Employment Bill

Public Bill Committee, 10 January 2002.

Standing Committee F

Employment Bill

Philip Hammond (Conservative, 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.

Sir David Amess (Conservative, Southend West)

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.Clause 1 Paternity leave

Clause 1 - Paternity leave

Philip Hammond (Conservative, Runnymede and Weybridge)

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

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.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

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—

'confinement' means—

(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''.

Philip Hammond (Conservative, Runnymede and Weybridge)

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 (Labour, Kingston upon Hull West and Hessle)

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.

Philip Hammond (Conservative, Runnymede and Weybridge)

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.

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 (Labour, Kingston upon Hull West and Hessle)

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.

Philip Hammond (Conservative, Runnymede and Weybridge)

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

Philip Hammond (Conservative, Runnymede and Weybridge)

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'.

Sir David Amess (Conservative, Southend West)

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'.

Philip Hammond (Conservative, Runnymede and Weybridge)

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

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.

Joan Humble (Labour, Blackpool North and Fleetwood)

The hon. Gentleman raises an interesting point. From my recollection of adoption legislation, all adults in the household where the child is to be placed for adoption are vetted, even if they are not formally the prospective adopters. For example, in a co-habiting couple in which the mother comes forward to adopt, her partner would be another adult who would be vetted but would not be the adoptive parent. I am trying to imagine how a circumstance could arise in which the hon. Gentleman's fears could be realised. Given that all the adults in a household are vetted, does he think it possible that someone outside the household could apply for parental leave because of their relationship with the child to be placed for adoption?

Philip Hammond (Conservative, Runnymede and Weybridge)

The hon. Lady makes a helpful intervention, in which she may have identified the germ of the solution to the problem. If we can be assured that regulations will ensure that only a person who has been through the vetting process will be entitled to paternity leave as a carer of the child, that would deal with the issue. Perhaps the Minister can explain how the provision will work in practice, then we can judge whether I have identified a real problem or whether the solution lies in the Bill.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

First, let us be clear that the effect of the amendments would be to deny the partner of an individual who adopts a child the right to paternity leave.

I shall explain our plans under clause 3, which we will discuss later today. Only one parent will be able to take adoption leave when a child is adopted.

Therefore, when a married couple adopts only one partner will be eligible for adoption leave, with the adoptive mother and father able to choose which of them takes adoption leave and which of them takes paternity leave. That reflects as closely as possible the situation of the parents of a newborn child. The hon. Gentleman is absolutely right about our intentions in that respect.

However, under existing law it is not possible for unmarried couples to adopt a child together. I am not talking about same sex couples, but couples in a longstanding relationship who have chosen not to marry. Therefore, when an unmarried couple wishes to adopt, one partner must adopt the child individually. That adopter will be entitled to adoption leave. It is important to recognise that such individuals may be in a long-term relationship, but have simply chosen for their own reasons not to marry.

The effect of the amendment would be to move away from that approach to paternity leave relating to newborn babies, which would exclude the other partner in unmarried couples from the right to paternity leave. That would mean a difference between childbirth and adoption, which both the Committee and the hon. Gentleman will agree would be wrong.

In most cases couples adopt children, but individuals can and are increasingly doing so. Indeed, we seek to encourage that by taking forward the proposals in the Adoption and Children Bill. It is right that we extend the new right to paternity leave to offer support to all families with newly placed children.

Philip Hammond (Conservative, Runnymede and Weybridge)

I regret that I am unfamiliar with the details of the Adoption and Children Bill, although I was a shadow health spokesman. Does that Bill provide for joint adoption by unmarried people? If so, does the Minister envisage that the regulations under new section 80B(1) would be different if it reaches the statute book?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I am not conversant with the details of that Bill, and many other Bills, but on Second Reading the Secretary of State said that he welcomed a debate on the issue. He also said that while the Government consider that the proposals being taken forward in the Bill are broadly right, they will consider carefully the evidence heard at the Special Standing Committee, and that while the Government have made no changes to the current draft, by sending the Bill to a Special Standing Committee they are providing an opportunity to hear a wide range of evidence, and to debate that and other issues. Whether the Bill reaches the statute book, at the moment individuals can adopt children. As my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) rightly said, the whole of the household is vetted.

At this stage, all adoption groups entirely support these proposals, as does the Department of Health, and the proposals have been overwhelmingly endorsed by the experts. We must have safeguards to ensure that leave is available only to parents when a child is placed for adoption through the approved process, which includes going through an approved adoption agency.

All the vetting procedures to which my hon. Friend referred are written into new section 80B(1), which ties the right to paternity leave into the relationship with the child placed for adoption and the child's adoptive parent. New section 80B, together with the new right to adoption leave, is an important step forward. It is only right that in moving forward we include all parents, including unmarried couples, who offer a loving home to such children. I hope that on the basis of those assurances the hon. Gentleman can withdraw the amendment.

Philip Hammond (Conservative, Runnymede and Weybridge)

That was genuinely helpful, and betrays my woeful ignorance of the current state of adoption law. The Minister's comments explain the need for the provision and the helpful remarks by the hon. Member for Blackpool, North and Fleetwood provided some reassurance. It would be a further reassurance if the regulations, when they are published under new section 80B(1)(c), specified the relationship with the person in such a way that it required that person to be identified as a member of the household when the pre-placement vetting procedure was undertaken, which would ensure that that person was not someone who happened along after the placement had been agreed. That is something that could be dealt with in regulation. It is a small loophole, but it probably needs to be closed to ensure the fullest possible protection for children.

I have heard the Minister's comment that all consultees appear to favour this wording, but it is still important to probe the impact of the words in the Bill. I regret that after three years as a shadow health spokesman the fact that the Department of Health endorses the provision does not inspire me with a single ounce of confidence. The fact that some outside groups have looked at it gives me rather more. Having listened to the Minister's reassurances and the information imparted by the hon. Member for Blackpool, North and Fleetwood, I beg leave to withdraw the amendment.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I should like to correct an error that I made at the previous meeting. The hon. Gentleman mentioned the proposed regulations under new section 80B(1)(b), which govern the relationship with a child placed for adoption. In Tuesday's sitting I made an error regarding the regulations under 80A(1)(b), on the relationship with a newborn or unexpected child. I am afraid I got my Calvin Kleins in a twist. When asked by the hon. Gentleman whether the provision applied to the biological father, I said yes. The hon. Gentleman was surprised, which is unsurprising because I got it wrong. In the majority of cases it will be the biological father. We intend that the person taking paternity leave should be responsible as a parent of the child. It will usually be the biological father but in circumstances that we will all understand, that may not always be the case. I needed to put the record straight on that issue.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am grateful to the Minister. When he made that comment I accused him of being rather more old Labour and rather less new Labour than I had suspected. He has reasserted his status. The unwelcome information about his underwear might further underline it.

Sir David Amess (Conservative, Southend West)

That exchange was most irregular, but we shall gloss over that.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 113, in page 3, line 34, leave out subsection (8).

Sir David Amess (Conservative, Southend West)

With this we may discuss the following amendments: No. 140, in clause 2, page 12, leave out lines 1 to 6.

No. 170, in clause 4, page 20, leave out lines 30 to 34.

Philip Hammond (Conservative, Runnymede and Weybridge)

This group of amendments deals with the same issue in different parts of the Bill. In new section 80(B), subsection (8) permits the Secretary of State to make regulations to apply this section in perhaps modified ways to overseas adoptions not made under United Kingdom law, where there is not a ''placement''. The Bill uses this term extensively but it does not apply to overseas adoptions.

In dealing with the previous amendment the Minister emphasised the importance he attaches to the approval processes being properly undertaken prior to the placement. In our earlier discussions on adoption leave and adoption pay he made reference to the public policy purpose of the provisions, which is to encourage and support adoptive families in order to reduce the number of children being cared for by the statutory authorities or placed in foster homes and to increase the number of children permanently placed with adoptive parents.

I have no doubt that we all agree on that issue, but it is not clear that extending these provisions to parents who go abroad, adopt children and bring them back will necessarily contribute to achieving that public policy objective. That is encouraging the adoption and importation of children rather than the adoption of children in local authority care or foster accommodation in the United Kingdom. The amendment proposes to delete the provisions allowing the Secretary of State by regulation to modify the way in which the enactment works in relation to overseas adoption.

Because of the way in which the Bill is worded, if the Secretary of State did not have the power to modify its provisions in relation to overseas adoption, my understanding is that it would not apply to overseas adoptions because there is no placement as such which would give rise to the entitlement. I should therefore like to hear the Minister's justification for including overseas adoptions in the ambit of his proposed legislation on paternity leave for adoption, and on adoption leave and adoption pay. Although there might be some rationale for that, it would certainly undermine the previously stated public policy of stimulating placement of children who are in local authority care. The Minister himself referred to the economics of that issue at a previous sitting, saying that keeping children in local authority care involved great financial expense while making financial provision to encourage adopters was economic common sense. I agree, but it is clear that that does not apply to overseas adoptions.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

There is something of an issue of principle here. The amendments would remove the right to paternity leave for adoption for those who adopt from overseas, and I hope that the Committee agrees that that would be wrong. It is true that I have argued the economic case, but that is not the be all and end all. We believe in the important principle that all children, whether adopted from overseas or in the United Kingdom, deserve the chance to spend time with, and build relationships with, their new families. Just like children in the UK who come into care, children from overseas have often led fractured and disrupted lives, and a new family and home provide an opportunity to enjoy better life chances.

