Employment Bill

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Alan Johnson: On adoptive leave, for example, we have said that one adoptive parent will qualify for maternity leave and the other for parental leave. Which parent takes which form of leave is a matter for them. We also intend to cater for same sex couples. All those issues will be subject to amendments, but our response to the consultation document sets out in broad terms how we intend to deal with them.

In terms of the particular points at which amendments Nos. 96 and 97 are aimed, we are using ''shall'' for areas in which we have clearly stated that we will introduce regulations. It is standard parliamentary procedure to use ''may'', but not in relation to maternity legislation. Various pieces of maternity legislation have written into them such aspects such as the entitlement in this Bill to

    ''at least 56 days beginning with the date of the child's birth''.

Mr. Hammond: If I may build on the point made by my hon. Friend the Member for Tatton, an issue was missed in the previous exchange. Although the child's mother's position will be indisputable, is it not conceivable that two men who legitimately fall within

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the definitions envisaged by the Minister could claim to be entitled to paternity leave in respect of the same child? We must know whether it is intended that only one person will be able to claim maternity leave rights and one able to claim paternity leave rights. I am saying nothing about the gender of those people, but it would be inappropriate if two, three or four people could legitimately claim paternity leave rights because they were providing some kind of support or care for a child. Surely that is not what the Minister means?

Alan Johnson: In the vast majority of cases there will be one entitlement to paternity leave. I would not rule out a situation in which there are two fathers—a biological father and a father who will take parenting responsibilities because the biological father has left the mother. I am not ruling out, in exceptional cases, an entitlement for two men to claim paternity leave. I am not ruling that in, and I am not ruling it out. All I am saying is that the intricacies of this matter must be examined, which is why the regulations will go out to consultation and why they will be subject to the affirmative procedure. Such detailed matters will be addressed then, and it would be wrong for me to discount anything at this stage.

Mr. Hammond: I am grateful to the Minister. He has made his position clear. I am of the OCOF—one child, one father—persuasion. That is a pragmatic approach, given that the Government will be spending public money.

The Minister said that ''shall'' is used because the Government will definitely introduce regulations under the provisions. Are we to infer that wherever in parts 2 and 3 of the Bill ''may'' is used, there is a chance that the Government will not introduce regulations or that it is definitely not their intention to do so?

Alan Johnson: I should rather phrase it that we will definitely introduce regulations in the parts of the Bill where amendments Nos. 96 and 97 seek to insert ''may'' in place of ''shall''.

Amendment No. 100 is different, because it asks us to be clear about what we shall do, rather than may do, under regulations. Although the amendment is unnecessary, I am happy to clarify our intentions in respect of the three paragraphs in new section 80A(5). Paragraph (a) relates to those matters that should be taken to constitute caring for the child and supporting its mother. The Bill already allows paternity leave to be granted for those general purposes. The paragraph merely allows us to be more precise, if we so choose, about what caring and supporting means.

It is entirely possible that we will not want to introduce any regulations under paragraph (a). We are likely to take the same light-touch approach to paternity leave that we have taken to parental leave and not become too prescriptive, through regulations, about the circumstances in which leave can be taken, reserving such matters for the non-statutory guidance that we provide. Nevertheless, we need to have the option of regulations available to us.

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Mr. George Osborne: Is the Minister saying that the Government may find themselves unable to prevent someone from claiming paternity leave, then going on a two-week holiday, leaving the mother behind, without being required to pay any attention to the child on whose behalf they claimed the leave?

Alan Johnson: No, I am not saying that at all. I am talking about regulations made under new section 80A(5)(a), in which we may

    ''specify things which are, or are not, to be taken as done for the purpose of caring for a child or supporting the child's mother.''

We have a power under parental leave legislation to introduce regulations, but we have never found it necessary to do so, because it can be dealt with in guidance. We may or may not, but probably will not, introduce regulations in that respect.

