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Standing Committee F
Thursday 10 January 2002
[Mr. David Amess in the Chair]
Mr. Philip Hammond (Runnymede and Weybridge): On a point of order, Mr. Amess. It has been drawn to my attention that although, like all my colleagues, I was ultra-cautious on Second Reading and declared an interest as an employer, I have not routinely declared that interest during our proceedings. Nor, in tabling amendments, have I declared any interest in relation to them, so I should like to place on record that I am not trying to conceal my status as an employer. I suspect that many other members of the Committee share that status, in both a parliamentary and non-parliamentary capacity. If I have erred in any way, I stand to be corrected. The purpose of my statement is merely to ensure that everyone is aware that I am an employer, although I should point out that that status has in no way influenced my amendments or comments.
The Chairman: I have listened very carefully to what the hon. Gentleman has said, and I advise him and other hon. Members that if they have any concern in this regard, they should direct their inquiries to the Registrar.
Mr. Hammond: I beg to move amendment No. 125, in page 2, line 36, after 'pregnancy', insert
'(in which case reference in this section to the date of the child's birth shall mean the date of the stillbirth)'.
Amendment No. 125 seeks to clarify a simple issue. In referring to the birth of a child in computing the date on which paternity leave commences, the Bill also deals with stillbirth, and rightly provides that paternity leave is applicable in such cases, not in order that care be provided for the child, of course, but so that support can be given to the bereaved mother. However, it is not clear that the reference to the date of a child's birth embraces the date of a stillbirth. The amendment therefore seeks to clarify the matter by making it explicit that in the case of a stillbirth,
''the date of the child's birth shall mean the date of the stillbirth''.
In preparing the amendment, I looked at the Social Security Contributions and Benefits Act 1992, particularly the section on entitlement to maternity pay, thinking that that might provide some guidance. Under that Act, which the Bill amends in substantial part, statutory maternity pay relates to notification of an expected date of confinement. In responding to the amendment, it would be helpful if the Minister could clarify the wider issue. Although I have read part XII of the 1992 Act, I am still unsure whether maternity pay for the full maternity period is not provided in the case of a stillbirth. The Act appears to make notification of an expected date of confinement the
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determining factor, but, so far as I can see, it does not refer to the outcome of that confinement.
It would appear that, where someone expects their confinement to commence on a certain date, notifies their employer accordingly, but unfortunately suffers a miscarriage after the date of that notification, nothing in the Bill will prevent them from being entitled to a full period of statutory maternity pay. That point is wider than the amendment, but relevant because the Bill—in this clause, and elsewhere—deals with things that are contingent upon a child's birth.
Perhaps the Minister will say that regulations have been made under section 164(9)(a) of the 1992 Act, which deals with special circumstances in which statutory maternity pay will not apply, and, if he does, perhaps that regime should be translated into the Bill. However, I will listen to the Minister. No point of principle is at issue; it is just a matter of clarifying the intention behind the Bill and seeking the Minister's reassurance that it does what it should.
The Minister for Employment and the Regions (Alan Johnson): Good morning, Mr. Amess, and a happy new year to you.
I fully understand the concerns of the hon. Member for Runnymede and Weybridge (Mr. Hammond). There is no difference between us; we agree that the right to paternity leave should apply in cases of stillbirth. The Government are confident that the Bill will achieve that. I checked last night and this morning that that is so, but I shall do so again.
To clarify the hon. Gentleman's point, section 171 of part XII of the Social Security Contributions and Benefits Act 1992 states:
''In this Part of this Act—
(a) labour resulting in the issue of a living child, or
(b) labour after 28 weeks of pregnancy resulting in the issue of a child whether alive or dead''.
Mr. Hammond: That means that, in the absence of regulations prescribing circumstances under section 164(9)(a), a woman who went into labour and had a stillborn child will be entitled to 26 weeks of maternity pay. Although one would have every sympathy in such a case, the purpose of maternity pay is to allow people to take leave to care for a child and that does not apply to the case of a stillborn child. Would maternity pay apply for the full period in that circumstance?
