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Lord Northbourne: My Lords, I am most grateful to the Minister. I am always sceptical about consultation, especially when I have not been consulted. I wonder whether the Minister could arrange for me to have the relevant documentation and I will express my views to the consultation, although I dare say it will not make much difference.
The noble Lord omitted to comment on one of the points I made, which was that this proposal would increase the number of fathers who would take up parental responsibility. Different definitions can cut both ways. The definition of parental responsibility in the 1989 Act is the key definition of a father. It would be much better if the Government did not keep introducing in new legislation definitions of "father" different from those used in the Child Support Agency and Anti-social Behaviour Acts. We now have four or five different definitions of a father, which is helpful neither to us nor to fathers.
Lord McKenzie of Luton: My Lords, perhaps I may reiterate a point. Our concern is that using this definition would potentially restrict the number of people who could benefit from these arrangements. For good or ill, we already have the definition in respect of ordinary paternity leave and pay. Our concern is that if that were the key criterion, because of the practicalities in some circumstances it would be a more restrictive test. It is quite probable that parental responsibility will align itself with the current definition over a whole range of circumstances and there will be no difference, but to require this technical provision is, we think, potentially restrictive.
Lord Northbourne: My Lords, I can see that I am not going to win the argument. The final point I want to make is that I would be most grateful if the Minister could let me see the document the person will have to sign. Everything is in the detail here. If the person is committing himself to a long-term relationship, I would have no further problem with this. In the mean time, I beg leave to withdraw the amendment.
"( ) Regulations under this section shall provide for the mother to provide written confirmation that the person claiming additional paternity leave has satisfied the conditions in subsection (1)(b) and (c) and is the only person claiming it; and the employer concerned shall be entitled to rely on that confirmation without being required to make further enquiries as to the matters in subsection (1)(b) and (c)."
The noble Baroness said: My Lords, this amendment seeks to provide a partial definition of who is entitled to what the Bill calls "additional paternity leave", especially for the enlightenment of the employer, a point I shall explain later. In moving a
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similar amendment in Grand Committee, I made the point that while the old proverb tells us that it is a wise child who knows its own father, an employer needs to be far wiser to know which of possibly more than one putative father qualifies for the benefit of additional paternity leave.
It is not difficult to envisage a scenario where the mother is not actually living with the father of the child or where the biological father is not the one performing the parental duties laid down in subsection (1). In his response to my amendment and to a similar one proposed by the noble Lord, Lord Northbourne, the Minister acknowledged the need for a clear definition of the person who is to be the beneficiary. But he went on to insist that,
I am by no means convinced that that would be the best approach, but given the Government's predilection for bringing forward skeleton legislation fleshed out by regulations, we have to make do with what is on offer.
I have absolutely no doubt that skilled parliamentary draftsmen in the DTI will be able to produce an elegant, cast-iron, waterproof and totally unambiguous definition of who is entitled to claim the benefit, but that is not the problemor rather the dual problems that this amendment seeks to address. As drafted, the clause looks at the matter only from the point of view of the claimant. However, in theory more than one person could seek to claim the benefit, but of course only one could rightly be doing so. How is the employer to know what his employee is properly entitled to? How are two separate employers who do not know each other, or even of each other's existence, to know that two separate claims are being made by two different people? One claim could state, "My wife has just had a baby", without disclosing that the couple have since separated. Another claim could state, "My partner has just had a baby", without disclosing that the biological father was carrying out the duties laid down in subsection (1). There are several such permutations that we do not need to discuss now, but the simple fact is that the employer does not have the means of verifying the validity of the claim, nor should the onus of doing so be put on the employer. That would include verifying that the claimant is actually performing the qualifying duties.
The second aspect of this amendment would ensure that an employer who has granted additional paternity leave in all good faith does not find his claim for reimbursement rejected by the Government when their computer discovers that there are in fact two claimants.
"the mother could not confirm the length of service a father had provided to their employer, or provide confirmation of the father's earnings, which are also eligibility criteria".[Official Report, 9/3/06; col. GC 343.]
This simple amendment resolves both objections. The mother will provide a simple certificate, presumably in a form prescribed by the intended regulations which could, for example, say, "I, ABC, hereby certify that Mr XYZ is responsible for the upbringing of my child, PQR, born on such-and-such a date. I also confirm that this is the one and only such certificate that I have given in relation to this child". I am reminded of the story of a Victorian barrister who drafted a defence in a paternity case, in which he pleaded that,
The noble Lord, Lord Northbourne, expressed considerable concern both in Grand Committee and in a later letter to the Minister about the problem of identifying a legitimate claimant to the benefit; I entirely concur with him on that. Indeed, the Minister's colleague in the other place, Meg Munn, the Minister for Women, admitted in an article in the press that, as things stand, the whole concept of extra paternal leave is a possibly fruitful field for fraud. As things stand, we still have no assurances about solving this problemwhich, as I have said, is fully acknowledged by the Governmentexcept for the promise that it will be dealt with in some future regulations.
In a welfare system which has shown itself prone to all the frauds that ingenious minds can devise, we should not accept the existence of yet another open door. In this case, "jam tomorrow" is not acceptable. By now, the Government have had ample time to come up with a concrete proposal to solve the problem which they acknowledge exists. Amendment No. 3 substantially reduces the risk of such fraud, especially if the prescribed form of certificate includes a warning, in bold red ink, of the consequences of issuing a false certificate.
I repeat; this amendment does not diminish the right to additional paternity leave. It does not interfere with or even modify any definition that the DTI may produce of the qualification of such leave. It does not require the mother to investigate the qualification of the person carrying out paternal duties vis-à-vis his employer, nor does it require the employer to make any inquiries about the domestic arrangements of the motheror even about her relationship with the claimant. In other words, as the Minister requested, it is the essence of simplicity, which I have no doubt will be appreciated by employers and fathers alike. Only yesterday, I received supportive comments on this amendment from, on the one hand, Working Families and, on the other, the Federation of Small Businesses. I beg to move.
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