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Baroness Miller of Hendon: I was grateful to the noble Lord for the undertaking he gave when he was speaking to my amendment to Clause 7. I was not commenting particularly on the items in Clause 8, other than to say would there be any of them that he would not include, because it seems to me that they should be included. Perhaps I misunderstood whether the undertaking covers that one also.
Lord McIntosh of Haringey: Both Clause 7 and Clause 8.
Baroness Miller of Hendon: Then I am satisfied with that answer and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Regulations about payment]:
Clause 10 [Powers to require information]:
Baroness Miller of Hendon moved Amendment No. 42:
- Page 24, line 24, leave out "has been" and insert "was at the time of claimed entitlement"
The noble Baroness said: I would like to speak to Amendments Nos. 42 and 43 together as they are identical. The first alters the description of a person in the regulations from,
- "any person who . . . has been, the spouse or partner of",
- "any person who . . . was at the time of claimed entitlement the spouse or partner of",
The reason for that change is obvious—it is intended to clear up a manifest anomaly. As the Bill is drafted, a spouse or partner could have left the domestic home and yet could still have claimed the benefit of statutory paternity or adoption pay. The object of those benefits, as stated in the notes and as enshrined elsewhere in the Bill, is to enable a spouse or partner to take time off work in order to lend support to his spouse or partner. They are not intended to finance him if he has deserted his spouse or partner and has abandoned those obligations together with his obligations to the new child, having perhaps run off and set up home with a new partner.
Amendment No. 43 has a similar purpose. Clause 10(2)(c) refers to a person who is, or has been, an employer of a claimant. There is no reason why a former employer should have a continuing obligation to fund so-called paternity leave when the father or adopter is no longer in his employment. What is he on leave from? It could be argued that the provision seeks to cover the case of a person whose employment has terminated without thought on the part of the employee some time before the birth or adoption.
How far back does the right to claim go? Does it go back to the date of conception of the child or the date when the adoption process began? The Bill does not say how "former" the former employee must be; nor does it cover the situation where an employee is dismissed for a good cause. Neither of those omissions are suitable for inclusion in a regulation which the Secretary of State may or may not make. They should be dealt with in the Bill itself.
I had previously tabled an amendment to Clause 2 in which I proposed that an employee should not be entitled to statutory paternity pay from an employer if he no longer worked for that employer. However, in a letter to me dated 6th March, which was kindly copied to the Front Bench of the Liberal Democrats and to the Convenor of the Cross Bench Peers, the Minister of State said:
- "It would generally be the case that an employee will not be entitled to statutory paternity pay from his employer if he no longer works for that employer."
However, as your Lordships will see, precisely the same problem arises in relation to Clause 10(2)(c). I am confident that, in the interests of consistency, the Government will accept this amendment and that, in the interests of further consistency, they will agree to apply the principle to spouses or partners who, for whatever reason, have departed from the amendment. I beg to move.
Lord McCarthy: I am glad that the noble Baroness has explained the position. At first I could not believe it, but it seems that it is so. Paternity leave, paternity pay and paternity benefit are being turned into a form of moral policing. If a man leaves his wife or if his wife leaves him, they do not receive the money. One only looks after a person if one lives in a home with that person. Millions of parents do not live with their ex-spouses, but they still support them and are entitled to statutory leave and statutory pay, which plays an important part. Why must we have such morality?
Baroness Miller of Hendon: Morality has nothing to do with my amendment. If the noble Lord, Lord McCarthy, believes that it has, then obviously I did not explain it as clearly as I thought. One reason for paternity pay, which, unlike maternity pay, is a new idea which we thoroughly accept, is that a new father should have time off in order to help his spouse. The point I am making is that, if he has now separated from his spouse and is not living with her, he will not be there to help his spouse—at least, I do not imagine that he will be. I am surprised that the noble Lord, Lord McCarthy, believes that a person should be given the pay under those circumstances. The payment is not made simply because a man has fathered a child; it is made because he has a role and has time off in order to help with the child. That is my very simple view. If the noble Lord believed that the amendment concerned a matter of morality, then I am afraid that I did not explain it clearly. It does not concern morality.
Lord McCarthy: The noble Baroness tries to explain the position but she makes it worse. Simply because a person leaves the nest does not mean that he does not help. Millions of ex-spouses—some who never married—are absent and perhaps far away, but they do help. Unless one is going to be a moral policeman, one cannot try to distinguish between one group and another.
Lord Henley: Perhaps these matters will be dealt with ultimately by the section which I asked about during debate on the first series of amendments but in response to which I did not receive a proper explanation. The regulations referred to in new Section 80A(5),
- "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".
5.15 p.m.
Lord McIntosh of Haringey: I say to all noble Lords who have taken part in this debate that they are talking about entitlement. Whether they believe that the father should be entitled if he does not live with the mother, or whether they believe that it should be the other way round, they are still talking about entitlement to paternity pay. This clause is not about entitlement; it concerns powers to require information. Therefore, if I may respectfully say so, both sides of the argument are misconceived.
Clause 10 is very important in that it provides the necessary backstop for dealing with that small minority of individuals or employers who do not wish to co-operate. In the experience of the Inland Revenue, most employers, and most individuals, comply voluntarily with their obligations. However, sometimes that does not happen; sometimes things go wrong and need to be looked at more closely. When that happens, the Inland Revenue will need to ask people for information in order to sort things out. This clause enables the Inland Revenue to do just that.
The amendments concern the use of the phrase "has been" when referring to a former partner or employer respectively. I understand that none of us wants to give Inland Revenue officers the power to dig around and ask questions of people who are not relevant to the matter in hand, whether they are partners or employers. I quite agree with that concern. It would be a great infringement of privacy to go back to, say, an ex-wife and ask questions about her former husband's new relationship. That is not the intention of the power and there is a safeguard on the face of the Bill to prevent that. I shall explain how that happens.
The overriding principle set down in subsection (1) of Clause 10 brings in the word "reasonable". The information must be "reasonably required" in order to check whether there is entitlement to statutory paternity or adoption pay. This provides an important safeguard in that an Inland Revenue officer must have very good grounds for supposing that the person from whom he wishes to obtain information has information relevant to the matter in hand—indeed, that it is critical to the matter in hand.
However, if the Bill were drafted in the way set out in the amendments, an additional and unnecessary step would be imported into the process. The officer would have to prove the former partner's or employer's status at a specific time. That would simply be unworkable and, indeed, it could form part of the dispute. An employer could argue that an employee left his employment on a date before the entitlement to statutory paternity pay started, or the employee could say that he was still employed. In order to sort that out, the Inland Revenue officer would need to look at payroll and personnel information. However, the employer could refuse to co-operate by maintaining that he was not the employer at the time of the entitlement. Members of the Committee can see the circularity that one might get into if these amendments were included in the Bill.
Therefore, the amendments are neither necessary, because the effect is already achieved by the drafting of the clause, nor workable, because they would import this additional complexity into the Bill. I hope they will not be agreed to.
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