Alan Johnson: We have had a good debate. I am grateful to the hon. Member for Runnymede and Weybridge for moving the amendments, because they have enabled us to cover the whole question. He asked why subsections (3) and (4) of new section 80A detail what will be included in regulations. However, the Government were also criticised for not including many aspects of the provision in the Bill. We cannot win.
The explanatory notes make it clear that we have followed the trend established under the Social Security Contributions and Benefits Act 1992 on what should be included in primary legislation and what should be included in secondary legislation. As I said earlier, the legislation also reflects the maternity leave provisions. If we had not listed in the Bill some of the matters that we believe should not be changed through secondary legislation, we would be accused of having introduced Henry VIII clauses. In that respect, we were trying to help by placing in the Bill those issues that we believe should be absolute entitlements.
The matters dealt with in new section 80A (5)(c) are to be included in regulations because we believe that we may need to change them. It is a possibility. We do not intend to change it, but the provisions for paternity leave are unprecedentedapart, that is, from unpaid parental leave. The concept of paternity leave is new, so we need to be sure that the provisions can be amended by secondary legislation.
Mr. Hammond: I am curious about who is advising the Minister. Is he trying to tell the Committee that the Government are not sure whether to provide for one week or two weeks, or that it might have to be one and a half weeks, and that they need to leave the door ajar for such a change, but they are absolutely certain that it must always be a ''single period'' and nothing could ever convince them that enshrining the single period in primary legislation was a mistake? That seems an odd position to adopt.
Alan Johnson: It is a powerful argument, which was made also by my hon. Friend the Member for Manchester, Central.
The hon. Member for Tatton may say that he is pleased to be on the Opposition Benches because the Conservative party now has a more family-friendly and socially progressive policy than the Governmentbut I doubt it. He can say it, but I doubt if scrutiny of the record will show that to be the case. However, I could say that the Government are more business-friendly than the Conservative party, because what came out of our exhaustive consultations was the point raised by the hon. Member for North Norfolk, which is that employers can give whatever leave they wish. They can be as flexible as they like. The question is whether the employees will receive paternity pay.
Employers repeatedly told us that they did not want people continually to move in and out of statutory paternity pay. If employees did it every dayor at least in shorter periods than blocks of two weeks and one weekit would be a nightmare for employers and would be costly for the public purse. If those weeks were split into one-week periods, employers would
Column Number: 283have the problem of covering separate weeks. Employers have no problem with extending maternity leave. The limit of paid and unpaid leave is a total of 40 weeks, and extending it to 52 weeks by increasing paid maternity leave from 18 to 26 weeks is fine if someone is already there to cover the position and if the employer has plenty of notice to make other provisions. The problem arises when, in the quite short period of 56 days, which I will come on tomy hon. Friend the Member for Alyn and Deeside (Mark Tami) is not here, but he made an important point[Interruption.] He is here. He is obviously trying to get more information on the Government's intentions by moving closer to my briefing.
When the two weeks' leave are split within a period of 56 days, that causes problems with covering. There is also the problem for the Inland Revenue of how to administer a scheme of statutory paternity pay that employees move in and out of on a weekly basis.
Helen Jones (Warrington, North): I have listened to arguments from Labour Members and Opposition Members with great interest. However, I urge the Minister to consider the position of the employee seeking paternity leave. If the regulations were made too flexible, we could end up moving away from the basic purpose of paternity leave. It is designed not only to support the mother but to allow the father to bond with the child. If pressure is put on workers to take a few days here and a few days there, as could be the case in some organisations, we will be moving away from the idea behind paternity leave.
Alan Johnson: That is an important point, but powerful arguments have been made on both sides of the Committee about the way in which we are specifying matters in the Bill instead of retaining flexibility. That point is valid and I shall consider it carefully.
The arguments on the issue of whether the leave can be taken in advance of the birth do not persuade me. I was fortunate enough, in different capacities, to be involved in the Bill every step of the way, from the ministerial group that examined the issues in 1999 right up to now. We felt that there was an argument for allowing such leave to be taken. We even made a recommendation to that effect. The response came back that we would end up with a situation in which a father or partner decides on a specific day on which to take their leave, say 10 days prior to the birth, and they would specify, in a self-certification, that they were going to start their leave 10 days prior to the expected date of birth, but the birth might not happen on that date. Also, as the hon. Member for North Norfolk said, that is not paternity leave, it is something different, because the child has not yet been born. There is once again the issue of whether the partner is present when the child is born.
Because of those complications, and because it made matters much clearer, we decided that the period of the entitlement should begin on the date of birth. I would not say that the various groups that we
Column Number: 284consulted were unanimous, but we eventually reached a fairly clear consensus. Many employees argued for flexibility, but employers said that people should not be able to move in and out of statutory paternity leave, that that would be a nightmare for them. Many employers said that employees should be entitled to their two weeks only at the time of the birth and that there should be no flexibility, no period of 56 days. However, we argued against that.
I think that we have got the balance just about right, but there are two points that I should like to consider. One is that raised by the hon. Member for Runnymede and Weybridgethat the Bill does not allow for flexibility on the matters dealt with by proposed new section 80A(3). The second is that made by my hon. Friend the Member for Alyn and Deeside that the Bill does not include any provision to modify the 56-day period by regulation. I propose to table an amendment, for the reasons that my hon. Friend mentioned. A mother might be in hospital for a long time because of complications due to a premature birth, and the father might find that they had run out of their 56 days at the time when the mother came home after a difficult and traumatic experience and at the very point when she needed support.
Mr. Hammond: The Minister has acknowledged that there is no need for subsections (3) and (4), which impose a restriction on what the regulations may do. In so doing, he has thoroughly undermined his argument that he had to have those subsections in the Bill to reassure people that the regulations would include those provisions. Would it not be best for him to accept amendment No. 98, which would remove subsections (3) and (4)? He could then address the issues under regulations and would have the flexibility to deal with the single-period issue, the start date and the duration of the period of 56 days in the light of practical experience and after taking appropriate consultations.
Alan Johnson: The hon. Gentleman is right in saying that I have totally undermined my argument about those two provisions, but I am engaged in debate. I hesitate to accept any amendments, but I promise the Committee that I will come back with an amendment on the 56 days and give full consideration to the hon. Gentleman's point about putting the single period into regulations rather than the legislation.
I hope that after those comments, the hon. Gentleman will withdraw the amendment, unless there is another issue that I have missed. If he did so, it would be a satisfactory outcome to a good debate.
Mr. Hammond: Good. The debate has been constructive and a tremendous vindication of the selection procedure, as it turns out that the amendments were appropriately grouped together. In dealing with the substance of amendments Nos. 104 and 105, we seem to have come to the conclusion that the fault lies with subsections (3) and (4). By removing or amending those subsectionsI suggest that removing them would be the best solutionwe can return to dealing with those matters in regulations. For all the defects of regulations, they do have the benefit
Column Number: 285that, if something is not working correctly, it is relatively simple for the Government to undertake a consultation process and lay alternative regulations before the House without waiting for a slot in the parliamentary timetable.
In considering the Bill and the way in which the explanatory notes interact with itnotwithstanding the Minister's comments about my criticism of the clause for being prescriptivewe can see that it by and large depends on extensive regulation. The Government have signalled their intentions by use of the explanatory notes, which in many places make clear what the regulations will do.
Alan Johnson: For the record, the explanatory notes simply set out what we recorded and published in response to the consultation, which is published in the Library research document. That information should come as no surprise, as it has been in the public domain for at least three months.
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