Alan Johnson: I am fairly confident that that is the case, but I shall take a raincheck. We are trying to make paternity leave and pay apply in the case of a stillborn child. Both sides of the House want to ensure that that happens and we will re-check the drafting to ensure that it meets that objective. Maternity pay is to allow for maternity leave, which protects the health and safety of the mother. Under the circumstances that have been described, leave would still be required for that.
Mr. Hammond: This is an important point because later in the Bill we will be extending the right to maternity leave to one whole year. I suggest that when a live child is not produced, a year's leave is grossly excessive to protect the health of the mother.
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Obviously, that is a traumatic circumstance, but it is not the same as the birth of a child who needs to be cared for. If the same pay and leave are available to the mother of a stillborn child and the mother of a living child, the proposed extensions in the Bill need to be reviewed.
Alan Johnson: We shall review that. My understanding is that pay is extended under the Bill, but not leave. However, I shall check to ensure that that is correct and put the record straight in correspondence or at a future sitting of the Committee.
Mr. Hammond: I have not heard what I hoped would be a layman's guide to the complexity of the drafting, taking me through the steps by which the reference to the date of a child's birth could be construed to be the date of a child's stillbirth. However, someone has convinced the Minister that that is so. I have tried to construct that conclusion from the definition in the clause of newborn child, but it is a tortuous process. I was hoping that the Minister would throw more light on it. However, there is no difference of principle and the purpose of tabling the amendment was to draw the Minister's attention to the matter. I am sure that he will ensure that it applies properly in the circumstances we are discussing. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn
Mr. Hammond: I beg to move amendment No. 108, in page 2, line 39, at end insert
'who is a person with whom a child is placed, or expected to be placed for adoption under the law of any part of the United Kingdom'.
The Chairman: With this it will be convenient to take the following amendments: No. 109, in page 2, line 42, leave out paragraph (b).
No. 110, in page 3, line 1, leave out paragraph (c).
No. 111, in page 3, line 4, leave out from 'supporting' to end of line 5 and insert
'another person who is also a person with whom the child is placed or expected to be placed for adoption under the law of any part of the United Kingdom'.
Mr. Hammond: This substantive point is a little complicated, so I hope that the Committee will bear with me. The amendments together seek to change the circumstances in which someone would be entitled to paternity leave in the case of adoption. I do not want anyone to think that this is a complex argument about trying to exclude same sex adoption couples, and so on. That is a different debate, which we shall not have today.
I take it that the proper intention of the provision is to deal with any pair of adopters when one will be entitled to adoption leave and the other, regardless of gender, will be entitled to paternity leave. I do not want to discuss whether that is a bizarre use of language, but that is what the Government intend. However, the Bill states that a person could be entitled to paternity leave as a result of their relationship with a person who is an adopter. In other words, a person
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who is not officially part of the adoptive couple could be entitled to paternity leave.
Some Committee members are experienced in matters concerning the adoption process and may have something to say about this, but the adoption process involves a significant number of checks to ensure that the person or people who will adopt and care for a child are appropriate and that the child's safety will be assured. The Bill seems to contemplate that a person who has not been vetted and approved as an adopter will be endorsed by the state by the granting of statutory paternity leave to care for the child because of a relationship with a person who has been so vetted and approved. We do not want to endorse people as carers of a newly adopted child if they are not officially the adopters. That is an important point.
In the vast majority of cases, one would expect the person taking adoption leave to be the woman and the person taking paternity leave to be her husband, or her partner if the couple are not married. The same situation will apply in relation to same sex couples. One person will be entitled to adoption leave and one person will be entitled to paternity leave. However, I should have thought that both should be joint adopters of the child. The provision could grant paternity rights at the moment of the placement to someone who is, as it were, not on the ticket. That alarms me.