Employment Bill

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Mr. Hammond: I have listened to the Minister's argument, but there seems to be an element of discrimination against the self-employed and against men. He is not prepared to treat self-employed men in the same way as self-employed women for paternity and maternity pay purposes. The Minister may give all sorts of reasons for that, but it is not satisfactory. One amendment in this group gives cause for concern, so I shall talk to organisations that represent the self-employed and return to the matter on Report.

We are simply asking for an assurance that the Minister could easily give. We want him to ensure that self-employed people with low earnings are able to take paternity leave and receive benefit equivalent to statutory paternity pay. No matter how he does it and regardless of the mechanism used and whether it is called statutory paternity pay, will he give that assurance, as he gave a similar assurance to the hon. Member for Doncaster, North last week in respect of employees below the lower earnings limit? That is all I ask. I understand his reluctance to make such a commitment, but if he thinks about the matter, he may find that he is able to give that undertaking within the scope of the overall benefits system. I shall return to

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the matter on Report, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 128, in page 8, line 15, leave out 'kinds of rate' and insert 'rates'.

This amendment addresses a point at two levels. New section 171ZE(1) refers to regulations that may prescribe different rates for different cases. I understand what is meant and I am used to Bills providing that regulations may prescribe different rates for different cases and different rates for different classes of people. I may not agree with that and I would challenge the requirement for a provision that allows the application of different rates to different cases. Will the Minister explain what circumstances would justify payment of different rates in different cases? It is not obvious to me that any cases would justify the payment of rates different from those laid down in the regulations.

I am intrigued by the concept of ''kinds of rate''. Will the Minister explain what that is, because I have wracked my brains. Is it a generic phrase? The rate is 10 per cent. and a different rate is 20 per cent.? Would a different kind of rate be one fifth instead of 20 per cent? I do not understand the phrase ''kinds of rate'' and in the interest of economy of drafting and removal of some of the muddle in the Bill, I suggest that the phrase be eliminated and that ''rate'' be inserted if the Minister insists that he requires the ability to apply different rates to different cases.

Alan Johnson: The new section will enable us to set the rate of statutory paternity pay at the same standard level as statutory maternity pay. We have made it clear that we intend to set the rate of statutory maternity pay in 2003 at £100, and the rate will be the same for statutory paternity pay, or 90 per cent. of average weekly earnings, if that is less. The issue at the heart of the amendment is that different kinds of rates are required, one standard and one variable. The amendment would restrict our ability to follow the approach taken for statutory maternity pay, preventing us from setting both a flat rate and a variable rate by allowing us to set only different flat rates—say, £100 and £75 a week. That is why the term ''kinds of rates'' is used. We want to determine that there are flat and variable rates.

Statutory paternity pay will provide some earnings replacement to help parents to take paternity leave.

Mr. Hammond: I am afraid I do not agree with the Minister. Subsection (2) begins:

    ''Statutory paternity pay shall be payable at such fixed or earnings-related weekly rate as may be prescribed''.

If it went on to say that that would be done by regulations which may prescribe different rates, the rate—10 per cent., 20 per cent., 90 per cent. or whatever it may be—would apply to fixed or earnings-related rates and would be a percentage of earnings. I do not understand the Minister's point.

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Alan Johnson: When it comes to drafting, we often plead with hon. Members to trust us that the wording is right. I am assured that the Bill mirrors statutory maternity pay legislation. I am advised that the amendment would allow us to set only two flat rates and not one flat rate and one variable rate. That is why ''kinds of rates'' is included, as it is for statutory maternity pay. Whenever the hon. Member for Runnymede and Weybridge points me to a set of words and I read them out of context, I tend to go over to his point of view until I have communicated with the parliamentary draftsmen, who reassure me. I am convinced that the amendment would have a serious effect on what we all propose to do in relation to statutory paternity pay.

Mr. Hammond: I cling, however tenuously, to the notion that Committees of the House rather than Ministers huddled with their parliamentary draftsmen. are supposed to investigate these matters. I am disappointed, but perhaps not surprised, that the parliamentary draftsman usually manages to swing the Minister back to his way of thinking. It seems to me that different rates would encompass the concept of different percentages of earnings to deal with earnings-related weekly rates. I do not see the problem there, but this is less a major issue than a simple attempt to clean up the Bill a little. Therefore, I shall not press it, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 133, in page 8, line 31, leave out

    'except in such cases as may be prescribed.'.

