The issue is not complicated, except in the detail of its administration.
I referred earlier to the way in which tax credits have worked—or rather have not worked. One of the reasons why the tax credit system does not work properly is that the detail of its administration is neither thorough nor good. We all know from cases in our constituencies that the tax credit system does not work. I accept that the intention behind the provisions is good, but I do not want them not to work just because their detail has not been considered properly. However, we as a Committee cannot consider the detail when it is not laid before us. I feel strongly about the matter and I hope that the Minister will take it up.
On Second Reading, the Secretary of State said:
“That is probably a heroic ambition”.—[Official Report, 5 December 2005; Vol. 440, c. 650.]
If it were his ambition to bring forth the regulations at the proper time, it is perfectly within his power as Secretary of State to achieve that ambition. I admire his ambition, but I deplore the fact that he has not done so, given that he could easily have achieved it if he had wanted to. All that needs to happen is for further consideration of the Bill to be postponed until such time as we have the regulations before us. There is no reason why that cannot happen.
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
I feel that I have been told off by the hon. Lady. However, she has the whole situation wrong. She does not understand how parliamentary procedure operates. If the Government had been operating out of order, Mr. Bayley, you would have stopped the discussions.
It may be useful if I explain the process. The Committee must remember that the Government want change and want it to happen in a particular way. They are using all the better regulation aspects that they can in introducing legislation. The format that is followed is: first the Green Paper, then the White Paper, and then the Bill and the regulations that flow from it. When it is possible to put the draft regulations before hon. Members when they discuss matters in Committee, the Government try to do that. This morning’s example of the hon. Lady and the hon. Member for North Norfolk using probing amendments to persuade the Government to change their mind would be lost if the Government had said in Committee, “This is all that we will do. We will not change our view.”
When we discuss clauses, we examine the objectives and the principles behind what we are trying to achieve and, through the regulatory process and SIs, apply those regulations by using the affirmative or the negative procedure. I shall come on to what we shall do under the Bill later. We try to stick to a consultation period of about 12 weeks, so that we can give stakeholders the opportunity to consider what the Government intend to do and then try to make sure that the regulations fit that intention. As we know, regulations can be changed without the need for further primary legislation, so it is useful to have regulations that flow from primary measures. That procedure works.
As for the other place, it introduces Bills. It introduced the Company Law Reform Bill, which will come to us in the new year. It is not unusual for the other place to deal with issues that have not been dealt with in this place.
Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)
I hear what the Minister says. His explanation was clear. In that case, why did the Secretary of State say that he had a heroic ambition to bring the regulations before us in Committee?
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
The Secretary of State is a hard taskmaster and is optimistic about what can be achieved within a framework. He has asked us to speed the process up as much as we can.
The Bill is taking broad powers to provide eligible fathers with an additional period of paternity leave for a maximum of 26 weeks, some of which will be paid if certain criteria are met. At present in the Bill, for a father, or partner of an adopter, to receive additional statutory paternity pay, he must have satisfied certain criteria relating to length of service and earnings.
In addition, the child’s mother or adopter must have returned to work, have been entitled to statutory maternity pay, maternity allowance or statutory adoption pay, and have some of that entitlement remaining at the time of their return to work. As we have said, the detail will be provided in the accompanying regulations and we shall consult on the outstanding details of the policy early in the new year.
As additional paternity leave and pay is a new concept, we want to ensure that we alleviate any concerns and deliver a straightforward scheme that minimises the burdens on business, while offering more choice and flexibility to parents and, ultimately, a scheme that works.
We agree with hon. Members that the House should have the opportunity to consider the detail in the additional paternity leave and pay regulations. For that reason, we have made those provisions subject to the affirmative procedure. Paragraph 22 of schedule 1 amends section 176 of the Social Security Contributions and Benefits Act 1992 to provide that regulations made under new sections 171ZEA to 171ZEE of that Act, relating to additional statutory paternity pay, are to be made by the affirmative procedure. That covers regulations made under the powers set out in clauses 6, 7, 8, 9 and 10. Paragraph 43 amends section 236 of the Employment Rights Act 1996 to provide that regulations made under new sections 80AA and 80BB of that Act are to be made by the affirmative procedure. That covers regulations made under powers conferred by clauses 3 and 4 and also covers clause 5, although amendments to that clause have not been tabled.
On clause 12, many hon. Members will know that legislation on flexible working was fully debated as part of the passage of the Employment Act 2002. At that time, it was agreed that the procedural requirements would be subject to the affirmative procedure, while the eligibility, complaints and remedies would be subject to negative procedure. In consequence of this Bill, we intend only to amend the eligibility regulations. It is therefore appropriate that such amendments should be made by negative procedure.
I fully recognise the spirit behind the amendment and the Committee’s desire to discuss and help shape the regulations. Our record in developing the right to request flexible working, from the original taskforce to the recent work and families consultation, shows our commitment to full consultation and debate. We always consider the needs and views of all interested parties, whether they be unions, employers, employees, parents’ groups or carers’ groups. Of course, we welcome and encourage the views of Members of Parliament.
The changes to the regulations will be subject to a full and extensive consultation, in which I hope everyone here will participate. I hope to publish the consultation early in the new year and we shall discuss it extensively with all the interested parties: businesses—both large and small—and their representatives, and carers and carers’ groups.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
I am grateful to the Minister for confirming that the consultation will start in the new year. What is the time scale for completing that and for tabling the draft regulations?
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
As I said, the consultation usually takes about 12 weeks; that is the recognised procedure that we try to adopt, and we shall try to meet that timetable. Then we shall need time to consider the consultation; we shall then bring forward the regulations. We could be talking about 16 or 17 weeks for the regulations to be applied.
In light of my explanations about the need to have discussions, I hope that the hon. Member for North Norfolk feels that I have set out the position on the procedures that will be used and I ask him to withdraw his amendment.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
I am grateful to the Minister for clearing up the confusion caused on Second Reading, when we got different answers at different times from the Secretary of State and the Minister.
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
May I point out that I did not answer when the hon. Gentleman asked me the question?
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
It is good of the Minister to admit his failure to answer my question on Second Reading. None the less, we ended that debate in some confusion about the process. The Minister has cleared that up and I beg to ask leave to withdraw the amendment.
Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)
Can the Minister confirm that the regulations will be put before the House using the affirmative resolution procedure, so that there will be an opportunity for us to consider them?
Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations and Consumer Affairs), Department of Trade and Industry; Bradford South, Labour)
I am grateful to have another opportunity to explain the position. I do not think that there was any confusion on Second Reading. The Secretary of State outlined the procedures to which the affirmative and negative procedures will apply. I hope that when Opposition Members read their Hansard they will know which procedures apply to which clauses.
Norman Lamb (Shadow Secretary of State for Trade & Industry, Trade & Industry; North Norfolk, Liberal Democrat)
I beg to ask leave to withdraw the amendment.