Joan Humble (Labour, Blackpool North and Fleetwood)

Does my hon. Friend acknowledge that the only way in which people in this country from certain minority ethnic groups can adopt a child from a background similar to their own is to go to another country and obtain a child through adoption processes in that country? At the same time, however, they are vetted for suitability in this country. If we deny them paternity leave that would enable them to look after the child on returning to this country, we will deny them the right of all parents to bond with and spend time with their child. The opportunity to bond is necessary to developing a relationship that will help the child grow to maturity.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

My hon. Friend makes a very important point, of which I was not aware, and it is helpful to have in Committee someone who is well versed in these issues. In such circumstances, adopting from overseas is the only option.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am aware that the Minister does not have departmental responsibility for this matter, but the hon. Member for Blackpool, North and Fleetwood has raised an interesting and perhaps controversial point. The Minister will be aware that a history of controversy surrounds the issue of adoption and race. The hon. Lady appears to suggest that the Government should encourage and facilitate people in seeking to adopt only from a particular ethnic group. Is it not Government policy, however, to encourage cross-ethnic adoption where it is appropriate for the child?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

Yes, it is, but my hon. Friend was simply saying something else. I shall allow her to clarify matters.

Joan Humble (Labour, Blackpool North and Fleetwood)

I do not want the Committee to misinterpret my comments. In the several years that I spent as a member of Lancashire county council adoption panel—I should perhaps declare that interest—certain people sought to adopt a child from another country because they were conscious of their identity as members of certain minority ethnic groups. The Government have never laid down absolute rules, and there have been many successful cross-racial and cross-religious adoptions. The important point is the qualities that the adoptive parents bring to the process and the love and affection that they give to the child. I hope that the Minister agrees that our responsibility is to encourage the nurturing and fostering of that relationship to the benefit of the child. We should do

that whether the child comes to this country from abroad or was born here.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

My hon. Friend touches on the central theme of my argument. We should allow paternity leave for adoptive parents whether they adopt from within the UK or abroad. Very few adoptions—around 300—take place each year in which the children involved are not British nationals. That is not the issue, but it is important to put the point on the record. It is also important to make it clear that we recognise that the process of adoption in other countries is not always as tightly controlled as it is in this country. However, although some parents act irresponsibly, most follow the approved process.

I assure members of the Committee that safeguards will be in place to ensure that paternity and adoption leave and pay will be available only to parents who have followed the approved process, including going through an approved UK adoption agency. Arrangements for intercountry adoptions can vary considerably from those in the UK and from country to country. In particular, the concept of a placement for adoption that is used in the Bill may not apply to overseas adoptions. Therefore, for practical reasons, there will be slight differences between some elements of the provisions for domestic and overseas adoptions.

The Adoption and Children Bill clearly marks the Government's commitment to modernise the entire legal framework for domestic and intercountry adoptions. We are determined to improve the performance of the adoption service and to promote greater use of adoption. With that in mind, the Department of Trade and Industry will continue to work closely with the Department of Health and in consultation with key stakeholders, who have all approved the proposals, to ensure that we get the regulations concerning paternity pay and adoption pay in relation to intercountry adoptions absolutely right.

I hope that the hon. Gentleman will withdraw the amendment. We must ensure that there is not one set of rules for adoptive parents adopting children domestically and a different one for those who adopt from overseas.

Norman Lamb (Liberal Democrat, North Norfolk)

I simply want to stress that the introduction of paternity leave is very much in the interests of children, and it should apply equally to children adopted abroad and to children adopted in this country. That will help parents, especially fathers, to be good parents. The amendment is unhelpful and I would not wish to support it.

Rob Marris (Labour, Wolverhampton South West)

Perhaps I can elucidate the question of overseas adoption for the hon. Member for Runnymede and Weybridge. I have a constituent whose sister lives in the Indian sub-continent. She is dying of AIDS, from which her late husband died, and her life expectancy is limited. Her brother asked me about the possibility of adopting their two young children, because there are no other relatives in that part of the world under the age of 60 who could do so. He wants to adopt, not because he would adopt children only of a certain

ethnic background, but because they are his own flesh and blood.

Philip Hammond (Conservative, Runnymede and Weybridge)

I suspect that in that case the Bill would not apply. The Government have been careful to tell us that it covers arm's-length adoptions—that is, cases involving a genuine new placement and the need for time for bedding in—and not adoptions within a family or a foster relationship. Perhaps someone will correct me if I am wrong.

Rob Marris (Labour, Wolverhampton South West)

I stand to be corrected, but I had not understood that to be the situation.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I do not know. The point raised by my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) shows that we need to be careful to ensure that we get it right when we draft regulations. I am not sure whether that would be classed as an adoption. The Kilshaws, who gained much publicity, would not qualify because they brought into this country children who had been adopted abroad. The provisions apply differently to domestic adoptions and to placements that happen abroad. I am not sure whether family ties preclude the normal adoption procedure.

My hon. Friend the Member for Wolverhampton, South-West raised a good point. We should not accept the amendment on the basis that parents who adopt domestically will have the opportunity of help from the social services in this country and may not have that if they choose to adopt from overseas. My hon. Friend's contribution showed that that would be a difficult principle, and I do not think that the hon. Member for Runnymede and Weybridge wants to go down that road. I hope that he will withdraw the amendments.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am delighted to have the opportunity to clarify my purpose. The Minister referred to having one rule for adopters of children domestically and another for those adopting overseas. However, I am principally concerned to establish one rule for Ministers. When they create an argument in support of their actions, they should create one that applies to everything that they are doing, and not to selective bits. It is no good for the Minister to tell us one day that the good thing about making payments and giving financial and other support to those who are adopting is that it makes economic sense because the cost of keeping children in care is high, and the next, after someone has discovered a bit of the Bill that does not fit, to say that that is not the most important argument after all. I want the Minister to acknowledge that what he told the Committee the other day does not embrace what is provided for in this new subsection. I am happy to acknowledge other good reasons for including the new subsection.

Our exchanges have been useful. It was never my intention that the Minister would accept the amendments, but I wanted to hear about the safeguards that will be in place and an acknowledgement that different motives and agendas existed besides those that he recently outlined to the Committee. I am pleased to have heard the Minister's reassurance that safeguards will be in place and that, although there will be no placement in an overseas

adoption, adoption leave and pay will apply to cases only where there has been an engagement with a recognised UK agency and where the adoption process has been vetted in the UK. That addresses most of the concerns of Conservative Members and deals with much of the scope for abuse of the system.

I may have inadvertently misled the hon. Member for Wolverhampton, South-West with my intervention. The explanatory notes state:

''Regulation will provide that adoption leave will apply only where the child is newly placed with an adoptive parent—it will not apply to step-family adoptions or adoptions by a child's existing foster carers.''

Regulations will detail requirements under the arm's-length principle. I do not suppose that that explanatory note is exhaustive so it will not be clear whether the adoption of a niece or nephew would give rise to an entitlement to adoption leave, paternity leave related to adoption or associated payments.

Perhaps it will be more convenient to ask the Minister about that later when we discuss adoption. Other hon. Members have dealt with ethnic minorities, adoption and overseas adoption in ethnic minority communities, so that question is appropriate. The extended family was once common in our society, but now exists more in some parts of the community than in others. It may be necessary to think differently in different cases about whether the adoption of a niece or nephew should be regarded as an arm's-length adoption and about how it should be treated. I am speaking off the top of my head, but it might be more appropriate to have a subjective rather than an objective test of how close a previous relationship has been to ascertain whether it is an arm's-length adoption. In that case, the adoption of a niece and nephew who live thousands of miles away and may not have had contact would be seen as a genuine arm's-length adoption, whereas the adoption of a niece and nephew living as part of the same extended family group should not be seen as an arm's-length adoption giving rights to leave and pay. I leave that thought with the Minister; I shall not ask him to reply now. When we come to the adoption section, we might usefully debate that point.

Having probed the Minister and apparently irritated him, although that was not my intention, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

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

Sir David Amess (Conservative, Southend West)

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).

Philip Hammond (Conservative, Runnymede and Weybridge)

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:

''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 (Liberal Democrat, North Norfolk)

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''?

Philip Hammond (Conservative, Runnymede and Weybridge)

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

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 (Labour, Kingston upon Hull West and Hessle)

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

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.

Philip Hammond (Conservative, Runnymede and Weybridge)

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 (Labour, Kingston upon Hull West and Hessle)

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

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.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am grateful to the Minister for trying to explain matters. I am still not sure that I have understood the logic of why subsections (2) and (4) do not mirror each other and I shall think about that.

An interesting point about the use of language is that complex situations in which we seek to satisfy conditions becomes almost more mathematical or logical than linguistic, and language serves us poorly. I am reminded of a short period many years ago when I was tortured by having to study formal logic and to present linguistic arguments in the form of formulas. It might be better to try to explain some of the provisions by reference to formulas instead of torturing the English language.

I am grateful to the Minister for trying to explain. I apologise if I am at fault in not understanding, but I shall try to understand what he has said and satisfy myself that symmetry between subsections (2) and (4) is not necessary. If I cannot do that, the Minister will hear from me again on Report.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 117, in page 4, line 26, leave out paragraph (a).

I hope that this is a simple probing amendment. Its purpose is to allow the Minister to explain the meaning of subsection (5)(a), because it is not clear to me. I hope that we shall discover that, again, it is torture of the English language and nothing more. It would be more sinister, however, if the Minister said that non-contractual terms of employment could be enforced when leave is taken. That would be disconcerting. It seems to me that paragraph (a) could imply that something that someone had enjoyed by virtue of their employment but which was not a contractual term of their employment could become a contractual term.

I shall give a flippant example. Someone who worked in Tesco in the High street might have been allowed routinely to park in a valuable reserved parking space while working. Would such a non-contractual but customary benefit of employment continue to be available during the absence? I can think of many perks that are non-contractual but which people, especially in smaller businesses, routinely enjoy when at work. I hope to establish that that is not what the Minister means. If that is

what he means, non-enforceable benefits that people enjoy when working would become enforceable when they were not working. That would be odd and unsatisfactory.

Norman Lamb (Liberal Democrat, North Norfolk)

I entirely agree. The Bill is using extremely tortuous language to refer to terms and conditions of employment, which most people regard as being the contractual terms of employment, as meaning a broader set of provisions than those contained in the contract of employment.

