Employment Bill

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Mr. Hammond: I beg to move amendment No. 115, in page 3, line 40, after '80A' insert 'and 80B'.

The Chairman: With this we may discuss the following amendments: No. 114, in page 4, line 11, leave out 'maternity leave' and insert 'leave under section 80B'.

No. 116: in page 4, line 14, leave out subsection (3).

Mr. Hammond: The amendment seeks to change the language of new section 80C. There is both a stylistic and a substantive purpose in this. The section reads in line 40:

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    ''Regulations under section 80A shall provide''.

It goes on to list a series of ensuing provisions. Subsection (3) reads:

    ''Subsection (1) shall apply to regulations under section 80B as it applies to regulations under section 80A''.

I am not sure what that subsection adds to the Bill's meaning that would not be more economically provided by inserting the reference to section 80B in line 40 so that it read:

    ''Regulations under section 80A and section 80B shall provide—„''.

Norman Lamb: I have a drafting point. Does the hon. Gentleman accept that if one were to proceed with his proposed amendment, paragraphs (a) and (b) of new subsection 80C(1) would also have to be amended because they refer to ''that section''?

Mr. Hammond: If the hon. Gentleman had tabled vast numbers of amendments, I would forgive him for chastising me for not staying up all night to work out all the consequentials. Since these are probing amendments, I have decided to adopt an economical approach and table a substantive amendment to probe the Minister and leave it as unspoken that a series of consequentials would be required. However, the hon. Gentleman is quite right.

I would like the Minister to clarify a specific point. Section 80C(2) does not refer to leave under new section 80B. It contemplates a situation where absence on leave

    ''includes, where appropriate, a reference to a continuous period of absence attributable''

to different reasons: maternity leave, adoption leave, parental leave and paternity leave in the case of birth. It does not appear to contemplate a period of leave being calculated as continuous in conjunction with a period of leave under section 80B. If a parent were to adopt a child, then another child, that parent would be able to claim paternity leave in respect of two adoptions—I am getting myself into a twist, rather as in the Minister's famous experience with his underwear. Subsection (4) clearly provides for leave under new section 80A to be recognised as one class of leave that may be considered in calculating a period of continuous leave. Subsection (2) does not reflect that because it does not provide that leave under new section 80B would be considered in calculating a continuous period of absence, and it is not obvious to me why that is the case.

I also have a problem with the Bill's abuse of the English language. We are invited to assume in subsection (2)(a) that someone claiming a period of paternity leave could, for the purposes of the Bill, have his continuous period of absence calculated by taking that period of paternity leave as continuous with a period of maternity leave. I understand how it is logically possible within the construction of the Bill for a person to have X weeks of maternity leave immediately followed by X weeks of paternity leave. That is, however, a horrible abuse of the English language. When our language, which is probably the most flexible ever invented, cannot easily accommodate the Government's intention, that ought to sound an alarm bell in their mind and

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suggest that there is something wrong with trying to persuade us that someone who is entitled to maternity leave in one week might equally be entitled to paternity leave in the following weeks. That use of language sticks in the gullet.

Alan Johnson: The amendments are minor drafting changes that we consider to be unnecessary. Amendments Nos. 115 and 116 propose altering the drafting to incorporate subsection (3) of new section 80C within subsection (1). That would mean stating in subsection (1) that regulations under new sections 80A and 80B concerning paternity leave for newborn children and for children newly placed for adoption respectively will address the contractual terms which apply to an employee on paternity leave and to their right to return from paternity leave.

We intend that rights for paternity leave will reflect the rights that apply to women while on, and returning from, ordinary maternity leave. As paternity leave is for a maximum of two weeks, we intend that an employee will entitled to all contractual benefits except wages or salary while taking one or two week's paternity leave. We also intend that an employee will have the right to return to the same job following an absence of one or two week's paternity leave. It is important for me to set that out for the record because the hon. Gentleman's points do not challenge that principle.

