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Standing Committee F
Tuesday 15 January 2002
[Mr. David Amess in the Chair]
Amendment proposed [this day]: No. 143, in page 12, line 14, leave out from 'work' to end of line and insert
'for a period equivalent to an ordinary adoption leave period, commencing on any date not earlier than 20 days prior to placement and not later than the date of the placement or such period, or periods (being less in aggregate than an ordinary adoption leave period) as he and his employer shall agree in writing.'.[Mr. Hammond.]
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking amendment No. 144, in page 13, line 3, leave out from 'work' to end of line and insert
'for a period equivalent to an ordinary adoption leave period, commencing on any date not earlier than 20 days prior to placement and not later than the date of the placement or such period, or periods (being less in aggregate than an ordinary adoption leave period) as he and his employer shall agree in writing.'.
The Minister for Employment and the Regions (Alan Johnson): When we adjourned, I was concluding my remarks on the amendments. I had explained that they were misguided because they would include in the Bill matters best left to regulation, and I was dealing with the issue of employees and employers having the right to modify statutory rights. I said that it would be wrong to imply in legislation that discussions in the workplace could lead to employees somehow signing away their statutory rights. I do not say that that would be a common occurrence, but it could happen, and we need to guard against it. The amendment is therefore misconceived, and I invite the hon. Gentleman to withdraw it.
Mr. Philip Hammond (Runnymede and Weybridge): I am grateful to the Minister for clarifying the start date, as the purpose of the amendment was to probe the Minister on that. I suggested 20 days; he assured me that the Government intend 14 days. The pair of us would have been hopeless in the first world war, because neither of us is prepared to die in a ditch over small arguments. I certainly shall not do so for the sake of six days.
In respect of how leave is to be taken, I accept the Minister's argument that the Bill reflects maternity leave provision and that adoption leave will in practice represent only a tiny percentage of maternity and adoption leave cases. If I were in his seat, I too would argue plausibly that it was inappropriate to reopen discussion.
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If I have understood the Bill correctly, it is possible for an employee, without the agreement of the employer, to duck in and out of work at any time during the adoption leave period. That is rather unsatisfactory. However, even if the Minister, in a moment of madness, were to say to me, ''Yes, I agreewe'll change the provision in respect of adoption leave'', it would not take us much further forward, because the greater issue is maternity leave. I have no idea whether there will be a problem in practice.
I am grateful to the Minister for clarifying matters, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Hammond: I beg to move amendment No. 145, in page 14, line 8, at end insert
'(4) Regulations under section 75A or 75B shall provide that a person suffer no detriment by virtue of taking ordinary adoption leave but shall not be protected from any detriment that he would have suffered had he not been taking ordinary adoption leave.'.
The amendment deals with a matter that we have before discussed slightly differently. The Bill provides for regulations to deal with resumption of employment, seniority, pension rights and so on, but it does not state what principle will be followed in making those regulations. I understand the principle involved to be that no detriment should be suffered, but equally that being absent should not gain an employee any advantage over colleagues who were present at work and not taking adoption, paternity or maternity leave. An additional subsection has been inserted to allow the Minister to say that that is so and to tell the Committee how, in practice and in principle, the Government expect the provisions to work.
Alan Johnson: The amendment seeks, first, to provide safeguards against a non-existent problem. Detriment is dealt with in schedule 6(24), which will amend section 47C(2) of the Employment Right Act 1996, so that employees who exercise their right to ordinary or additional adoption leave do not suffer detriment as a result.
The other point that the hon. Gentleman raised was the case, for example, of someone due to be disciplined for a misdemeanour and the fact that the person is on maternity, paternity or adoption leave should not prevent the disciplinary process from proceeding. People should not suffer detriment on issues that are entirely unconnected with the leave. That does not have to be written into the Bill, because the 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 on issues entirely unrelated to adoption, paternity or maternity do not have to be in the Bill as they are already there by omission. The 1996 Act cites circumstances such as whistleblowing or study leave where no detriment will be suffered by the employee and we have specifically followed the architecture of such legislation. The individual cannot suffer detriment for taking leave. That is written into paragraph 24 of schedule 6. The fact that other issues
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not related to leave are not mentioned means that employers are entitled to treat those employees in the same way as others.
I hope that, with those assurances, the hon. Gentleman will seek to withdraw the amendment.
Mr. Hammond: The Minister has helpfully drawn attention to the relevant schedule. I am sorry that I had not spotted it myself. He reassures us that the provision works in the way that I think we understood it was intended to work and he has explained why a reference in the Bill is not required. I am grateful, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Hammond: I beg to move amendment No. 146, in Clause 3, page 14, leave out lines 28 to 31.
The amendment would exclude paragraph (g) from new section 75D, a section that allows the Minister to modify or apply any enactment with such modifications as he believes appropriate. As before, I have tabled the amendment to probe the Minister about the circumstances he has in mind for modifying other enactments. Giving Ministers a power to amend an Act by regulation is a serious matter. We need to scrutinise it carefully, and it would be useful, and not unusual, for me to ask the Minister what he has in mind under the powers that he is giving himself.
Alan Johnson: Although this is a probing and technical amendment, it would have very serious consequences that I should perhaps explain. Last week, in the context of amendment No. 122, we discussed a precisely analogous provision in respect of paternity leave. Such provisions appear frequently in legislation. For example, identical provisions for maternity leave and parental leave are included in the Employment Rights Act 1996. In effect, such a power enables us to consider the interaction between the new rights that we are introducing and provisions in existing and future law. Any tension or conflict in the detail of the two areas of law enables us to deal with the issue through regulation. It is clear that it could be disproportionate to use primary legislation to deal with matters that might prove relatively trivial.
Almost by definition, it is not possible to be precise about how we might use the power. If we were aware of every provision that needed amending, we would have included all the necessary amendments in schedule 6, or elsewhere in the Bill. Regulation 22 of the Maternity and Parental Leave Regulations 1999, which provides for the treatment of weeks of leave for the purposes of calculating a week's pay for an employee, is a good example of how we might have used the power. The week's pay that is thus arrived at is used, where necessary, in calculating redundancy or unfair dismissal compensation, and for various other purposes.
As it happens, we spotted this issue and we have made specific provisions, but even if we had overlooked it, the fall-back provision would have allowed us to deal with it. There is no better example
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of how we might use the power than the amendment tabled by the hon. Member for Runnymede and Weybridge (Mr. Hammond) in the light of a Law Society briefing on the interconnectedness of paternity leave and working time regulations. As I said, I was not aware of any tensions arising in respect of maternity leave provisions, but I undertook to study the Law Society's views in more detail. I confess that I have yet to find the time, but if an issue needs to be tackled, subsection (1)(g) will allow us to do so.
A final and important example is the Adoption and Children Bill, which is currently passing through the House. That legislation does not allow unmarried couples jointly to adopt, but it might conceivably do so at some point. Were it to do so after the Employment Bill had received Royal Assent, there might be technical implications for the framework of adoption leave. Subsection (1)(g), which the hon. Gentleman seeks to remove, would allow us to take account of that interaction.
I hope that I have given some examples of why we need the provision. It has served us well in respect of other legislation, and I hope that the hon. Gentleman will withdraw his amendment.
Mr. Hammond: I understand the attraction, from the Government's point of view, of having wide, catch-all powers to change other enactments or to modify their application. It is rather disconcerting, however, to hear the Minister admit openly that they want those powers in order to avoid having to bother to find out the precise ramifications of legislation for which they seek Parliament's approval.