Will the Minister clarify two points? First, is this formulation the same as that used in existing maternity and parental leave legislation? Secondly, what sort of employment provisions are envisaged within the broader definition of the concept of terms and conditions of employment?

Mark Prisk (Conservative, Hertford and Stortford)

I support the amendment. Paragraph (a) is illogical. If it is intended to provide an absent parent with the benefits of the terms and conditions of their employment, where do those terms and conditions exist except in the contract of employment? The deathless term ''matters connected'' is so vague and grey that it is likely to cause more problems than the Minister intends.

My hon. Friend the Member for Runnymede and Weybridge mentioned car spaces. In any place of work, there are informal arrangements between employer and employee. The danger of widening the scope of the nature of arrangements for paternity leave is that it could well deter such informal relationships. Employers will worry that a whole range of ad hoc arrangements will suddenly be drawn into the statutory arena.

Will the Minister define exactly what ''matters connected'' means? If he cannot, does not that underline the need to withdraw the paragraph?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

We are not always able to make such definitions, but we need to include the paragraph because it exactly mirrors the clause on maternity leave. As always, we have sought to reflect existing legislation. As far as we are aware, employers are generally happy about it.

I shall deal with the specific examples that hon. Members gave. The point of the provisions is that employees can come back to work and not lose non-contractual rights and privileges. In terms of car parking, they might not have a specific space, but be entitled to use the company car park. The hon. Member for Runnymede and Weybridge asked whether they could use it during the period of leave.

Norman Lamb (Liberal Democrat, North Norfolk)

The Minister mentioned protecting the employee on returning to work, but subsection (1)(a) refers specifically to his entitlements during the period of leave.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I was coming to that. We are broadly looking to do both.

Whether a man on paternity leave would still have access to the car park depends on the rules of the company. If employees have the right to use it when on leave from work on holiday, as is generally the case—[Interruption.] The hon. Member for Runnymede and Weybridge says from a sedentary position that it is not

generally the case, but it is. In all my experience, a company car park can be used not only when going to work, but in other circumstances. If that is not a non-contractual term of employment, the hon. Gentleman has a point. However, if it is such a term, a man taking paternity leave to help and support the mother may use the car park—for example, to get into town to do the shopping.

Mark Prisk (Conservative, Hertford and Stortford)

If the employer takes on another member of staff to cover the period of the employee's absence, who will park where?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

The same problem would arise if he was able to use the parking space when away on holiday. We are talking about two weeks of paternity leave.

Philip Hammond (Conservative, Runnymede and Weybridge)

I accept that we are broadening the issue. However, in saying that we are just talking about two weeks of paternity leave, the Minister is implying, ''What the hell are you talking about? It's only two weeks.'' Yet, as he told us, the same provision applies to maternity leave, so we could be talking about a substantial period.

My hon. Friend the Member for Hertford and Stortford (Mr. Prisk) made a significant point. It may not matter at a factory in Hull where there is ample car parking space, but in central London the right to use a car parking space in order to perform one's functions at work is extremely valuable. If an employer had to find a temporary worker to fill a post during a lengthy period of maternity leave, it could create serious difficulties if the person on leave persistently sought to use the space that they had customarily used. It is not a trivial point.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

The point may not be trivial, but it is totally unnecessary. The maternity leave provisions that the clause mirrors have been in place for some time, and they have not led to the end of civilisation as we know it. The hon. Gentleman is being unfair to employers. If an employer has a non-contractual term of employment that enables employees to use the car park at any time—on leave, on holiday, or whatever—why would he say, ''We will withdraw that entitlement from you because you are not on holiday, but on paternity leave, and restore it in two weeks' time''? It is widespread practice to have non-contractual terms of employment that allow for membership of a sports club or gym or use of a subsidised canteen whether one is on duty or off duty.

It would look strange if the provisions applied to maternity leave, but not to paternity leave. The hon. Member for Runnymede and Weybridge says that he is making a substantive point, but it did not register on our Richter scale at all when we consulted employers. They said, ''The best thing you could do for us is to make paternity leave absolutely consistent with maternity leave.'' We have tried to tidy up the provisions in order to do that, not least by harmonising the notice periods.

I urge the hon. Gentleman to withdraw the amendment, because it is unnecessary.

Norman Lamb (Liberal Democrat, North Norfolk)

It makes sense that the provisions should mirror those for maternity leave. In any

employment, myriad provisions have no contractual force, but are discretionary entitlements. The Bill provides that for the leave period of two weeks, everything relating to the employment remains in place—as it was before, so shall it be afterwards—subject to the point about remuneration. That has worked with maternity leave. When a woman goes off on maternity leave, it does not lead to chaos and a great battle over her parking space. In most cases, a person away on paternity leave will not want to drive into the factory car park; he will be shopping, looking after the baby, and so on.

Mark Prisk (Conservative, Hertford and Stortford)

I am unclear about this. At the beginning of the debate, the hon. Gentleman was strongly in favour of the point that we were making; now he seems to have changed his mind.

Norman Lamb (Liberal Democrat, North Norfolk)

There seems to be a propensity to try to score points all the time. I thought that the purpose of the Committee was to shed some light on the Bill, which is what I am trying to do. I raised two points. I asked for clarification on whether the Bill reflects existing provisions on maternity leave, and the Minister has confirmed that that is so. As I said, the language is tortuous. It is nonsense for terms and conditions of employment, which are normally taken to mean contractual terms, to mean something broader. Nevertheless, the Minister has confirmed that the language reflects existing legislation, and we should be pragmatic and apply the principle that, if it ain't broke, don't fix it.

Maternity leave provisions work. When a woman takes maternity leave, she continues to enjoy the discretionary entitlements that go with the job. The legal point is interesting, and the Minister might want to comment on it. If entitlements remain discretionary during maternity leave, can the employer withdraw them?

Philip Hammond (Conservative, Runnymede and Weybridge)

As the hon. Gentleman is lawyer, perhaps he can explain to those of us who are not the concept of a discretionary entitlement.

Norman Lamb (Liberal Democrat, North Norfolk)

My language was perhaps insufficiently precise—discretionary benefits might be a better description. In most cases, employees benefit from certain contractual entitlements and other discretionary benefits, which employers can offer or withdraw at their discretion.

Philip Hammond (Conservative, Runnymede and Weybridge)

Such as not giving leave?

Norman Lamb (Liberal Democrat, North Norfolk)

The clause makes the point that discretionary benefits will remain in place during maternity leave or paternity leave. My point is that the provision seems to work reasonably effectively for maternity leave. The legislation is about trying to provide benefits for fathers for a very short period of paternity leave that are comparable to those enjoyed by mothers during maternity leave. It seems sensible to work on that basis.

Mark Prisk (Conservative, Hertford and Stortford)

The Minister has failed clearly to define ''matters connected'', and as the hon. Member for North Norfolk (Norman Lamb) said, the language is tortuous and unclear. If our aim is to support the benefits arising from the terms and conditions of

employment, it would make sense to focus on that. The provision may be consistent with previous measures relating to statutory maternity leave, but two wrongs do not make a right. The provision is not automatically right simply because a similar mistake was made in the past.

Helen Jones (Labour, Warrington North)

I am listening carefully to the hon. Gentleman. Is he saying that the inclusion of similar provisions in maternity leave legislation is wrong, and that his party is committed to withdrawing them?

Mark Prisk (Conservative, Hertford and Stortford)

No one has satisfactorily defined what ''matters connected'' actually means, and that is what I am trying to do.

Norman Lamb (Liberal Democrat, North Norfolk)

The point made by the hon. Member for Warrington, North (Helen Jones) is absolutely right. The hon. Gentleman is arguing that the provision is wrong not only for paternity leave but for maternity leave. Is he arguing, therefore, that we should withdraw from women the right to maintain discretionary benefits during maternity leave? If so, he should make that clear.

Mark Prisk (Conservative, Hertford and Stortford)

We are trying to ensure clarity in the law, so that there is the minimum opportunity for disputes between employer and employee. My central concern is the great danger that use of a term such as ''matters connected'' will merely increase the propensity for dispute.

Philip Hammond (Conservative, Runnymede and Weybridge)

We should be concerned about the danger, with which the next amendment also deals, of creating a world in which people on leave, for whatever reason, are in a better position that those who turn up for work. As I understand it, we are talking about discretionary benefits that the employer is free to withdraw, at his discretion, from one day to the next—except, it seems, when a person is on leave. I am not sure that we want to create a world in which those on leave are in a more secure position than those who are not.

Mark Prisk (Conservative, Hertford and Stortford)

I agree. Where, other than in the contract, do terms and conditions of employment exist? It is that lack of clarity that poses the danger.

Betty Williams (Labour, Conwy)

I am sure that the hon. Member for Hertford and Stortford is grateful to the hon. Member for Runnymede and Weybridge for trying to rescue him. The hon. Member for Hertford and Stortford said that two wrongs do not make a right, and my hon. Friend the Member for Warrington, North is waiting for a reply to her question. Do you want to dispose of the existing provision for maternity leave? What exactly are you saying?

Sir David Amess (Conservative, Southend West)

Order. I am not saying anything.

Betty Williams (Labour, Conwy)

I am sorry. Will the hon. Gentleman clarify what he means? He said that two wrongs do not make a right, and the hon. Member for Runnymede and Weybridge tried to rescue him from that big mistake.

Mark Prisk (Conservative, Hertford and Stortford)

I am grateful, Mr. Amess, for your generosity in allowing me to continue. It is important

to remember that the provision to which the hon. Lady refers dates back to 1992 and was introduced by a Conservative Government. The amendment seeks simply to ensure clarity in the Bill.

Judy Mallaber (Labour, Amber Valley)

I, too, in the light of his contribution, would like to know whether the hon. Gentleman has made a U-turn on the previous Conservative Government's policy, as implemented in the original legislation. Does he want to remove the provision from maternity leave legislation?

