Parental Bereavement (Leave and Pay) Bill: Consideration Stage

Executive Committee Business – in the Northern Ireland Assembly at 12:30 pm on 30 November 2021.

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Photo of Roy Beggs Roy Beggs UUP 12:30, 30 November 2021

I call the Minister for the Economy, Mr Gordon Lyons, to move the Consideration Stage of the Parental Bereavement (Leave and Pay) Bill.

Moved. — [Mr Lyons (The Minister for the Economy).]

Photo of Roy Beggs Roy Beggs UUP

Members may wish to note that a section 63 recommendation was affixed to the front cover of the Bill in error, and should be disregarded.

Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for the debate in the provisional grouping of amendments selected list. There are two groups of amendments, and we will debate the amendments in each group in turn.

The first debate will be on amendment No 1 and amendment Nos 3 to 10, which deal with the provision for miscarriage leave and pay. The second debate will be on amendment No 2, which deals with week-1 rights.

I remind Members who intend to speak during the debates on the two groups of amendments that they should address all the amendments in each group on which they wish to comment. Once the debate on each group is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Question on stand part will be taken at appropriate points in the Bill. If that is clear, we will proceed.

Clause 1 (Parental bereavement leave)

Photo of Roy Beggs Roy Beggs UUP

We now come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 3 to 10. Within this group, amendment No 3 is consequential to amendment No 1. Amendment No 6 is consequential to amendment Nos 1 and 3. Amendment No 7 is consequential to amendment No 4, amendment No 8 is consequential to amendment No 3, amendment No 9 is consequential to amendment No 1 and amendment No 10 is consequential to amendment No 4. Members may also wish to note that amendment No 5 is a paving amendment to amendment No 6.

I call the Chairperson of the Committee for the Economy, Dr Caoimhe Archibald, to move amendment No 1 and address the other amendments in the group.

Photo of Caoimhe Archibald Caoimhe Archibald Sinn Féin

I beg to move amendment No 1:

In page 3, line 42, at end insert -

<BR/>

&quot;Application in relation to miscarriage


112EF. The Department must by regulations provide that regulations under this Chapter apply in relation to a person who has experienced a miscarriage as they apply in relation to a bereaved parent, with such modifications, if any, as specified in regulations.&quot;

The following amendments stood on the Marshalled List:

No 3: In clause 2, page 10, line 17, at end insert -



&quot;Application in relation to miscarriage


167ZZ19. The Department must by regulations provide that this Part and regulations under it apply in relation to a person who has experienced a miscarriage as they apply in relation to a bereaved parent as set out in section 167ZZ9 (Entitlement) with such modifications, if any, as specified in regulations.&quot; — [Dr Archibald.]

No 4: After clause 3 insert -



&quot;Consultation on leave and pay in cases of miscarriage


3A.—(1) The Department for the Economy must consult such persons as it considers appropriate as to whether the entitlements created by this Act to—


(a) leave; and


(b) pay; which are conferred where a child has died should also be conferred where a person has had a miscarriage.


(2) The consultation may include, in particular, consultation as to—


(a) whether the entitlements should be conferred in all cases where a person has had a miscarriage, or only in some cases;


(b) whether the entitlements to be conferred in such cases should be the same as, or different from, the entitlements that are conferred where a child has died;


(c) whether anyone other than the person who has had the miscarriage should also to be entitled to leave or pay;


(d) whether different entitlements should be conferred in different cases of miscarriage.


(3) The Department must prepare a report on the consultation and—


(a) lay the report before the Assembly, and


(b) publish it in such manner as the Department considers appropriate.


(4) The Department must lay and publish the report under subsection (3) before the end of the period of 2 years beginning with the date on which the first regulations made under the provisions inserted by sections 1 and 2 come into operation.&quot; — [Mr Lyons (The Minister for the Economy).]

No 5: In clause 4, page 10, line 24, after &quot;appoint&quot; insert -



&quot;, but this is subject to subsection (2A)&quot;. — [Dr Archibald (The Chairperson of the Committee for the Economy).]

