Parental Bereavement (Leave and Pay) Bill: Further Consideration Stage

Part of Executive Committee Business – in the Northern Ireland Assembly at 3:45 pm on 24th January 2022.

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Photo of Gordon Lyons Gordon Lyons DUP 3:45 pm, 24th January 2022

Now that the Parental Bereavement (Leave and Pay) Bill has reached Further Consideration Stage, we are so very close to securing this essential entitlement for bereaved parents. With the support of the House today and the continued support of the Committee in the weeks ahead, it is my intention to see parental bereavement leave and pay introduced no later than this coming April. That early introduction will be welcomed across the Chamber and by all sections of our community, including employers and trade unions, but especially working parents.

The Bill has not had an easy passage. There are lessons to be learned for all of us about we as an Assembly, with our Committees and ministerial offices, can best work together in order to advance legislation that benefits everyone. The will of the House was settled at Consideration Stage, and I am focused today on securing your support for my fixing amendments. In the interests of securing the April 2022 introduction date, I will also support two amendments from the Chair of the Economy Committee, although I realise that she has not tabled the amendments in her role as Chair. I am solely focused on ensuring that we secure parental bereavement leave and pay for our people here and now. The amendments to which I speak are complex, owing to the technical nature of the fixes that they seek to achieve, but they share a common purpose, which is to give effect to the will of the Assembly as expressed at Consideration Stage. Whilst each amendment is discrete and fixes a particular component part of the Bill, they should be considered as a collective, interdependent whole in order to ensure that we have cohesive Bill that progresses to Final Stage.

I shall now speak to each amendment. My amendment No 1 will extend parental bereavement leave entitlement in the event of a miscarriage beyond only the expectant mother so that it can include, for example, fathers, husbands and partners.

My amendment No 3 removes the reference to eight weeks' employment in relation to the lower earnings limit, which will help make entitlement to parental bereavement pay a day-1 right instead of having an eight-week qualification period.

My amendment No 5 ensures that parental bereavement pay can be conferred on those who may not have fixed hours, who may have only short-term contracts ending around the same time as a child dies or who may have a zero-hours contract. In removing the eight-week qualifying period in which the lower earnings limit would have been calculated, a mechanism had to be established so that employers could determine weekly earnings. For the entitlement to be a day-1 right, it must be available to people who may lose a child on the first day of their employment. They may not have fixed contractual hours and therefore may not have fixed earnings. They may not yet have a written contract stating their hours of work or weekly pay. They may initially have earned a lower amount of wages in the first couple of weeks but their hours and earnings were due to increase over subsequent weeks. The existing requirement to establish the lower earnings limit by looking at earnings over an eight-week period prior to the death of a child necessitates people to have worked for their employer for eight weeks before being able to avail themselves of the payment. That contradicts the expressed will of the House, which, in agreeing to remove the 26-week qualifying period, believed that it was achieving at least a week-1 entitlement, if not a day-1 entitlement. There are myriad circumstances in which some employees who may meet the lower earnings threshold could still lose out on entitlement to parental bereavement pay. Amendment No 5 fixes that issue, I believe, in all circumstances.

My amendment Nos 6, 8 and 11 through to 13 ensure that the new entitlement criteria and the calculations for the lower earnings limit are referred to in the correct places in the Bill. They are technical amendments that will also ensure that correct numbering and references appear.

My amendment Nos 15 and 16 deal with assumed earnings. The amendments facilitate the day-1 right and overcome the difficulties for employees with no fixed hours. They enable employers to rely on assumed earnings in order to confer the day-1 entitlement on employees with no existing pay from which to determine the lower earnings limit.

My amendment No 17 will extend parental bereavement pay entitlement in the event of miscarriage beyond only the expectant mother so that it can include, for example, fathers, husbands and partners.

My amendment No 20 will enable and facilitate the introduction of parental bereavement leave and pay on 6 April 2022. While it will also allow the Department to determine when miscarriage provisions apply to parental bereavement leave and pay, I acknowledge that that will be subject to Dr Archibald's amendment No 21, which will require miscarriage provisions to be applied by no later than April 2026.

