Clause 1 - Payment of maternity allowance: Ministerial office

Part of Ministerial and other Maternal Allowances Bill – in the House of Commons at 4:30 pm on 11th February 2021.

Alert me about debates like this

Photo of Penny Mordaunt Penny Mordaunt Paymaster General 4:30 pm, 11th February 2021

It is not part of the scope of this Bill, but the Prime Minister has said in his written ministerial statement that it is one of the issues he wants this future piece of work to look at. I think it is fantastic that we have more women in the House of Lords, and we want those women to be able to hold ministerial office. If they need to take maternity leave, they should be able to do so.

Subsection (3) of clause 1 deals specifically with the condition relating to pregnancy or maternity that must be satisfied for a person to be appointed as the Minister on leave, namely that they are at the time of designation either pregnant and within 12 weeks of the expected due date of the child, or have given birth to a child in the preceding four weeks. These conditions are designed to take account of the wide range of possible scenarios that can occur in relation to childbirth, including where the child is born prematurely or after their expected due date. These conditions are there to ensure that no Minister can lose out on benefiting from the arrangements set out in the Bill on account of the particular facts of their pregnancy and childbirth, and are partly based on the existing statutory framework relating to maternity leave.

Subsection (4) also makes it clear that a person can be designated as a Minister on leave, and benefit from the provisions in the Bill, even in the terrible situation where the child is stillborn. I thank my hon. Friend Cherilyn Mackrory for raising this issue, and the work that she has done on it. In common with maternity legislation as it applies elsewhere, such a tragic event cannot be viewed as a reason to remove the financial security provided by provisions relating to maternity leave.

Subsection (6) sets out how the designation of a Minister as a Minister on leave can be brought to an end. The Bill envisages two scenarios under which the designation can be terminated—the designation terminates automatically six months after the appointment, or earlier, at the point at which the Minister on leave ceases to hold that office. In the latter situation, the designation can be brought to an end by the person in question being appointed to a different ministerial office before the end of the six-month period. That includes situations in which the person is reappointed to their previous role in Government, or to a different role altogether.

Clause 1 outlines the role of a Minister on leave. These arrangements are vital in ensuring that Ministers can take paid maternity leave by providing the mechanism for designations, which the Prime Minister can exercise in respect of Ministers that he has appointed under the royal prerogative. Without these mechanisms, the primary purpose of the Bill would be frustrated, and I therefore strongly and wholeheartedly recommend to the House that clause 1 stand part of the Bill.

I now turn to the amendments tabled to the clause. Amendment 3 stands in the name of Kirsten Oswald. I thank her for her commitment and strong advocacy on this issue, and for engaging with me and officials over the past few days. The hon. Member has suggested through her proposed amendments that maternity leave should be mandatory for any new mothers in the Government’s ranks, and I certainly agree that we must do all we can to ensure that new mothers feel able to access this new provision. However, to make it mandatory would cut across the prerogative of making ministerial appointments, as we have discussed, and further would serve to remove the mother’s choice about taking leave. The Bill as it stands has been mindful of the constitutional position of Ministers: they are office holders, appointed by the sovereign on the advice of the Prime Minister of the day, under the powers of the royal prerogative. The Bill cannot, and does not, give a right on the part of the Minister wishing to take maternity leave to be appointed as a Minister on leave. Any appointment to such a role must remain a prerogative power on advice of the Prime Minister. Civil servants have taken great glee in telling me over the last few days that Ministers have no rights. The amendment would serve not to only undermine the role of the prerogative power but to constrain a ministerial mother’s ability to choose what leave she takes following the birth of a child. The current provisions have been drafted to preserve both. The Government respectfully ask that it is withdrawn.

I turn to the amendments tabled by my hon. Friend Jackie Doyle-Price, beginning with amendment 15. I fully understand my hon. Friend’s concern about the terminology in the Bill, and I am grateful for the practical and constructive suggestion that she has made in the amendment. One of the primary concerns of those drafting legislation is to achieve clarity, so that there is absolutely no ambiguity about what the law does or does not require or how it operates in any particular situation.

As I did not have time to do so on Second Reading, I would like to address the points raised by Joanna Cherry and Tonia Antoniazzi. The hon. and learned Member for Edinburgh South West and my hon. Friend the Member for Thurrock described very clearly how women and others are feeling about the word “woman” and other words being deleted from our documents and our public life, with descriptions of what it is to be a woman. I am very sensitive to that.

I note that exactly the same Members who asked questions and raised concerns about those issues have also raised concerns about the provision in the Bill for a trans man to make use of the provisions. It is not the case that this is a trade-off between one or the other, and it is a mistake to frame the concerns that have been raised around language in that way. It is about respecting women and women’s rights, and that is completely compatible with respecting trans rights too. I always think that if you want to protect your own rights, you should protect someone else’s, and that will help.

