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Lord Sainsbury of Turville: I believe that adoption is valuable to society, and adoptive parents and their children of course need time to bond and adapt to their new circumstances. I recognise the situation the noble Lord describes, but we come from a slightly different direction.
The Bill marks a significant step forward by making it possible to establish for the first time a statutory right to parental leave for adoptive parents. The noble Lord suggests that natural and adoptive parents should be given parity in terms of maternity leave and pay. The maternity rights are designed to meet the specific needs of new and expectant mothers; they are special provisions, predicated on health and safety considerations specific to women who are about to give or have just given birth and for that reason are permitted under European equal treatment law.
The health and safety rationale does not apply in the case of adoption. Extending the rights beyond pregnant women, however deserving the case of an adoptive
mother of a young baby, could be discriminatory if men were excluded, and to cover fathers as well could raise other issues. I think that that highlights that the two situations are not directly comparable. I ask the noble Lord to withdraw the amendment. Meanwhile, we shall continue with our consultation on the parental leave regulations which we can tailor to the special circumstances of adoption which he mentioned.
Lord Meston: I am glad to hear the Government reiterate the recognition that adoption is extremely valuable and that time is needed for a successful adoption. I also accept that the parental leave provisions give some opportunity which does not exist at present. But parental leave, as I understand it, is not to be paid leave.
I sought to suggest that the health and safety rationale which underlies maternity leave--I do not pretend that it is comparable with the requirements for adoption--nevertheless is an insufficient reason for discriminating against those who wish to adopt. I do not seek to repeat those reasons.
In opposing the amendment I suggest that the Government underestimate the difficulties facing adopters and the value of adoption at this time when more and more children are being retained in the care system. Looked at from the point of view of the wider good of society, this amendment, or something like it, should be given serious consideration. I do not propose to press the amendment at this stage, but reserve my position for later stages of the Bill. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon moved Amendment No. 248:
The noble Baroness said: In moving the amendment, I speak also to Amendments Nos. 249, 250 and 251A to 254. This group of amendments relates to that part of Schedule 4, principally paragraph 76, dealing with parental leave, which the Government describe in the notes as "new". That is why it requires some tidying up.
The amendments can be explained simply. Amendment No. 248 inserts a definition at the end of paragraph 76(1)(b) of what constitutes a child. It includes a child who is related to the employee in very broad terms: a natural or adopted child; a grandchild or a stepchild; a child whom the employee has been appointed to foster; a child to whom the employee is in loco parentis. Those definitions cover every item which could come within any reasonable definition of a child. The last one, someone to whom the employee is in loco parentis, would take care of special cases coming within a well defined legal concept. It ensures that an employee cannot take advantage of the limitless definition contained in the Bill as drafted. For example, temporarily looking after a sister's child while she goes off on holiday, or a next-door neighbour's child while
Amendment No. 249 makes clear that the parental leave is unpaid. This follows the assurance from the Government in the Explanatory Notes, on page 39 at paragraph 160, that,
Amendment No. 251A has been slightly altered since it was first tabled as Amendment No. 251. It originally stated:
Amendment No. 253 is self-explanatory. When making his regulations, the Secretary of State should have regard to the needs of the employer and his business as well as to the wishes of the employee. That is no more than is allowed in the directive, as I shall mention on a later amendment. There is no reason why the Secretary of State should tie his hands or deprive himself of the right to take a very relevant factor into consideration when the directive unequivocally gives him some direction.
Finally, in this group, Amendment No. 254 modifies paragraph 79(1)(b), which empowers the Secretary of State to require employers to keep records. It does not say records about what, but I have to assume that it means when an employee has taken parental leave. I have proposed that records maintained for tax and other statutory purposes may be made use of. They may not be entirely sufficient on their own, which is why in my amendment I have simply stated "made use of".
What we do not want is to have a requirement for another lot of form filling to be imposed on businesses, which is often a burdensome requirement for very small businesses. When I proposed a similar provision in the National Minimum Wage Bill as it passed through your Lordships' House, it was vigorously shot down by the Minister in charge, but, nevertheless, the regulations made under that Act specify that tax records may be used for the purposes of establishing the hours worked and the wages paid.
It is clear that the Government will follow the course proposed in the amendment sooner or later, so I believe that they could save a lot of time and make the change now. I beg to move.