No 6: In clause 4, page 10, line 27, at end insert -



&quot;(2A) Regulations under Chapter 4 of the Employment Rights (Northern Ireland) Order 1996 and regulations under Part 12ZD of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (including regulations under Article 112EF and regulations under section 167ZZ19) must come into operation within 12 months of Royal Assent.&quot; — [Dr Archibald (The Chairperson of the Committee for the Economy).]

No 7: In clause 4, page 10, line 27, at end insert -



&quot;(2A) Section 3A comes into operation on the day after the day on which this Act receives Royal Assent.&quot; — [Mr Lyons (The Minister for the Economy).]

No 8: In schedule 1, page 13, line 16, at end insert -



&quot;8A. Regulations made under section 167ZZ19 must not be made unless a draft has been laid before, and approved by a resolution of, the Assembly.&quot; — [Dr Archibald (The Chairperson of the Committee for the Economy).]

No 9: In schedule 1, page 15, line 2, at end insert -



&quot;24A. In Article 251(5A) (regulations that are subject to approval by the Assembly), after &#x0027;107AB(4),&#x0027; insert &#x0027;112EF&#x0027;.&quot; — [Dr Archibald (The Chairperson of the Committee for the Economy).]

No 10: In the long title, at end insert -



&quot;; and to make provision for consultation about leave and pay for persons who have had a miscarriage.&quot; — [Mr Lyons (The Minister for the Economy).]

Photo of Caoimhe Archibald Caoimhe Archibald Sinn Féin

Today's Consideration Stage follows engaged and in-depth scrutiny of the Bill by the Committee, and I will touch briefly on the Committee's analysis of the Bill in providing background to the Committee's amendments in this group. I thank the Bill Clerks for their help and support to the Committee. Their assistance, and that of our Committee team, was invaluable to members.

The Committee heard evidence from a range of stakeholders and carried out a very detailed online survey, to which it received 382 responses from organisations and representative bodies, as well as a significant number from individuals with personal experience of bereavement. I put on record the Committee's appreciation of the evidence that it received from individuals who have been impacted by the loss of a child. That evidence has been vital in informing the Committee and enabling us to develop the important amendments that are before the House today. The Committee's primary aim has been to ensure that the legislation is fit for purpose and that the opportunity is not missed, through the Bill, to extend these protections to as many people as possible who find themselves in these most difficult circumstances.

The Committee explored a wide range of issues raised in the written and oral evidence with Department for the Economy officials through oral briefings and written responses. The Committee deliberated on the provisions of the Bill and the proposed amendments and concluded with its formal clause-by-clause consideration on 8 November 2021. There was overwhelming support for the provisions in the Bill, and responses were positive in relation to the introduction of a legal entitlement to employee parental leave and pay, with the expectation that this would be a minimum provision in ensuring that parents and carers are supported in the event of parental bereavement. There was a general recognition that, whilst many employers are compassionate in such circumstances, these protections could not be left to individual discretion and should be guaranteed statutory rights.

The Committee focused specifically on two main areas where it felt the support and protections offered by the Bill could be widened and improved. These were in relation to including miscarriage and allowing for a day-1 right to pay, rather than applying a 26-week qualifying period as intended in the Bill. A number of individuals and stakeholders called for the Bill to be extended to provide bereavement leave and pay rights in the event of miscarriage. The issue of the removal of the 26-week qualifying period for pay and the insertion of day-1 rights to parental bereavement pay was also raised consistently by representative bodies across key sectors, including trade unions, human rights organisations, bereavement charities and business representatives.

Based on the evidence that it received, the Committee wrote to the Department requesting that amendments be brought forward in both those areas. The Department engaged on a number of occasions with the Committee, and, at the conclusion of that process, it was determined by the Committee that the Minister was not of a mind to take those issues forward in a way that was satisfactory to the Committee. The Committee therefore decided to pursue its own amendments. I thank the officials from the Department's Bill team for their engagement and for making themselves available to the Committee at short notice.

I turn now to the group 1 amendments. The Committee is proposing amendment Nos 1, 3, 5, 6, 8 and 9, which collectively require the Department to bring forward a scheme to provide for leave and pay for miscarriage to be introduced within 12 months of the commencement of the Bill. There was consensus in the Committee for the amendments to be proposed. As I have outlined, a significant number of individuals raised the issue of miscarriage in responding to the Committee's survey on the Bill, as did a number of stakeholders, including the Human Rights Commission, UNISON and the women's representative groups. The Committee therefore engaged in a series of detailed written and oral communications with the Department in relation to amending the Bill to include miscarriage. It is fair to say that the Minister and the Department had a strong view that miscarriage was outside the scope of the Bill and that the Department's focus from the outset was to mirror the parental bereavement provisions enacted by the British Government.