Subsection (4) is a bit of a mystery to me. It says that

    ''except in such cases as may be prescribed, statutory paternity pay shall not be payable to a person in respect of any period when he works under a contract of service.''

The words

    ''except in such cases as may be prescribed''

give the Secretary of State a large amount of discretion. The purpose of excising them is to ask the Minister to clarify in which cases he expects to prescribe that statutory paternity pay shall be payable to a person in respect of a period when he works under a contract of service. Perhaps it would help the Committee if he could begin by explaining why, in general, statutory paternity pay would not be payable in such circumstances.

11.45 am

Alan Johnson: We have an amendment on that issue somewhere down the line, probably on adoption pay. The simple reason is that a person cannot work and get the payment at the same time. Other than in prescribed circumstances, we cannot have a situation in which people are being paid by the state to take time off to spend with their children, but are working. The words

    ''Except in such cases as may be prescribed . . . by regulations''

are included here, as they are in the maternity provisions. The amendment, if accepted, would remove our ability to make exceptions. However, the hon. Gentleman makes a fair point when he asks what

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type of exceptions we have had experience of in relation to maternity provisions. Once again I say, with boring regularity, that we are mirroring the provisions in the maternity pay statutes.

In the case of maternity pay the equivalent power has been used, for example, to allow mothers who have two contracts of employment that qualify them for statutory pay to claim their statutory pay from one employer and work for the other, perhaps for only a few hours a week, if they wish. That is not in the two-to-four-week stage, but further down the road of maternity leave. That has proved useful for mothers who want to return to work gradually without losing their entitlement to SMP. That is a clear example of a situation where that provision has been used.

I recognise that because maternity leave is so much longer, it is difficult to think of a similar circumstance where we may need to use the provision for paternity leave. However, I see no fundamental reason to regulate differently. The hon. Gentleman says that the provision allows the Secretary of State to do all kinds of things, but I think that he will accept that we are here looking to keep our options open for exceptional circumstances that may arise. A certain circumstance has arisen in the case of statutory maternity pay, and the provision was very useful for that. It is not inconceivable that a similar situation could arise for paternity leave.

Norman Lamb: There are plenty of cases in which men work a few hours a week in different jobs, in each of which they are classed as an employee. It may well make sense for them to give up one or more of those individual jobs but retain another during the period following the birth. They might work 10 hours a week in a cleaning job but give up another job washing up in a kitchen, for example. There might well be cases in which such provision is necessary to safeguard the rights of such people, so that they may receive pay for the small job that they continue to do but receive paternity pay at the same time. I am just confirming that there are clearly cases where the provision could apply to paternity leave.

Alan Johnson: The hon. Gentleman makes a good point. I was saying that in the case of maternity leave, that provision is used to allow women to return gradually to the workplace. With the two-week statutory paternity leave, the same circumstances would not apply, but we may need to prescribe for the circumstances that the hon. Gentleman mentioned.

That is why that provision is included in the clause. I hope that the hon. Member for Runnymede and Weybridge can withdraw the amendment.

Mr. Hammond: The hon. Member for North Norfolk cited a valid example of where it might be appropriate to allow someone to continue to work and to draw statutory paternity pay. Our difficulty is that the Minister has not said that that is what the Government intend to do under regulations. I assume from his silence—or, rather, from his open acknowledgment that he cannot yet foresee a situation in which they would wish to use that power—that we can deduce that it is not the Government's intention to

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give the flexibility to which the hon. Member for North Norfolk referred.

The Minister said that he would like to keep his options open. I suggest that Henry VIII was probably a great person for doing that, and that the best way of truly keeping all options open is to abolish Parliament altogether. Our purpose in being here is to try to circumscribe the enormous powers that Secretaries of State have, lest, at some unforeseeable future point, the Secretary of State for Trade and Industry is not the present fragrant incumbent but someone of an altogether less agreeable disposition who might use the extensive and unconstrained powers in a way that Parliament would find onerous and unacceptable.

In general, I therefore think it legitimate to try to tighten Bills and to remove as much discretion as possible. At the very least, we should try to get Ministers to scratch from the depths of their brain instances of occasions when they might need the powers that they say they need. If, with the benefit of huge civil service resources, a Minister cannot produce a single example of the intention to use such a power, or of a circumstance in which it might need to be used, it almost certainly need not be included in the Bill. That is my motivation in probing these matters.

The hon. Member for North Norfolk has come up with a good example, but the Minister has not endorsed it, so we are no further forward in establishing whether there is a practical reason for the provision. However, as we have had the debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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