My amendment Nos 23 and 24 deal with Assembly control procedures. They will allow for the first set of miscarriage regulations to remain subject to the draft affirmative procedure but, in the interests of pragmatism and in keeping with custom, will remove the draft affirmative procedure from any subsequent regulations.

My final amendment, amendment No 25, simply reflects the inclusion of miscarriage in the long title of the Bill.

Following Consideration Stage and the expressed will of the Assembly to remove the 26-week qualifying period and to extend provisions to encompass miscarriage, I instructed my officials to bring forward fixing amendments to give effect to that expressed will. In working towards bringing forward the amendments and giving effect to the will of the Assembly, my officials discovered fundamental operational flaws in some of the amendments that were passed at Consideration Stage. The complexity of my fixing amendments stands testament to the problems that those amendments created. Working intensively over the Christmas and New Year period, my Bill team was able to arrive at solutions that fixed the flaws in the amendments from Consideration Stage. Had those amendments not been fixed, such was the wording of provisions in them that entitlement to parental bereavement pay would have extended only to a woman who suffered a miscarriage and not to the father, husband or partner.

My amendments fix that oversight by creating the power to extend entitlement to include fathers, husbands and partners.

The intention behind the Committee amendment in removing the 26-week qualifying period was to create a day-1 right, but, due to the complexities that it encountered, the Committee had to settle for the rather unsatisfactory week-1 right. Further illustrating the inherent risks of legislating without due consideration of the wider implications, the amendments also overlooked the eight-week period in which the lower earnings limit is determined. Members will be aware that the lower earnings limit is inextricably linked with benefits and statutory entitlement payments. By failing to remove the eight-week reference period, the amendments had the effect of removing the 26-week qualifying period whilst effectively replacing it with an eight-week qualifying period. Replacing a 26-week qualifying period with an eight-week qualifying period is not, I believe, what Members voted for at Consideration Stage, but it is what we were given by that amendment.

My amendments remove that eight-week qualifying period but also go further. They improve the Bill by making the entitlement a day-1 right. I was able to achieve the day-1 right through a careful dissection of the Bill and all of its intrinsically linked component parts. It has not been easy, but a legislative mechanism has been devised through which any employee or worker who meets the lower earnings threshold will now be eligible from day 1 of their employment to parental bereavement pay. Therefore, my fixing amendments extend miscarriage entitlement to fathers and partners, remove the eight-week qualifying period left behind and remove the week-1 qualifying period by securing a day-1 entitlement. The fact that those complex issues remain to be resolved is indicative of how tightly woven the Bill is and how the amendment of even one small and seemingly obvious part may not achieve the desired effect because of the many underlying, unseen and interconnected constituent parts.

The safety net provided by Further Consideration Stage is exactly that — a safety net. Beyond that, any more changes and unforeseen effects cannot be rectified or corrected. That is why I ask you to consider the positive impact of my amendments on the Bill and how my amendments improve on and fix the flaws in the Consideration Stage amendments. We have Further Consideration Stage to correct such mistakes. If we repeat those mistakes, we will not have the same safety net. My amendments have been carefully considered and crafted. They deliver and, more importantly, improve on the amendments that the House voted for at Consideration Stage. They do exactly what they say they do, and I ask the House not to risk accepting further amendments at this late stage that will again risk unravelling the Bill, because, this time, it will carry an even greater degree of risk because those mistakes cannot be fixed.

I appreciate that amendments will be moved by Dr Archibald, and, in the interests of securing passage of a complete, coherent Bill and to ensure that parental bereavement leave and pay is in place for April 2022, I will support Dr Archibald's amendment Nos 19 and 21 and urge all Members to support those two amendments alongside my supporting amendments. My amendments to clause 2 are intrinsically linked. For the Bill to remain legislatively sound, all my amendments to clause 2 must be voted in today. Dr Archibald's amendment Nos 19 and 21 will help to facilitate the introduction of parental bereavement leave and pay by April 2022 and will help to secure its extension to miscarriage by no later than April 2026.

For the reasons that I have outlined, I ask the House to support my amendments and amendment Nos 19 and 21. I understand that other amendments may not be moved, and that would significantly change the outcome of the Bill. I thank Members for their time and for the work that was done to ensure that the Bill can proceed. I recommend my amendments to the House.