Amendments Nos. 115 and 116 would alter the way in which the Bill is drafted. The hon. Gentleman made it clear that subsection (3) contains the reference that he seeks to write into new section 80C(1). Although it makes no difference where that reference is placed, the drafting is robust and the parliamentary draftsmen believe its present position to be the best way to cover that point.

Amendment No. 114 concerns subsection (2), the purpose of which I should like briefly to explain. The introduction of the right to paternity leave will create new situations that simply do not occur at the moment. For example, the new right to paternity leave may be taken as part of a consecutive period together with parental leave. Parental leave may be deferred by the employer if it is not convenient for the company and that is always so except at the time of the birth. When fathers take unpaid parental leave—there is not a huge take-up—they take it at the time of the birth. Those two periods of leave could run together and subsection (2) with subsection (4) allows us to address the implications of new situations.

Amendment No. 114 partly covers the specific situation when a parent takes paternity leave relating to a new-born child and paternity leave relating to a child placed for adoption. That was the example given and I shall come to the English language point later. The amendment is unnecessary because situations in which both sorts of leave are taken as part of the same period is covered in subsection (4). It would be an unnecessary duplication to include a similar provision in subsection (2). The hon. Gentleman also proposed the removal of provisions covering periods of paternity leave relating to a newborn child and maternity leave. I admit that at first sight that seems odd. A mother cannot also be the father of the same child, but

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subsection (2) allows us to address all possible new situations. Eligibility for paternity leave will be set out in regulations specifying the relationship with the child and its mother or adoptive parent. We shall consult on the regulations before finalising them, but the fundamental criterion will be that the person taking paternity leave should have responsibility as a parent of the child. We want to ensure that the right is available to the mother's partner provided that the partner is a serious one and will play an effective parenting role. A definition along those lines usually means that the child's biological father will qualify and that is what we all expect, but we would not expect the regulations to rule out other partners, provided that they satisfy the fundamental test that they are serious and not casual partners and will be playing a real parental role.

Mr. Hammond: I am interested in the Minister's last words, because I thought that the Committee had concluded at our previous sitting that it would be well nigh impossible to police any such test. The Minister's aspiration is sensible and logical, but in practice he will be unable to test it and enforce it.

The Minister left me behind with his explanation of why there is no need for a reference to leave under new section 80B(2). There is reference to adoption leave but not to paternity leave in the case of adoption. It is not clear to me why, when calculating a continuous period of absence partly attributable to leave under new section 80A, it is necessary to refer to adoption leave but superfluous to refer to paternity leave in the case of adoption. It seems to me that both should be covered and the Minister has not yet convinced me that they are. Perhaps he would go over the point again, because I did not understand it.

Alan Johnson: Subsection (4) states:

    ''In the application of subsection (1)(c) to regulations under section 80B''—

that is the important point

    ''the reference to absence on leave under that section includes . . . ''

The hon. Gentleman raised an important point, but his amendment would create duplication because the matter is covered in subsection (4), so it is not necessary. We are discussing situations when both sorts of leave are taken as part of the same period, which is the point that we are seeking to cover. The clause seeks to protect the rights of employees who take that leave to have the same terms and conditions when they return from that leave. We are discussing the protection of those rights, as in the case of maternity leave. That is covered in subsection (4) and it is unnecessary to have duplication in subsection (2).

On the point about Fowler's ''Modern English Usage'', I should like the matter to be a little clearer but it is difficult when we are discussing women taking paternity leave. If the principle is accepted that we want adoptive parents to be in the same position as parents of children who are born to them, one should be able to take adoption leave, which is the equivalent of maternity leave, and one should be able to take paternity leave. The provision must be drafted in that way to cover same-sex couples in particular. We have

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left it to the adopting couple to decide who takes which. The situation is different and there are no health and safety implications when natural childbirth is not involved.

If the principle is accepted, we must have some licence because it is difficult when drafting regulations to make those points other than in a long series of paragraphs and sub-paragraphs. I accept the hon. Gentleman's point about clarity of language, but I hope that he accepts that we have done our best with the complicated situations that could arise. I ask the hon. Gentleman to withdraw the amendment.

10.30 am

 
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