Mark Prisk (Conservative, Hertford and Stortford)

Such clarity as is lacking relates to the phrase ''matters connected'', and that is what I hope we can deal with.

Philip Hammond (Conservative, Runnymede and Weybridge)

This unusually inclusive debate has had more participants than any other in our proceedings, although it has probably generated more heat than light.

I was interested in the observation of the hon. Member for North Norfolk that members of the Committee seem keen to score points. I know that North Norfolk is a long way away from the rest of the country, but those of us who have dealt with other members of his party have not noticed that they are particularly reticent about trying to score points. We will take no lectures from a Liberal Democrat on that issue.

My hon. Friend the Member for Hertford and Stortford and I have tried to point out that, at the beginning of this debate, at least, it was not entirely clear what is meant by

''matters connected with an employee's employment''

that do not arise under his contract of employment. However, a few examples given subsequently have made matters clearer. It appears that the Minister has tried to establish the concept, with which I would not disagree, that no one should suffer detriment as a result of taking paternity leave or adoption leave. That is not what he has achieved, however.

Let us consider the example of a company, of which I know many, that customarily provides free sandwiches for every employee at lunchtime. Let us say that that benefit was withdrawn while an employee was on paternity leave—I accept that such leave lasts for only two weeks and maternity leave lasts much longer. The employer might say, ''This is crazy. The sandwich bill has gone through the roof and I'm not doing it any more—no more sandwiches!'' Under the Bill, he could do that, except in respect of the person who is away on leave. If the Bill said that a person who is absent on leave under this section should not suffer any detriment as a result of being absent on leave, that is to say that he should not be treated any worse than his workmates who are still at work, I could accept it. Amendment No. 118 will address the concern that that creates a situation in which people who are absent are protected in a way in which people who remain are not.

Rob Marris (Labour, Wolverhampton South West)

Free sandwiches are a helpful example, certainly more helpful than the hon. Gentleman's obsession with car parking. Section 80C(1)(a) concerns

''terms and conditions of employment which would have applied if he had not been absent''.

If an employer decides that the sandwich bill has gone through the roof on the Friday of the first week that an employee is absent on paternity leave, and states that from the following Monday, which would be the second Monday of the paternity leave, no one is getting free sandwiches, that covers the person on paternity leave. That is because the right arises under the terms and conditions that would have applied had the person not been absent. If an employee on paternity leave had been working on that Friday, he would not have had his free sandwiches from Monday, which means that his position is no worse.

Philip Hammond (Conservative, Runnymede and Weybridge)

That is extremely helpful, and no doubt exactly what the Minister was about to say. While we are closing this debate, I invite the hon. Gentleman to turn his attention to amendment No. 118 to see whether the same argument can be adduced. His intervention has been helpful, and I shall be reassured if the Minister can confirm that that is how we should interpret subsection (5)(a).

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

What a fascinating exchange. I can confirm that interpretation, which I gave as an example.

The hon. Member for Hertford and Stortford said that he remains unconvinced because the phrase ''matters connected'' has not been explained. We have come up with three ''matters connected'', and I do not know how many more he might want. The thrust of his contribution was that we are making a mistake, but I never said that. He then pointed out that the Bill relates to Conservative legislation introduced in 1992, which was helpful because I had forgotten that. Of all the things that happened between 1979 and 1997, I would not criticise that legislation because it has caused us no problems.

Philip Hammond (Conservative, Runnymede and Weybridge)

I bet you did at the time.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I bet we did not. For those anoraks who want to check the record, we probably did not criticise that aspect of maternity leave.

In responding to an intervention, I made it clear that we are discussing non-contractual terms of employment that concern issues such as car-parking spaces and membership of a gym. If the car park were removed while an individual was on paternity leave, or, as will be the case from 2003, while a woman was on a year's maternity leave, that individual's right to parking would also be removed.

My wife works at an institute of psychiatry. While she was on maternity leave a new block was built on the car park, which no longer exists. She could not have retained her right to the parking space because she was away from work. Similarly, if an employer who finds that the provision of free sandwiches has become onerous and that the company looks like it will go bust if it continues to provide them decides to cancel them for everybody, they are cancelled for a man on paternity leave. I am happy to give that assurance, and I hope that at the end of an enjoyable and heated debate—lots of Calvin Klein's were getting into twists—the hon. Gentleman can accept that there is no need to push the amendment.

Philip Hammond (Conservative, Runnymede and Weybridge)

It says something about the ministerial salary that the Minister can afford such exotic underwear.

The debate has been useful, and the Minister has clarified the matter. We are discussing a no-detriment situation, and we all regard that as fair. My hon. Friend the Member for Hertford and Stortford has, in a broader context, made a valid point by pointing out that in relation to one year's maternity leave, if not two week's paternity leave, employers may be more careful about how they document entitlements or rights to non-contractual benefits and privileges when they could be used over long periods of time. The principle is clear, the Minister has clarified the matter and we shall probe the issue in a different way with the next amendment. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 118, in clause 1, page 4, line 40, leave out subsection (2).

The amendment addresses section 80D(2), which deals with dismissal. I should like the Minister to confirm that that paragraph does not create a situation in which a person who is absent is treated differently from a person who is still at work. In other words, if there is mass redundancy or mass dismissal, a person who is absent should be treated on a no-detriment basis that is analogous to the way in which those who remain at work are treated.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

That is our intention. We are drafting legislation analogous to maternity leave provisions. Given that the Bill concerns two weeks of paternity leave, it is difficult to believe that the provisions will be frequently needed in practice. Nevertheless, it is right as a matter of principle to give men on paternity leave the same rights as women on maternity leave. It would be confusing and potentially dangerous for employers if we were to operate regimes that were subtly different for the two forms of leave. As I have said before, employers were keen to tell us that they wanted the two things to be synonymous.

This is a matter for regulations. We shall consider the case for using them carefully and we shall consult widely. The provision is analogous with maternity leave and it will not be used often because the duration of paternity leave is short. Given those assurances, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Norman Lamb (Liberal Democrat, North Norfolk)

Will the Minister and his advisers think carefully when drafting these regulations? This point applies to existing regulations relating to maternity leave because there is a complex comparison between the existing normal law on redundancy situations, the entitlement to alternative employment and the obligation on the employer to look for alternative employment. These special provisions, which apply in the context of maternity, will now apply to paternity leave. The regulations relating to maternity give a more privileged position to a woman on maternity leave than, for example,

someone who has a disability or another person in the workplace who might have an equal right to an opportunity to alternative employment.

The regulations relating to both maternity and paternity must be examined carefully to ensure that we are preserving people's rights while they are away, and not giving them enhanced rights above those of other employees who may have equally pressing cases for being considered for alternative employment.

Philip Hammond (Conservative, Runnymede and Weybridge)

That was a helpful contribution. The hon. Member for North Norfolk put into words precisely my concern. From the Bill, it seems that regulation could provide that employers have to offer alternative employment to an employee who has been absent on leave, in circumstances where they would not have to offer employment to someone who had been at their workplace when the axe fell. I hope that I have understood correctly that the Minister intends to frame the regulations in such a way as to prevent that and that we are ensuring no detriment through absence, but equally that there will be no special protection of an employee's position resulting from absence. Since the Minister has not leapt to his feet to contradict me, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 119, in page 5, line 3, leave out paragraph (a).

Sir David Amess (Conservative, Southend West)

With this we may discuss amendment No. 120, in page 5, line 6, leave out paragraph (b).

Philip Hammond (Conservative, Runnymede and Weybridge)

These are two brief probing amendments to allow the Minister to clarify what regulations he expects to make under paragraphs 80E(a) and (b). I would be grateful if he would tell us his intention. Both paragraphs clearly provide for areas where regulations will be necessary, but they have the potential to create more red tape and a great deal of burdensome administrative work. We need to be clear that they will be light-touch regulations, the minimum necessary and appropriate to deal with the situation.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

Amendment No. 119 relates to an area on which we touched in discussing amendment No. 103. As we said then, our approach is to avoid imposing on employers the delicate task of trying to check whether an employee is to be the father of a child not yet born. That is unprovable; instead, we want to provide for employees to sign a self-certificate asserting their eligibility for paternity leave. That is the sort of evidence that we see employees providing to their employers. Paragraph (a) will allow us to make that provision.

We will also be able to specify matters such as the advance notice that an employee must give an employer. In most cases, it will be 15 weeks before the baby is due, as we have already discussed. I hope that we can agree that it would be wrong to remove paragraph (a).

Philip Hammond (Conservative, Runnymede and Weybridge)

Why does new section 80E take us back to stating that regulations under section 80A or 80B ''may'' make provision about these matters? In the overall architecture of the Bill, it will be a requirement that regulations are made dealing with notice, evidence to be produced and keeping of records. Earlier provisions contained the word ''shall''. The Minister told us that that was because the Government recognised that there had to be regulations in those cases. Are regulations not essential to deal with these matters?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I have a feeling that paragraph (h) may be relevant here. In the previous debate to which the hon. Gentleman referred, I pointed out that while we would introduce regulations under two paragraphs, we did not think that that would be useful or helpful for paragraph (h). We felt we could deal with it through guidance notes. Unless I have a different thought over the next couple of minutes, that is the why we put ''may'' rather than ''shall''. There will be a specific debate on that point, so I shall deal with the issue at that stage.

Amendment No. 120 would remove our ability ever to regulate to specify what records may need to be kept. It is important to have a probing amendment and to recognise that we are referring to records that relate to the employee's paternity leave only. Obligations on the employer that relate to pay are covered elsewhere in the Bill. As things stand, and on assumption that everything works well in practice, we do not expect that that provision will be used. We believe that everything will work well in practice and we have consulted widely on the detail of the new scheme. It has considerable support from those who will be operating it and we have avoided imposing undue bureaucratic burdens without leaving the system open to abuse and exploitation.

