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Baroness Blatch: I rise to support my noble friend. I have lost count of the number of times the Minister used the word "average". Am I right in saying that the speech which the noble Lord has just made would win no prizes whatever from the Plain English Campaign? The response given to my noble friend was incredibly complex. Does the Minister also agree that
employers—in particular, small employers—will hold their heads in despair if they have to spend time unravelling and sorting out the meaning of what the noble Lord has just said?
Lord Wedderburn of Charlton: My noble friend is to be congratulated on making very clear the need for the concept of normal weekly earnings to be used here. The difficulty that I have is not quite that of the noble Baroness who moved the amendment, which I hope will be resisted. "Normal weekly earnings" is a fundamental concept in various areas of employment protection law. A definition in Section 234 of the Employment Rights Act 1996 will not apply. A definition in Regulation 21 of the Statutory Maternity Pay Regulations, which, by chance, I have before me, is extremely complex but, when it is worked out, it is very clear.
As I understood my noble friend the Minister, the Government want to apply that notion with one or two minimal changes. I do not understand why we have to wait for a regulation in order to say so. If the Government know how they want to define "normal weekly earnings", why cannot they say so in the Bill? I have given notice on a number of occasions that I shall raise this kind of point with my noble friends. It seems to me that this is a perfect occasion on which to inquire why they need to ask officials to draft a regulation and leave everyone in suspense. The world is waiting to know what "normal weekly earnings" means in this section of the Bill. In some places that I know of, they speak of little else.
Lord McIntosh of Haringey: Not in my town.
Lord Wedderburn of Charlton: My noble friend Lord McIntosh may not hear it spoken of in Hampstead, but it will seriously engage the attention of employers. However, I do not believe that noble Lords should concentrate only on employers. There will be a number of advisers in trade unions who will try to help women workers in relation to maternity pay and male workers in relation to paternity pay. I cannot for the life of me think why the Government cannot put on the face of the Bill a definition of national weekly earnings in the light of what my noble friend said. If the only reason is that they have not yet made up their minds, perhaps they had better say that, because I do not believe it. I believe that they know perfectly well what they mean by normal earnings here. I urge my noble friend to adopt a new and, with a little help, liberal approach to this matter and tell us what the Bill means as much as he possibly can.
Baroness Gardner of Parkes: When I used to sit on an industrial tribunal, it was a regular discussion as to whether the word "normal" included overtime and whether it only included overtime if you were obliged to do it as opposed to it being voluntary. The same complication comes in with the word "average". These are points that should be clarified.
Lord Sainsbury of Turville: Having given the long answer, may I give the short answer now? The
provision seems to me sensible given that you have to work out average earnings which inevitably involves pages of complicated calculations. The Bill refers to normal earnings which are defined in the regulations. You cannot sensibly put that amount of regulation on the face of the Bill, not least because if there are changes in tax or anything else, that may affect it. You must sensibly put that matter in regulations. Of course, the regulations will not be exactly the same as those for maternity pay. You cannot sensibly put all that information, which covers all kinds of situations, part-time workers and others, onto the face of the Bill.4.45 p.m.
Lord Wedderburn of Charlton: I am sorry to press my noble friend on this but I have in front of me regulation 21 of the 1986 regulations to which he referred. As I understand it, that is the pattern that the Government wish to adopt in this part of the Bill. I have not been able to add up the lines, and he will forgive me if I am wrong, but I estimate that there are 30 or 40 lines. Is he saying there is no room in the Bill for another 40 lines, or that he does not know which line will apply? Do we not know what the regulation will say? If we do know what the regulation will say, why cannot he put the 40 lines in the Bill?
Lord Sainsbury of Turville: We could do so but you lose the flexibility to change that if there are very good reasons for doing so.
Lord Henley: On that point, have the 1986 regulations which the noble Lord, Lord Wedderburn, cited been changed since 1986, or are we still dealing with the same regulations? If they have not been changed in 16 years, it seems unlikely that there will be a frequent need to change them. Therefore, why cannot they be added to the Bill?
Baroness Miller of Hendon: Some 10 minutes or so ago, I started by saying this is a very short amendment which required only a simple explanation. I added the words "I trust", and I see that my trust is somewhat misplaced, because it turned out to be an extraordinarily complicated matter when I listened to the Minister. I agree with my noble friend Lady Blatch. I lost count of how many times he described average earnings in describing the term "normal". At the beginning of the Minister's answer to me, "normal" was not defined and "average" was not defined and I have tried to point out that they are defined in some way by the term "average earnings". I believe that that really is a complication.