At its meeting on 3 November, the Committee considered the proposed amendment from the Department — amendment No 4 on the Marshalled List — which places a statutory obligation on the Department to consult on policy options for miscarriage as it relates to the Bill and to bring forward a report within two years of the associated regulations coming into effect. The Committee did not consider that amendment to be sufficient, as there is no commitment to act on miscarriage beyond reporting on a consultation. The Committee was also informed by the Department of what it described as a potentially significant increase in the cost of the Bill in making this change, and officials said that they did not believe that the Bill was the appropriate vehicle without having consulted on the practicalities.

The Committee believes that the costs will be manageable, and members believe that it is important to put support for those suffering a miscarriage into law. The Committee was clear that it wished to place an explicit obligation on the Department to bring forward a scheme to provide for leave and pay for miscarriage and for it to be introduced within 12 months of the Bill receiving Royal Assent. The Committee has been careful to allow for that 12-month period, which would allow for consultation whilst avoiding any delay in the enactment of the main provisions of the Bill.

The Department suggested that, if the British Government are required to restore parity as a result of the amendments to the Bill —

Photo of Gordon Lyons Gordon Lyons DUP 12:45, 30 November 2021

I appreciate the Chair of the Committee giving way. It is important that we look at a number of the issues that the Member raises. I will address some of those in my contribution later. She touches on the issue of the 12-month period. She said that that is sufficient time and, indeed, in the Committee, said that the Committee has been very flexible in using that period to get the Bill through. However, we should take into consideration the fact that we are coming towards the end of the mandate and will have purdah and summer recess, and the process that it will take to get all this through — the consultation and the liaison with the Committee and with the Executive. She and the Committee have been informed that my officials think that that is not merely a tight time frame but one that is impossible for them. Why, then, does she proceed to do that which she knows is impossible for my Department?

Photo of Caoimhe Archibald Caoimhe Archibald Sinn Féin

I thank the Minister for his intervention. Obviously, he can lay out his arguments shortly. I do not believe that it is impossible. I take on board the views of the Department, and, obviously, there is the Bill's Further Consideration Stage. If our amendments pass today, and the Minister can convince the Committee that further time is required, I am sure that Members will be open to looking at that.

Photo of Caoimhe Archibald Caoimhe Archibald Sinn Féin

I will continue with my comments, and the Minister can make his contribution in the time ahead.

We have been careful to allow for that 12-month period, which will allow for consultation whilst avoiding the delay in enacting the main provisions of the Bill.

The Department suggested that, if the British Government are required to restore parity as a result of the amendments to the Bill, the Treasury could seek to recoup the cost of doing so from the Executive's departmental expenditure limit (DEL) budget. The Committee sought to probe that further with the Department, seeking further detail on the Treasury rules and how they would apply.

Yesterday, the Department offered paragraph 2.6.10 of the Treasury's 'Statement of funding policy: Funding the Scottish Government, Welsh Government and Northern Ireland Executive'. That paragraph states that:

"where decisions taken by any of the devolved administrations or bodies under their jurisdiction have financial implications for departments or agencies of the UK Government or, alternatively, decisions of UK Government departments or agencies lead to additional costs for any of the devolved administrations, where other arrangements do not exist automatically to adjust for such extra costs (e.g. if the Barnett formula doesn’t apply), the body whose decision leads to the additional cost will meet that cost".

The Department has not brought forward any precedents where a devolved Administration were liable for the cost of the British Government restoring parity. It is also important to state that the Committee has been careful in constructing its amendments to ensure that unforeseen difficulties would return to the Floor of the Assembly for Members to make a judgement. It is also for Members to interpret the Treasury guidance for themselves in the absence of any clear evidence on how it could be applied. Additionally, the Committee has been clear that it does not want to delay the Bill: hence the provision of a year for the Department to consult and bring forward regulations with respect to the Committee's amendments.