However, we accept that the possibility of abuse exists because it does so for any such right. The right to paternity leave and pay is entirely new so it is impossible to foresee how it will be used or misused. That should answer the hon. Gentleman's point. We should retain a power to regulate on questions of record-keeping in case, over time, evidence of abuse is proved to have taken place. A requirement to keep records might minimise or help tackle that abuse.

Again we come to the issue of ''may'' rather than ''shall''. We do not expect to use the power more than we have used the analogous power under the maternity leave provisions. That power has not been used, as the intervention in the last debate suggested, for nine years. If we the power were used under these provisions, I would not expect it to happen before representatives of employees and employers were consulted. Such a right should be available in the event that the need arises and, on that basis, I ask the hon. Gentleman to withdraw the amendment.

Norman Lamb (Liberal Democrat, North Norfolk)

I share the concern of the hon. Member for Runnymede and Weybridge that we need to ensure that the regulations do not impose too burdensome a requirement on employers or employees. If the hon. Gentleman is concerned for business interests, he should want regulations that clearly specify notice requirements on an employee to

ensure that the employer has adequate notice before the taking of paternity leave. That is essential and I would therefore like the regulations to be drafted with a light touch—the Minister has substantially reassured me on that.

Philip Hammond (Conservative, Runnymede and Weybridge)

I assure the hon. Gentleman that that was also my concern. I wanted to be clear that in a long list of regulations, all headed with the word ''may'', we understood what the Minister was and was not going to do. I am glad that we had that debate because the Minister began by saying that he would make regulations under every paragraph except under paragraph (h). He then read from his prepared brief, which stated he had no intention of making regulations under paragraph (b). We have therefore established that regulations will be made about notice and evidence but they will not be made, at least initially, to require records to be kept. That is a sensible balance between certainty and clear procedures and not creating excessive bureaucracy. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 112, in page 5, line 10, at end insert—

'(cc) make provision requiring employers to pass copies of notices received under sections 80a or 80b from employees to the Child Support Agency in specified circumstances'.

The Minister should be able to respond to the amendment quickly because I think that I have answered it for myself since tabling it. I think that clause 13(2) provides for information to be passed to the Child Support Agency. I tabled the amendment because it seemed that the best way to deter fraudulent claims of paternity was to ensure that the CSA was aware of them. If the Minister can confirm that the amendment is redundant under clause 13(2), I will withdraw it.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

This is one brief that I managed to read in advance, and the answer is yes.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 121, in page 5, line 13, leave out paragraph (e).

The amendment would remove paragraph (e) from new section 80E and has the same purpose of probing the Minister as to what is intended. That paragraph allows for regulations to make special provision for cases in which an employee already has a contractual right that corresponds to the statutory rights provided for by the Bill, which is curious. What special provisions does the Minister think will be necessary to deal with the impact of a statutory right in a case in which the right already exists by virtue of a contract? I cannot think of a special provision that would be required, so can the Minister clarify that?

Norman Lamb (Liberal Democrat, North Norfolk)

I speculate briefly that the intent is to ensure that the employee does not have the right both under the contract of employment and under the new statutory provisions. Perhaps the Minister can confirm that.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I shall do so in a long-winded way, if hon. Members do not mind, because it is important to make matters clear.

Paragraph (e) sets out the powers to make regulations that deal with cases. In many cases the employee will have a right to paternity leave under his contract of employment, or otherwise, that corresponds with his new statutory rights under the Bill. Removing the paragraph would mean that a father who had a contractual entitlement to paternity leave and qualified for the same right under the new provisions, would benefit from both. If his contractual right goes beyond the new right, nothing in the Bill will prevent him from enjoying that wider right. However, if the employer is already offering rights that are equivalent to those offered by statute, it would be wrong that he should suffer the double whammy of an employee receiving statutory rights on top of those.

The paragraph also mirrors the use of the parental leave regulations, by which special provisions are made for parents who qualify for both a contractual right to parental leave and leave under regulations. I expect the regulations made under this clause to mirror those that already exist in the parental regulations. With that explanation, I hope that hon. Gentleman will withdraw his amendment.

Philip Hammond (Conservative, Runnymede and Weybridge)

That is useful. What the Minister has said has inspired a thought—I do not have an amendment for it, but may return to it. Later in the Bill is a provision that prohibits the employee being required to contribute directly or indirectly to statutory pay. The Minister appears to be confirming that in a case in which an employee is already contractually entitled to a certain amount of pay for a certain period, and he loses that entitlement because of the statutory entitlement, he would, indirectly, be contributing to it. That thought that may provoke another amendment. However, he has clarified the intention of paragraph (e) and I am grateful to him. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 122, in page 5, line 23, leave out 'entitled to take' and insert

'who is taking or has taken.'.

The provision covers people who are actually taking or have taken leave, not people who are merely entitled to take leave but choose not to do so. I suspect that many people who are entitled to take leave will not do so. I may have misunderstood the provision, but it should apply to people who are actually taking or have taken leave.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

The hon. Gentleman is right. Many fathers will choose not to take advantage of the provisions and will not take paternity leave. The amendment would make no difference to the spirit and intention of the provision and would not even create a drafting problem, but it is unnecessary. It would create a problem because the wording in the Bill would be different from that in maternity leave legislation. Adopting a different formulation, however subtle, would be dangerous because, as we have said previously, that might suggest that there was a subtly different intention. Our intention is not different and

the amendment has the potential to confuse, so I ask the hon. Gentleman to withdraw it.

Philip Hammond (Conservative, Runnymede and Weybridge)

I understand what the Minister is saying and perhaps I did not express myself clearly. I am suggesting that modification of the application of other statutes should be limited to the period during which the leave is taken, as opposed to a much wider application. Someone who is entitled to take the leave is entitled to take it before he takes it, during the period of the leave and perhaps afterwards. What enactments does the Minister envisage will apply in a modified way and should they not be applied in a modified way only during the actual period of the leave?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I will consider the point, but the intention is that the drafting should relate to the existing position of women who take maternity leave, although there is a difference because women must take maternity leave, but men have a choice with paternity leave. We did not think that the amendment would make any difference to the thrust of the provision, but the hon. Gentleman has raised a point that we did not spot when going through the amendment.

Norman Lamb (Liberal Democrat, North Norfolk)

The Minister may have been about to reply to the hon. Member for Runnymede and Weybridge, but I should be grateful if he would outline the enactments that he has in mind in the clause and

the regulations that could be made under it. I cannot recall what enactments need amending in relation to someone taking maternity leave or being entitled to maternity leave or paternity leave. Can the Minister help with that?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I shall try, but perhaps I could return to the matter and give some examples in due course. In the meantime, I hope that the hon. Member for Runnymede and Weybridge will withdraw the amendment.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am happy to withdraw the amendment, but I hope that the Minister will find an opportunity later to answer the question posed by the hon. Member for North Norfolk because that may enable us to understand why ''entitled'' has been used instead of the wording proposed in the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill

Philip Hammond (Conservative, Runnymede and Weybridge)

Clause 1 is long and complicated. It inserts a number of new sections into existing legislation—

It being twenty-five minutes past Eleven o'clock, the Chairman adjourned the Committee without Question put, pursuant to the Standing order.

Adjourned till this day at half-past Two o'clock.

Standing Committee F

Clause 1 - Paternity leave

Philip Hammond (Conservative, Runnymede and Weybridge)

Most of the issues that must be explored in clause 1 already have been, in some detail, by the amendments. Indeed, some debates have been considerably broader than the amendments. However, I would like to raise further issues with the Minister. I particularly enjoy stand part debates because Ministers must answer questions without having had the benefit of seeing them two days in advance.

This morning, the Minister clarified a point that was exercising me about who would be entitled to paternity leave. The Minister made his now-withdrawn remark about the biological relationship between father and child being the important element. I am keen to ensure that, as we introduce more statutory rights, we do not inadvertently move away from encouraging a co-operative, discursive approach to settling matters such as taking leave. Amendments have been considered that would have made a nod in that direction, but I would be grateful if the Minister said something about his desire to see employees and employers working together to ensure that leave entitlements are dealt with in way that not only respects the needs and wishes of the employees, but is sensitive to the needs of businesses, particularly small business.

I hope that any guidance will make it clear that an employer will be expected, as part of good practice, to have an informal discussion with his employee to arrange something that is appropriate for both parties before he serves a bland notice on his employee telling him that he will be absent on such and such a date. An important feeling that has arisen from clause 1 discussion is disquiet on both sides of the Committee about the fact that we may be imposing, by statute, rigidities that employers and—in certain cases—employees would want relaxed. I refer to the discussion about whether leave can be taken in different form than a simple block of one or two weeks.

I want to raise the issue of polygamy with the Minister, which might sound strange. The Bill specifically addresses polygamous marriages and relationships but clause 1 clearly does not. Some employees could conceivably be found to be claiming

rather a lot of paternity leave on the basis of multiple births and their responsibilities to support multiple mothers. Will the Minister explain whether he intends to deal with the issue of polygamy in regulations. Some clauses provide a framework for dealing with multiple births or adoptions, which we will discuss later. However, there may be multiple claims for leave that are not a result of multiple births from one mother but of sequential births from different mothers with whom the employee has the specified relationship. We are obviously working in something of a vacuum as we do not know what the specified relationship is to be. It is probably safe to conclude, however, that marriage will be one of the specified relationships.

The Government have made it clear in the explanatory notes and in their response to consultation that they intend to set the period for statutory paternity leave at two weeks. As one would expect, the Bill is permissive, in that it requires that regulations set the period of leave, but it also provides that the regulations shall specify a

''period of leave of at least two weeks.''