Page 64, line 23, at end insert ("who is related to the employee as either a natural or adopted child or grandchild or stepchild or whom the employee has been appointed to foster or of whom the employee is otherwise in loco parentis,")
"the employment contract will continue in existence during parental leave and the terms and conditions of employment, other than remuneration, continue to apply".
That is stated in the notes. The amendment clarifies the provision in the Bill.
Amendment No. 250 alters sub-paragraph (4). Paragraph 76 states that the Secretary of State shall make regulations regarding the operation of parental leave. Paragraph 76(2) states that the regulations "shall" include provision about entitlement to parental leave and when it may be taken. Paragraph 76(3) states that the regulations "shall" contain certain provisions in the employee's interests. The word "shall" appears in all three cases. However, when we turn to the important sub-paragraph dealing with when the leave may be taken, it is entirely permissive as to whether there is reference to the child's age or on what date or event the entitlement starts. I believe that it is pointless to allow the starting date to be left up in the air. Unless the age or event is specified, someone could claim leave when their child is already in full-time schooling, or later. I shall return to that possibility later. As the earlier parts of the paragraph are mandatory, I believe that the short descriptive paragraph must be consistent, and likewise must be mandatory.
"not extending beyond school leaving age".
That was due to a slip of the pen (or perhaps more accurately a slip of the keyboard) for which I apologise. The amendment now reads,
I believe that it would be safer if the Secretary of State had some constraint in the Bill. In paragraph 159 of the Explanatory Notes the Government claim that sub-paragraphs (2)(b) and (4) will,
"not extending beyond the child's 5th birthday unless the child has special needs".
Clearly, unless we put some cap on the closing date for parental leave, we may find that people try it on and attempt to take leave when the child is quite old enough to look after himself or herself to a certain extent. Why should an employer be burdened with parental leave when, for example, the child is 10 years old? The directive on parental leave puts a cap at the age of eight years. There is no reason why the Government should not follow suit unless they are planning to do even more gold plating--to which we shall come later.
"enable the regulations to set the maximum age ... in respect of [when] parental leave may be taken".
Why should the Secretary of State not bite the bullet and tell us now what he may have in mind?
16 Jun 1999 : Column 316
Paragraph 159 of the Explanatory Notes states that the maximum age,
"could be below 8 years, the upper limit specified in the Parental Leave Directive".
The phrase is "could be" rather than "will be." Since the Government appear to indicate that they might go for an age lower than eight, I take the liberty of suggesting a figure. That is why I propose the age of five. I think that eight is more in line with the school starting age for children on the Continent. If it is reduced in that way, I believe that it would reduce the burden on small and medium-sized enterprises.
Amendment No. 252 alters sub-paragraph (5)(e) so that as well as specifying the minimum period of parental leave, the regulation should specify the maximum. There can be no case for an open-ended entitlement. The Committee will have noted that sub-paragraph (5) is permissive. The Secretary of State may refer to various qualifying matters relating to parental leave, so there is no obligation on the Secretary of State to stipulate a minimum period of leave. However, if he does so, he should also specify the maximum. Fair is fair, as I said on earlier amendments, especially when the Government have claimed that they will be even-handed.
5 p.m.
Lord Tebbit: I am minded to support my noble friend in these amendments. I do not wish to waste the time of the Committee by reiterating the arguments she made, but I wish to raise two issues which do not appear to be clear. I say "appear to be clear" because the Bill is enormously complex. That is because it is an intrusive Bill and many Members of both sides of the Committee believe that there is a degree of complexity, perhaps driven by the draftsmen and the lawyers, to bottle up every conceivable variation of circumstance and noble purpose. But, of course, they will fail. Sooner or later, someone will find something in this.
My question relates to the leave, which I understand is to be unpaid. How does it affect the employer's liability to contribute to pension schemes? Does the employer have to continue to make contributions? Where the employee's leave is unpaid, is he eventually at a disadvantage in the pension scheme if he does not make the contribution, despite the fact that he is not being paid during the period off work? How does it affect the entitlement to annual bonuses? Is it to be expected that the employer will be under some obligation to pay a full annual bonus to those who are taking leave under the provision of this Bill, which is unpaid? It would be helpful if the Minister could give us, as best he can, the answers to those questions.
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