On the specific point that the hon. and learned Member for Edinburgh South West raised with regard to the Equality Act 2010, I have tested that with officials and it will not work for this legislation, but I have taken into consideration the suggestions that she and my hon. Friend the Member for Thurrock made.

The hon. Member for Gower listed some Acts that she says have used the word “woman”. They predate the convention that we are now operating under, which was introduced by Jack Straw in 2007. The intention of the guidance on using gender-neutral language was to avoid demeaning women by implying that only men could undertake certain roles, and that drafting convention has remained. It is not the case that we could legally and correctly use the word “woman” in this piece of legislation, nor could we do so with the term “Minister”, because the designation of a person happens after they have ceased to hold their existing ministerial office.

Although we have been able to put in the legislation the words for the Opposition postholder, we have not been able to use the term “Minister” in the legislation. However, we can put the word “Minister” into the explanatory notes accompanying the Bill. Although that is still gender-neutral language, it is a much less jarring term than “person”, and I hope that in doing so, we can address the very legitimate concerns that have been raised about this, while ensuring that the Bill is legally sound and not subject to legal challenge and is in line with the drafting conventions that we subscribe to.

I am grateful to my hon. Friend the Member for Thurrock for the constructive suggestion that she has made in amendments 16 and 17, but I do not think that the clarity of the Bill would be aided by their inclusion. The amendments in question offer only a partial alteration of the Bill’s terminology, rather than a wholesale one. I do not believe that her amendments would have achieved their aim. They would instead have introduced unnecessary uncertainty and inconsistency into the Bill. The use of the terminology in the Bill is now common practice. The current drafting of the legislation is legally accurate, and it covers all women who are pregnant or who give birth. I respectfully ask my hon. Friend not to press her amendments.

On amendments 18 and 19, which stand in the name of my right hon. Friend Sir John Hayes, let me say that it is not new practice to use gender-neutral language when drafting legislation. I have with me today several Bills relating to women and women’s issues that have used gender-neutral language. In general terms, that is to correct the tendency to use particular pronouns that appear to assume that someone of a particular gender would be doing a particular job or performing a particular role.

Legislation is now typically drafted without reference to gender, and I fully recognise that certain phrases can jar in the public consciousness and leave us open to legal challenge. As I have said, this is not a new convention and it has the specific example of the clauses before this House today. It is not a new approach and there are plenty of examples of other Acts of Parliament and statutory instruments since that change in 2007 that use the word “person”, including in the context of maternity. Section 3 of the Pensions Act 2014 and section 30 of the Civil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019 are just two examples. I do not think that the clarity of the Bill would be aided by the amendments, which, taken together with the others standing in my right hon. Friend’s name, would offer only partial alteration of the Bill’s terminology. The current drafting is legally accurate and clearly covers all women who are pregnant or give birth. I appreciate the strength of feeling he has on this.

Finally, in respect of clause 1, amendment 4, which stands in the name of the hon. Member for East Renfrewshire, would have the effect of enabling Ministers to take up to a year of maternity leave on full pay. As I have discussed, we are pegged to the civil service scheme, so I ask her not to press her amendment, and to bear in mind the context of the Bill.

Let me quickly address clause 2, which sets out the rate of ministerial maternity allowance and how that should be calculated, and what should happen with respect to the allowance in the event of the period of maternity leave coming to an end before the six-month period has elapsed. Subsection (2) merely confirms that if a Minister was unpaid in their role before going on maternity leave, no maternity allowance is payable. Obviously, it would not make sense that someone who did not receive a salary should then receive a payment. In such circumstances an unpaid Minister may nevertheless be designated a “Minister on leave” so as to remain a member of this Government while on leave, while not counting towards the headcount limit of 95 Ministers from the House of Commons, as prescribed by the House of Commons Disqualification Act 1975. While the Bill provides for a full six-month period of leave should the new or expectant mother wish to take it, the Bill also provides for flexibility for a shorter period of time.

I turn to amendments 5 to 9, which stand in the name of the hon. Member for East Renfrewshire. As I mentioned in respect of clause 1, I commend her advocacy. Her amendments would have the effect of enabling Ministers to take up to a year of maternity leave on full pay. She knows that that is significantly more generous than the maternity entitlements enjoyed by the vast majority of women in the UK.

Let me turn to amendment 1 in the name of the hon. Member for Walthamstow. If a Minister on leave were to cease to hold the office before the six months had lapsed, clause 2(3) already provides that she would receive the remainder of her allowance as a lump sum. The only circumstances in which that would not happen is if the Minister on leave were appointed to a new ministerial office, in which case she would once again receive a ministerial salary; or, in the tragic event that she died, it would be the case that financial assistance for her dependants would be provided through the ministerial pension scheme.

Let me turn to clause 3. Bear with me; I am trying to respond to all the amendments. Amendment 10—

Debate interrupted (Order, this day).

The Chair put forthwith the Question already proposed from the Chair (Order, this day), That the amendment be made.

Question negatived.