That does not seem very neutral phraseology. If the intention is to be permissive and to allow the detail to be established in regulations, it would seem appropriate simply to state that regulations will specify the period of paternity leave. Adding the requirement that regulations specify a period of at least two weeks suggests that there is another agenda. Given that two weeks is clearly seen as the minimum, the Government perhaps have some form of ratchet in mind. If so, that would be rather alarming, particularly to small businesses. I hope that the Minister can set my mind at rest and explain why the provision is phrased in that way.

We have already had a little discussion about the matters that will be treated as employee entitlements not arising under the contract. Proposed new section 80C(6), however, refers to regulations that

''specify matters which are, or are not, to be treated as remuneration for the purposes of this section.''

That provision will prove important later, in terms of setting pay rates. It is presumably intended to deal with the question of whether tips and gratuities, for example, will form part of remuneration. I remember long and interesting debates on that subject during the National Minimum Wage Bill Committee. I should be grateful if the Minister would explain what regulations he has in mind in respect of matters that will and will not be treated as remuneration.

In proposed new section 80C(7), the language reverts to the permissive. It states that regulations ''may make provision'', but in the context of the right to return to work, of

''seniority, pension rights and similar rights'',

and of

''terms and conditions of employment on return.''

I do not want to do the job of the hon. Member for Manchester, Central (Mr. Lloyd) for him, but in the spirit of this legislation, regulations must exist that ensure that people do not suffer loss of seniority, pension rights and so forth on returning to work. According to the proposed new section, the

Government ''may'' make provision through regulations. I hope, however, that the Minister will point out those areas for which the Government will indeed make provision, and those for which they are merely contemplating such provision.

Similarly, on the provisions relating to certification procedures and the producing of evidence, the Minister told the Committee that he intends that self-certification will be the standard form provided by an employee to an employer. Will there be a standard format? Will the process be carried out in writing, or will it be informal? More broadly, what other provision will he make in respect of the procedure for giving notice? Will it be given in writing, for example? He has given the Committee some information, but he did not give us specific details when he dealt with the amendments.

Turning to new section 80E, paragraphs (c) and (d) address:

''the consequences of failure to give notices . . . and the consequences of failure to act in accordance with a notice''.

The terminology is rather sinister, and we must know what those penalties would be because they will be provided for in regulations and the Committee ought to know their financial magnitude. Elsewhere in the Bill, especially in the sections relating to payments, the penalties are specified in monetary terms, and I would be grateful if the Minister were to say something about that.

New section 80E paragraph (f) provides for regulations:

''modifying the effect of Chapter 2 of Part 14 (calculation of a week's pay) in relation to an employee who is or has been absent from work on leave under section 80A or 80B'',

which are the two classes of paternity leave that we have considered. Will the Minister explain what modification is required to give proper effect to new sections 80A and 80B because it is not immediately apparent?

Rob Marris (Labour, Wolverhampton South West)

More prosaically, I want to ask my hon. Friend the Minister about new section 80A(5)(b), which appears to be the twins or triplets paragraph. Do the Government intend that the father of newborn twins should get only two weeks or less than four weeks?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

The first point made by the hon. Member for Runnymede and Weybridge (Mr. Hammond) concerned flexibility and the co-operative approach, by which he meant that the employer should talk to the employee because in the majority of cases where these provisions already exist as procedures introduced by the employer that kind of communication is part of the everyday operation of such schemes. We would certainly amplify best practice in the guidance that we shall produce. There is an inalienable right during the period of 56 days to take leave starting from the date of birth. When an individual gives notice, they can specify that they want to take their leave on the date of birth, which is not specific for obvious reasons, or they can choose to take a specific period starting on a specific date during the

56 days. Consultation would be necessary in the cases of employees who say, ''I don't want leave from the date of birth, but I do want it from a couple weeks afterwards. Do you mind if I start it on a Monday?'' The employee has the right, which cannot be reduced or diminished, in that case, but I would still expect there to be constructive dialogue.

If an employee wants to change the period once they have set it, which would mean that they had picked a specific period before deciding that they needed to change it, our intention in regulation would be that they must give 28 days' notice. The hon. Gentleman asked what would happen if they did not give notice; the answer is that they would not get the leave.

There are some questions that one does not expect to be asked in Committee, of which, ''Will the Minister deal with polygamy in the regulations?'' is one. I have a note on this matter, but perhaps it would be a mistake to read it out because I thought that I had grasped the matter before I read it. This may refer not to polygamy but to be the father of several children, for whatever reasons. I had better leave these things to hon. Members' imaginations.

Philip Hammond (Conservative, Runnymede and Weybridge)

Joking aside, the crucial point is that there may be children of several different relationships but, in order to qualify, that extremely busy man would have to care actively for the children and support their mothers, wherever they happened to be.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

Yes. It would not be right to debar people in that situation from taking paternity leave for each child. Social security legislation has had to deal with polygamous marriages for some time. This is not the first time that such arrangements have been regulated by Government. Perhaps a previous Minister has been asked these questions on other Bills. We would obviously talk closely to the people who dealt with this in the past before we framed any regulations. We would have to ensure that we got it right. In general, the father should be entitled to paternity leave however many children were born, provided that he met the qualifications set out elsewhere in the regulations, particularly the parental qualifications.

Philip Hammond (Conservative, Runnymede and Weybridge)

Would the Minister find it convenient now to answer the question asked by the hon. Member for Wolverhampton, South-West (Rob Marris), which is relevant to this issue?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

Yes, that concerns multiple births. There we simply mirror the maternity leave regulations where there is one period of leave. That has been the procedure for a long time under maternity leave. We see no reason to change it for paternity leave.

Philip Hammond (Conservative, Runnymede and Weybridge)

So a person who is in two simultaneous relationships, where two mothers give birth on the same day to two children is entitled to two periods of leave, but a person in a monogamous relationship whose partner gives birth on the same day

to twins is entitled to only one period of leave. That does not sound equitable. It seems to send a rather rum signal.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

One reason for paternity leave is to help the mother. In the first case, there are two mothers, and in the second, only one. That one mother receives one period of maternity leave. The hon. Gentleman raises important points. They are on the record. They need to be considered because there are complications that the regulations must address. Our principles, however, are basically sound.

Rob Marris (Labour, Wolverhampton South West)

To take a more extreme, but not unknown, example, if a mother gives birth to quintuplets, one can envisage that a period of two weeks' paternity leave would be insufficient for the father. I urge the Minister to reconsider the twins clause. By parallel with maternity leave, I can see that there should not necessarily be 10 weeks' paid paternity leave in the case of quintuplets, but most of our constituents would recognise that if they were fortunate enough to father quintuplets, two weeks would be insufficient.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I will take those points into account. Generally we want to mirror the arrangements that have served us well for maternity leave for a long time. We do not want to have different arrangements for fathers. In some cases they have to be different, but we want to mirror the maternity arrangements as closely as we can.

The next question was whether we intend to ratchet up the two weeks. We do not. We consulted widely on that, and we have no plans to increase the period. We have been advised by the hon. Member for Runnymede and Weybridge on several occasions to leave some flexibility. The reason for specifying at least two weeks is that it gives some licence for flexibility, although we have no plans to use it at the moment.

Philip Hammond (Conservative, Runnymede and Weybridge)

Why say anything at all? The power to determine the period by regulation would give the Minister flexibility upwards, but it gives him flexibility downward too. He has chosen to remove his flexibility downwards, which inspires the he has a specific agenda. Has anything been said about the minimum level?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

We do not intend to reduce it downwards. That reminds me of the argument about the minimum wage. Do we intend to reduce the four weeks of paid holiday? No, once rights are established, we intend them to remain. As to the future, we have no plans for the level to come down, though changes may occur in the unforeseen future.

What about the meaning of remuneration? Subject to consultation, we intend to make the same provision that applies to maternity leave. Thus, sums payable to an employee by way of wages or salary are the definition of remuneration.

Philip Hammond (Conservative, Runnymede and Weybridge)

That seems a very sensible definition, so why is it not built into the Bill?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I do not know, but I will think about it and get back to the hon. Gentleman, who makes a fair point.

On self-certification and notice, the hon. Gentleman asked whether a standard form would apply. Subject to consultation, we intend to provide not a standard form but a model or guide for people to use. A standard form under the usual bureaucratic arrangements is unnecessary, but we shall offer a model certificate, which we will discuss with employers' groups.

I was asked about the use of regulations on a week's pay. We expect to make some provision for maternity and paternal leave under regulation 22, but a week's leave may not count to determine average pay for the purposes of the clause.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister makes an interesting reference to regulation 22. Does he have a set of draft regulations in front of him, to which the rest of the Committee is not privy?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I hope not. As I said in the debate on amendment No. 146, regulation 22 of the Maternity and Parental Leave etc. Regulations 1999 provides for how many weeks of leave are relevant for the purposes of calculating a week's pay for an employee. The amount arrived at in this way is used in calculating redundancy or unfair dismissal compensation and for various other purposes. We intend to mirror that provision in existing legislation. If any draft regulations pertaining to the clause were available, I would be pleased to see them. I hope that I have answered all seven questions.

Philip Hammond (Conservative, Runnymede and Weybridge)

What of the penalties under new section 80C, 80D and 80E? I asked the Minister whether failure would be met by a financial penalty.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I cannot remember at the moment what ideas we have for introducing penalties. I shall think further on the point for a second. The hon. Gentleman is asking what penalties will apply if the provisions are not carried out.

Philip Hammond (Conservative, Runnymede and Weybridge)

While the Minister is thinking about that, I remind him that I asked about paragraph (f) of proposed new section 80E. What modifications will be required to chapter 2 of part 14 in respect of the calculation of a week's pay?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

If an employee claims that he is entitled to or takes paternity leave when he is not entitled, any penalty would be a disciplinary matter for his employer, which is a sensible way of addressing the point. On new section 80E, I think that I just provided an answer, which is regulation 22 of the Maternity and Parental Leave etc. Regulations 1999.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am still a little curious. Do we deduce from the Minister's reply that no offence is committed under new section 80E(c) and (d) by failure to produce evidence, keep records or comply with other procedural requirements? Clearly no offence is committed by failure to give a notice, but is there an offence in failure to act in accordance with a notice

under paragraph (d)? I had anticipated that the Minister would say that an employer who failed to comply with some procedures would be subject to a penalty. Is that not the case? If we are talking merely about internal disciplinary procedure, why will regulations prescribe the consequences of such failures? Would that not be a matter only for the employer and employee?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

There will be no offence in respect of leave, although there will be penalties in respect of pay.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2 - Statutory paternity pay

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 123, in page 5, line 31, leave out 'or has been'.