I take note of what the noble Lord, Lord Wedderburn, says. I shall read very carefully what the noble Lord said and see whether the matter becomes more simple and more understandable as I read it. However, while I wish we were in Office and I were standing at the Dispatch Box and the Minister were in my place, I am very glad I did not have to read out his reply because I thought it was totally convoluted and very unclear. It may be that that is one of the reasons why the matter is not properly defined at this stage. But there is no reason why, when the Government
define it in regulations, they will not be able to find a simpler way of putting it. In the meantime, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 2, as amended, agreed to.
Baroness Miller moved Amendment No. 35:
- Page 14, line 10, at end insert—
The noble Baroness said: This is an identical amendment to that proposed by my honourable friend the Member for Runnymede and Weybridge in Standing Committee in the other place. However, it was withdrawn by him after the response of the Minister for Employment Relations and the Regions. I have read that short debate but felt it necessary to bring the amendment back today for some further consideration. For the sake of completeness and clarity I have reproduced the entire amendment, even though the Minister gave a technically satisfactory but entirely legalistic explanation of the first half of that amendment.
As this Bill is going to be relied upon by ordinary people, employers and employees alike, their rights and obligations should be entirely clear to them if they try to look up things themselves without having to employ a lawyer or consult an expert. These are important matters and the answers should be easily found and simple to understand. It ought to be possible for an employer and employee to sort out a potential problem or answer a simple question without having to go from one Act to another and so on. It is difficult enough when we are dealing with legislation ourselves. We are becoming more experienced at going from one Act to another but in the world of employment relations—the whole purpose of this Bill appears to be to make those relationships easier—simplicity and clarity are important.
The amendment is in two halves. The first provides that a person who takes adoption leave should suffer no detriment. It is to that half that the Minister gave the technically correct answer, which I would like to quote:
However, the second part of the amendment expressly stipulates that a person shall not be protected from a detriment that he would have suffered, whether he had adopted a child or not. I regret that on that part of the amendment, the Minister's reply in the other place was not satisfactory. It was factually correct but that does not make it satisfactory. The Minister said there,
In 1925, Parliament passed the workmen's compensation Act, which was deliberately drafted in non-legal language so every workman would clearly be able to understand his rights. The workmen may well have understood the Act but the truth is that the lawyers did not. In consequence, it became one of the most litigated pieces of legislation that Parliament has ever passed. That does not, however, make the sentiment wrong. The sentiment is right: there is no reason why anyone should have to trawl through this Bill, even assuming that he knows where to begin looking, only to find that his rights are defined by an extension to a section in another Act when the whole problem is resolved by the elegant 42 words drafted by my honourable friend in the other place. I am not even pretending that I drafted them! I have just lifted them and it looks very good and it would be very clear if it were in the Bill. They may be repetitive of what is said elsewhere, buried in the thick schedule which is difficult to find for someone who is not conversant with this kind of matter. Saying it twice, once very clearly, does no harm. It is only belt and braces. I beg to move.
"( ) Regulations under section 75A or 75B shall provide that a person suffer no detriment by virtue of taking adoption leave, but shall not be protected from any detriment that he would have suffered had he not been taking adoption leave."
"Detriment is dealt with in Schedule 6, subsection 24, which will amend Section 47(c)(2) of the Employment Rights Act 1996."
So for an employee to check that he is not to suffer a detriment for taking adoption leave, he has to find paragraph 24 of the sixth schedule to this Bill, which inserts an extra five words of amendment to another measure, which he would also have to read to find out what the draftsman is talking about. In the interests of the persons who are supposed to be the beneficiaries of this legislation on the one hand and those who are supposed to comply with it on the other, what possible harm is there in repeating in plain language, complete on the face of it and complete in itself, that a person
taking adoption leave is to suffer no detriment for doing so? Never mind that the same thing is said elsewhere in the Bill.
"Issues on which they cannot suffer detriment are in the Bill. Matters such as whether an employee should be treated in the same way as every other employee do not have to be in the Bill."
I disagree. For the reasons I have already given, there is no reason why the facts should not be clearly spelled out that an adoptive father may not be protected from a deserved or inevitable detriment merely because he is involved in the adoption.
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