All regulations brought forward from the Bill will be subject to the scrutiny of the House, as will any issues that arise to disrupt the bringing forward of those regulations. Members, we must also keep in mind that employment law is a devolved matter on which the Committee and the House have not only a right but a responsibility to take progressive action to the benefit of people here. The Committee has ensured that any scheme to make provision for miscarriage will need to be approved by the House, thereby allowing Members to consider any issues that might arise.

Photo of Gordon Lyons Gordon Lyons DUP

I thank the Member for giving way. Does she not understand that, by bringing in the Committee amendments that she proposes, she will delay the Bill in its entirety, because, if the two amendments go through, it will be impossible for us to bring in parental leave and pay in April 2022. The only way that the House can ensure that that measure is in by April 2022 is by supporting my amendments. Not only will we get that, but work can be started in relation to miscarriage as well.

This will be a big problem. We will not be able to get this in by April 2022 and possibly not even by April 2023, because of the work that will need to be done with HMRC. Does the Member accept that that is what she is doing?

Photo of Caoimhe Archibald Caoimhe Archibald Sinn Féin

I do not accept that. I do not accept the Minister's assertions. I believe that the work has been done on the Parental Bereavement (Leave and Pay) Bill. You can bring that forward and, at the same time, have further work conducted on the inclusion of miscarriage and the removal of the 26-week —

Photo of Gordon Lyons Gordon Lyons DUP

On that point, will the Member give way?

Photo of Caoimhe Archibald Caoimhe Archibald Sinn Féin

No. I will not give way again. I will let you make your comments, and, when you do so, perhaps you will give way to me.

Photo of Gordon Lyons Gordon Lyons DUP

Yes, I will.

Photo of Caoimhe Archibald Caoimhe Archibald Sinn Féin

It is worth noting that Lidl Ireland has recently announced its bespoke policy on bereavement for employees North and South. It is reported to have introduced compassionate leave with pay for employees who have experienced or been directly impacted by early pregnancy loss or miscarriage. Additionally, the Government of New Zealand have legislated to support those who have suffered a miscarriage. The Committee believes that it is acting in the best interests of people in the North by taking the opportunity through the Bill to afford those protections to as many parents as possible whilst ensuring that the Bill's original provisions are enacted in the current mandate.

I would like to make some very brief comments as Sinn Féin economy spokesperson. First, I acknowledge that the previous Economy Minister, Diane Dodds, introduced the Parental Bereavement (Leave and Pay) Bill, which is important legislation in its own right and, as introduced, would provide support for workers who find themselves in the awful circumstances of experiencing a child dying or a stillbirth.

From the time that the Bill went out for consultation, I have raised the issues upon which the Committee has tabled amendments. Those are statutory leave and pay for workers suffering miscarriage and the provision of those rights from day 1 of employment, with the intent of ensuring that workers in those most terrible of circumstances have the right to compassionate support from the time they enter employment. There has been a unity of purpose in much of the debate and discussion on the Bill, which is positive. In particular, I record my thanks to my fellow Committee members for the constructive and positive approach to the deliberations on the Bill.

Employment rights are fully devolved to the Assembly. We have the ability to set our own policy and to be a leader when it comes to standing up for workers. The amendments to the Bill would make us a leader, certainly across these islands, in ensuring that workers who suffer miscarriage have access to paid leave and that, they along with workers who suffer the death of a child, would have the right to paid time off to seek support, to deal with practicalities or simply to privately grieve and deal with their loss.

I urge Members across the Chamber to support the Committee's amendments, which have been well-considered and thought out. I reiterate my thanks to the Bill Office for its support in crafting those very pragmatic amendments, which provide flexibility to the Minister and the Department and allow for some modification, if that is deemed necessary, by a consultation, and which would, as I stated, be brought back to the House for a debate on the regulations to enact them. I look forward to hearing the rest of the contributions to the debate.

Photo of Roy Beggs Roy Beggs UUP

The Business Committee has arranged to meet at 1.00 pm. I therefore propose, by leave of the Assembly, to suspend the sitting until 2.00 pm. The first item of business when we return will be Question Time to the Minister for Communities.

The debate stood suspended. The sitting was suspended at 12.58 pm.

On resuming (Mr Speaker in the Chair) —