This is a probing amendment. Is the inclusion of ''or has been'' intended to create an obligation on an former employer, or is the language merely designed to fit the tortuous language of the Social Security Contributions and Benefits Act 1992, which expects that someone who has gone on leave for two weeks has ceased to work for an employer? That is not my understanding of the term. Is there any substance to the wording, or is it merely designed to comply with the architecture of this part of the Bill?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

No, there is no substance to it. In fact, the amendment would make it crystal clear that former employees, as opposed to current employees, would not benefit from the right to pay. That is the correct approach. If an employee leaves his employer many weeks before his paternity pay period—he might have given notice, but then leaves to start a new job or just leaves—it is not right for his previous employer to be obliged to make provision for that payroll relationship when the rest of the relationship has been cut asunder.

The amendment suggests that it might not be clear from the Bill that that is what we intend. I am not sure whether the phrase marries up with the language in the 1992 Act, but if there is any doubt that we have not conveyed the correct intention—I have a few qualms about it myself—we will examine it carefully.

Rob Marris (Labour, Wolverhampton South West)

Will my hon. Friend reconsider lines 44 and 45 on page 5, which are the reason for use of the past tense in line 31? If the Minister has a moment to examine that, it might show why the phrases that the hon. Member for Runnymede and Weybridge wants to remove are in the Bill.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I accept that, but it is part of the problem. The idea could be conveyed that once the employee has left employment, the employer still has an obligation for statutory paternity pay. We need to re-examine that, and the amendment or something similar may be needed. We want to be absolutely sure that we are not creating problems in other areas,

particularly the legislation that the hon. Gentleman mentions. I hope that he will withdraw the amendment.

Philip Hammond (Conservative, Runnymede and Weybridge)

The legislation that I mentioned is the Act into which we are inserting the clause: it is not some different legislation. As the Minister says, the problem is that the Social Security Contributions and Benefits Act 1992 uses peculiar language that regards someone enjoying a period of statutory leave as someone who has ceased to work for an employer. That might pass muster if we are talking about maternity leave, which is quite long, but it is absurd and misleading in the case of a two-week period of paternity leave. No one would describe someone taking two weeks off as having ceased to work for an employer. To make it a condition of eligibility for statutory pay that one must have ceased working for the employer, meaning sitting at home rather than the workplace, is arcane drafting language obscuring the intended purpose.

The Minister said at the beginning of his remarks that the amendment makes the Government's intention crystal clear, which differs in tone from his usual opening response to amendments. I would have thought that the amendment might commend itself to him. If we are all on the same wavelength as to what the clause is supposed to say, he might consider whether it actually does say it, and return with an appropriate amendment on Report. If he does not think it is necessary, we may do that.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

We shall consider that. Maternity leave is a different situation altogether. A woman who has left employment is entitled to continue receiving maternity pay, so there is a difference between that and paternity leave, for all sorts of reasons that I will not go into.

We have to be sure about the language. I commended the amendment because it would be wrong to say that it has a drafting fault. We need to be sure that we have dealt with the issue. If not, we will either table the hon. Gentleman's amendment, giving him the credit and royalties that he deserves, or a similar amendment that will clarify what we are saying. He has put his finger on a very genuine concern.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Philip Hammond (Conservative, Runnymede and Weybridge)

I beg to move amendment No. 130, in page 5, line 32, leave out from ''conditions'' to end of line 11 on page 6 and insert:

''for leave under section 80A of the Employment Rights Act 1996 he shall be entitled in accordance with the following provisions of this Part to payments to be known as 'statutory paternity pay'.''

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 124, in page 5, line 44, leave out

''ceased to work for the employer''

and insert:

''exercised his right to take leave under section 80A of the Employment Rights Act 1996''.

No. 131, in page 6, line 14, leave out from ''conditions'' to end of line 3 on page 7 and insert:

''for leave under section 80B of the Employment Rights Act 1996 he shall be entitled in accordance with the following provisions of this Part to payments to be known as 'statutory paternity pay'.''

Philip Hammond (Conservative, Runnymede and Weybridge)

The amendments deal with the complex architecture of the Bill. I hope that the Committee will bear with me if it does not seem crystal clear at first. Amendment No. 130 deals with the perceived problem in relation to new section 80A. Amendment No. 131 deals with the same problem in relation to new section 80B. New section 80A provides that regulations will determine various factors, such as the number of weeks of continuous employment that entitle an employee to statutory leave. New section 171ZA cites in subsection (2)(b) a requirement of 26 weeks. The regulation made under new section 80A may not say 26 weeks. My understanding was that the statutory paternity pay regime was intended to mesh exactly with the statutory paternity leave regime, so that someone entitled to statutory leave would be entitled to statutory pay, except where he was below the earnings threshold, should the hon. Gentleman's amendment not be successful. In most circumstances, the two regimes would operate in a similar way.

However, new section 80A leaves regulations to determine the number of weeks, whereas new section 171ZA specifies the number, so we could have a difference between the two regimes. The Minister will no doubt say that he intends to make a regulation under new section 80A that specifies 26 weeks. That is fine, but the fact that secondary legislation could change the reference in one section but not the reference in the corresponding section about pay shows that the drafting is not perfect.

Instead of referring to the 26-week criterion for eligibility for pay, the Bill should refer to the period specified in regulations under new sections 80A and 80B, so that there is always perfect symmetry between the two, whatever the regulations made under those sections might say from time to time.

Amendment No. 124 relates to a slightly different point. New section 171ZA(2)(c) uses the phrase ''ceased to work''. In a way, we have had this debate already, but I find that language thoroughly misleading. I understand that it is in the Bill simply because of the historical architecture of the legislation. However, it is clear that someone in the circumstances under discussion has not ceased to work for the employer; he has simply exercised the right to take leave. It is rather dangerous to go down that route, because in every normal sense of the word the person continues to work for the employer and is merely resting during two weeks of statutory leave.

If I am missing something, I am certain that the Minister will tell me, but notwithstanding the horrible language of the underlying Act, it would be sensible to remove the phrase

''ceased to work for the employer''

and insert instead

''exercised his right to take leave under section 80A of the Employment Rights Act 1996''.

That would be entirely clear.

The Minister might even think about tabling an amendment or new clause later that would clarify the matter wherever the Employment Rights Act uses the phrase ''ceased to work'', if it is misleading. That would make a clear distinction between the separate cases. The Minister gave an example whereby, under the maternity regime, someone who had genuinely ceased to work for an employer would be eligible for maternity pay. However, under the envisaged regime, no one who has ceased to work in the everyday sense of the word will be entitled to paternity pay, but someone who has merely exercised his entitlement to leave will be so entitled.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

These pretty large amendments would delete several pages of the Bill at a stroke and put a single sentence in their place. Are we debating the group that includes amendment No. 124?

Derek Conway (Conservative, Old Bexley and Sidcup)

Let me help the Minister. We are debating amendments Nos. 130, 124 and 131, which relate to clause 2 and pages 5 and 6 of the Bill.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I thought that the amendments related to pages 5 to 8, but there may be a misprint somewhere.

Philip Hammond (Conservative, Runnymede and Weybridge)

I am looking at the amendment sheet, and I am confused. The amendment that I thought I was speaking to may be different from the amendment that I have actually spoken to. Did someone say something about a misprint?

Derek Conway (Conservative, Old Bexley and Sidcup)

Apparently, on the original amendment paper it was page 8, but on today's paper it is page 6. The page number depends on the version you are working from. I shall find out why that has happened; I am sure that there is an explanation. Is the Minister happy with that?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

I am not sure whether I should reply to the hon. Gentleman's point.

Derek Conway (Conservative, Old Bexley and Sidcup)

We could move to amendment No. 124 and come back to amendment No. 130 later, if the Committee agrees; it is slightly out of order. Shall we do that? It would probably make sense.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

It may be helpful if I go back. The amendments are pretty large; they delete two pages of the Bill. Superficially, that is attractive—I am all for cutting the size of the Bill—but the attempts of the hon. Member for Runnymede and Weybridge to simplify life might complicate it.

The amendments address an issue that is relevant to existing maternity rights and to the new paternity and adoption rights. We have separate legislative regimes governing entitlements to leave and entitlements to pay. The amendments would harmonise definitions and eligibility criteria for paternity rights such that the Bill's provisions for leave would also serve for pay. If the hon. Gentleman's point is that life would be much simpler with one set of provisions in primary legislation dealing with both pay and leave issues, I

would say amen to that. However, the task of getting from where we are now to where we might like to be will not be simple; it certainly will not be as simple as the amendments imply.

It is worth repeating that our starting point in designing the new paternity and adoption regimes was existing maternity rights. There are reasons why maternity pay is currently covered by social security law—that is where first it came from—and why it operates with the definitions and concepts that are appropriate in that area. It is of fundamental importance that the social security system should provide for the needs of new mothers in a range of situations, not just for those who qualify for leave.

There are health and safety arguments for allowing women to take time off work after the birth of a child; they are a key reason for the existence of maternity allowance. Statutory maternity pay plugs into the same concerns, and legislation on maternity pay, maternity allowance and several other benefits necessarily and rightly interconnect at many points to ensure full protection for mothers. It would be difficult and delicate, if not impossible, to take maternity pay out of the social security nexus in which it sits and move it elsewhere.