The hon. Member for Runnymede and Weybridge asked whether the Committee can assume that wherever ''may'' is used we are not entirely sure whether we will need regulations. In relation to subsection (5)(a), that is so. Paragraphs (b) and (c) are different in that we believe that regulations will be necessary.

There is a difference between amendments Nos. 96 and 97 and amendment No. 100. In respect of the first two, we have clearly set out what we intend to do; it is a matter of public record. On the third, we need to use ''may'' because we may not need to introduce regulations. I hope that the hon. Gentleman will withdraw the amendments.

Norman Lamb (North Norfolk): I shall make only a brief contribution. We support the introduction of paternity leave, which in our view is long overdue. As the Minister said, we lag well behind many countries in introducing such rights. I have not noticed any great opposition from business or business organisations to the introduction of what is a modest proposal. It is important that Parliament recognises the role of the father in bringing up a child at the start of the child's life, so I hope that everyone will support the introduction of this provision. It is sensible to use ''shall'' because it presents an absolute commitment to the introduction of regulations for paternity leave. It also seems sensible to require that the regulations set out the extent and timing of those rights.

As a general rule, I prefer the details to be set out in the Bill rather than in regulations. However, it is pragmatic to provide for such details by way of regulations because it introduces an element of flexibility so that, after a time, regulations can be assessed and changed, if necessary, in the light of experience. We are happy to support the general thrust of the clause, which is fine as it stands. The amendments, which we appreciate are probing, are unnecessary.

Mr. Hammond: As the hon. Member for North Norfolk (Norman Lamb) has not tabled any amendments, we can deduce that the Liberals find that this part of the Bill is fine as it stands. In the days to come, I hope to show why it is not.

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The hon. Gentleman's point that regulations have their place because they are more flexible and can be more easily changed would stand up better if it were not for subsections (3) and (4). They deal with the fact that regulations are to be made and give detailed prescription of what the regulations are to say. They state that

    ''he is entitled to a single period of leave of at least two weeks''

and that the regulations will state that that leave will be

    ''taken before the end of a period of at least 56 days''.

There can be little flexibility in secondary legislation if it is constrained by the Bill. We shall return to that point in a later amendment. I cannot see the point of writing into the Bill a requirement on the Secretary of State to make regulations, pleading that secondary legislation is better because it is flexible and can be changed more easily, and then including a specific constraint in the Bill as to what secondary legislation can say.

The Minister has struggled to justify the arcane use of parliamentary language. The truth of the matter is that some legislation routinely uses one form of language and other legislation uses another. The Bill amends different Acts, and that leads to an uncomfortable incompatibility of language. It is the way in which the Employment Rights Act 1996 has been generally framed that has led to the use of ''shall'' in this Bill; other Acts are framed differently. Another example that will be dealt with later is that the Social Security Contributions and Benefit Act 1992 uses the curious term ''ceased to work''; an employee has ''ceased to work'' for an employer. The Employment Rights Act 1996 uses different language to deal with the same situation and later in the Bill those two different uses of language can be seen, strangely, side by side.

The Minister said that the Committee should be alert to the fact that the Government's intentions in paragraphs (1), (2) and (5) of new section 80A are different because the Government might not introduce regulations under new section 80A(5)(a), and I understand why. A later amendment will probe the Government on that. However, as the Minister has raised the matter, perhaps he will clarify now whether failing to specify in regulations what is or is not to be taken as done for the purpose of caring for a child will inevitably mean someone else having to make that determination. I presume that the remedy for someone who is denied paternity leave by his employer because his employer did not believe that he had satisfied the conditions would be to make an application to an employment tribunal, which would then have to determine the issue, or will the employer be put on the spot to determine the issue? That is slightly uncomfortable, but our debate has been rather wide--it basically concerns ''shall'' versus ''may''--and we may have an opportunity later to consider more specific matters.

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5.15 pm

I hope that we can conclude that parliamentary language is arcane and not often helpful in divulging the underlying purpose. I am grateful to the Minister for his explanation, as far as it went, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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