Employers deal with maternity payments through their payroll for those women who are ''employed earners'' for other pay administration purposes, such as national insurance contributions. In practical terms there may be little difference between an ''employed earner'' for pay purposes, and an ''employee'' for the purposes of time-off rights under employment law, but they are technically different. It would be possible to harmonise definitions so that employment law, social security law and tax law operated with the same concepts and definitions, but it would be hideously complex.

Philip Hammond (Conservative, Runnymede and Weybridge)

I should clarify that the amendment would not delete several pages of the Bill. It would remove the large part of new section 171ZA. That new section defines the conditions that have to be met for entitlement to statutory paternity pay. I suggest that the entitlement should be defined in the Social Security Contributions and Benefits Act 1992 by reference to the Employment Rights Act 1996. Someone entitled to a period of statutory paternity leave should be entitled to statutory paternity pay during that period. Referring to the definitions in the other Act is a neat way of ensuring symmetry without further complications. The amendment was designed to address that.

The Government intended that a person entitled to statutory paternity leave would be entitled to statutory paternity pay with the exception of those who fall below the lower earnings limit for national insurance contributions. If that is not the case, and the Minister envisages other groups who are entitled to leave but

not pay, it would be useful if he could explain who they are. I apologise, Mr. Conway, I forgot that that was an intervention.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

The hon. Gentleman is right: there are no other groups. Those who receive statutory paternity leave will be entitled to statutory paternity pay. I hope we are not talking to different amendments. We want to mirror the maternity leave provisions. That is the philosophy behind the clause.

Philip Hammond (Conservative, Runnymede and Weybridge)

The Minister raises an important issue, and I have suffered from self-doubt because of the confusion about the reference. There will not necessarily be payments of statutory paternity pay to those entitled to statutory paternity leave. The Bill says that in order to qualify for statutory paternity pay, one must have spent a continuous period of at least 26 weeks with the employer. In relation to statutory paternity leave, that continuous period is to be defined by regulations. It might be defined as 15, 10 or five weeks, in which case a class of people would qualify for statutory paternity leave but not for statutory paternity pay. I invite the Minister to define the qualification for statutory paternity pay as being the qualification for statutory paternity leave by referring to the regulations under new section 80A.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

The qualification is that they have worked for 26 weeks for employer, into the fifteenth week before the birth of the child. That is the qualification that we intend to apply to leave, which also applies to pay. I may need to consider the hon. Gentleman's point. He seems to be suggesting that the current drafting would mean—

Philip Hammond (Conservative, Runnymede and Weybridge)

Could.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

It could mean a disparity between the two because one is in regulations and the other is in the Bill. I will consider if the clause does meet the agreed objectives and return with an amendment if necessary.

Philip Hammond (Conservative, Runnymede and Weybridge)

Unless I am missing something blindingly obvious, that is precisely the problem. I can understand why the Government might be blind to the problem because they know their intentions for the regulations. If they intend to make a regulation that stipulates 26 weeks, there will be symmetry with that in place. However, it is undesirable that two things are meant to mirror each other, but one is defined in regulations that can be changed by statutory instrument and the other is set in stone in the Bill. The same applies to new section 80B. I ask the Minister to let me know the outcome of his deliberations.

The Minister said that he would consider the reference to

''a person who is, or has been, an employee''.

Will he also address the question of the ''ceased to work'' issue?

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

Yes, I said that we would consider that. The phrase has been used because it mirrors the language in maternity legislation, and it will be discussed as part of the exercise to which I have referred.

Philip Hammond (Conservative, Runnymede and Weybridge)

I look forward to hearing the outcome of that examination. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Kevin Hughes (Labour, Doncaster North)

I beg to move amendment No. 91, in page 6, leave out lines 1 to 6.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to take the following amendments: No. 92, in page 6, leave out lines 29 to 32.

No. 90, in clause 4, page 15, leave out lines 9 to 12.

Kevin Hughes (Labour, Doncaster North)

The hon. Member for Runnymede and Weybridge will be grateful for a pause in his deliberations. He has been a one-man show for the past two sittings and for most of this one, except for the amusing intervention this morning from the hon. Member for Hertford and Stortford (Mr. Prisk). He has obviously frightened the Liberal Democrats away. We had one Liberal Democrat this morning, and now we have none. It is usually the case with the Liberal Democrats that the lights are on, but no one is home. The hon. Gentleman's Conservative colleagues seem to have been very quiet during these sittings. I wonder if they think that they are in government and are supposed to sit quietly. Government members have made more substantial interventions than Conservative or Liberal Democrat Back Benchers.

I welcome the new rights afforded to parents in the legislation. Paid paternity leave and adoption leave are welcome and are a significant move forward in bringing families together at a crucial time. The Minister will recall that I raised the issue covered by the amendments on Second Reading on 27 November 2001. The Secretary of State acknowledged that the issue was important and should be considered in Committee. I have therefore tabled the amendments so that we may examine the exclusion of a particular group of people. I want to flag up the problems and give the Minister the opportunity to reconsider that exclusion, to question its fairness and hopefully to make suitable modifications to the Bill at a later stage.

The Minister has been probed from the front by the hon. Member for Runnymede and Weybridge and is now being probed from behind by Government Members. I find it difficult to believe that the Government, in proposing new and welcome rights for parents, are excluding a group of people who may need more help than most. The Government, more than any other, have gone out of their way to deal with social exclusion. The Prime Minister set up a social exclusion unit within months of coming into office to try to redress the balance to give those who are not so well off better opportunities. To date, their recommendations are bearing fruit in terms of getting funding into communities and specific projects where it is needed to help people out of poverty.

The buzz phrases when we first came into government were ''off benefits'' and ''into work''. Well this group of people are off benefits and are work. They are, however, in work that attracts only a low level of

income that falls below the lower earnings limit. There are various reasons for that and I shall come back to them in a moment.

The question is what message this specific exclusion from new rights is sending to those who have jobs but whose income is below the lower earnings limit. Is the message different for those not so well off? Is it that what is good for those who have well paid employment is not necessary for those who are poorly paid? Do those on lower incomes not count? Does the Minister think that they are less concerned about their children than those who are better off? I do not believe that that is the case.

The Minister needs to explain why he specifically excluded them from these new rights and on what grounds he thinks this exclusion would stand scrutiny under the terms of the European convention on human rights. The concept seems to be that just because someone is in a low paid job they do not need to spend time with their new baby or caring for their partner. The very idea is bizarre, but that is the only conclusion that people will draw from the unfortunate wording of this Bill.

There could be many reasons why incomes fall below the lower earnings limit. People may be unable to find one full-time job and so have more than one part-time one. That is often the case, and many people fall into that category. Many employers, particularly in the service sector, are only looking for part-time employees. The problem is that unless they earn over £72 a week from one job, they will fall below the lower earnings limit and, unlike the tax system, national insurance is levied on income from each job separately.

It could be that because of a disability a person is able to hold down only a part-time job, perhaps getting disabled person's tax credit. If they are on a minimum wage, they could work 17 and a half hours and still fall below the lower earnings limit. People between 18 and 21 who do not get the minimum wage—they might be on £3.50 an hour—would have to work over 20 and a half hours a week before they exceeded the lower earnings limit.

There are many people who work low basic hours, for example in the service sector or the retail sector. There are many people whose work is seasonal, particularly in tourist and agricultural areas. They may find it easy to get work at peak times but very difficult to find full-time work at other times. During such times, they will fall below the lower earnings limit.

None of these people is any less hard working or deserving than many of us who are lucky enough to have full-time, well paid employment. Clearly, to exclude such people is grossly unfair and discriminatory and I cannot believe that the Minister is happy in promoting such discrimination, particularly given his extensive experience of fighting against such unfairness and obvious discrimination before he was elected to the House.

I urge him to review this situation. These amendments are not radical. People on any level of earnings are already entitled to paternity and adoption leave. These amendments simply extend the right to payment for the period of the leave to the lowest paid

people in this country, to ensure that they can all spend some time with their children at the important time at the start of their lives. Children who are born and brought up in poverty suffer too many disadvantages already. The strains on their family lives are perhaps the greatest. I urge my hon. Friend to take this opportunity to make one more step towards redressing the balance.

Helen Jones (Labour, Warrington North)

I support my hon. Friend the Member for Doncaster, North (Mr. Hughes). I do so on two grounds: first, on the grounds of basic fairness and, secondly, because the thrust of the Bill goes against the whole thrust of Government policy elsewhere. When I look at the clauses I think of the many people in my constituency and those of my hon. Friends who struggle to hold down two or three jobs just to keep their heads above water. That applies to some men, but particularly to many low-paid women workers who juggle several different jobs to keep their families afloat.

As my hon. Friend said, such people are extremely hard working. In some ways it would be much easier for them to accept a life on benefit, but they choose not to do so. For us to deny them paid adoption or paid paternity leave is profoundly discriminatory. These people will not have savings to fall back on to tide them over a period of unpaid leave. They struggle to get by from week to week. To say, as the Bill appears to say, that they are less entitled to the right to be with their children than those on higher incomes is not only profoundly unfair but goes against the whole thrust of the Government's policy of ending social exclusion and trying to support families who are in poverty or disadvantaged in other ways.

Why do we as a Government promote programmes like Sure Start in deprived areas to encourage families to give their children the best possible start in life and yet at the same time deny them paid adoption or paternity leave? That is not right. If we are encouraging people to take jobs that are often low paid as a step to further work we should not build profound disincentives into the system. By working in low-paid jobs these people save the Government, the community and indeed all of us, money that would be paid out in benefit. They are often the people whose children deserve the best start in life and we should encourage that by ensuring that they get the same paid leave entitlements as anyone else.

I hope that my hon. Friend the Minister will think again about what is in the Bill and accept the amendment, otherwise I do not see how we can defend the clauses. I do not see how we can say that we support family-friendly policies and encourage those who are socially excluded to give the best possible start in life to their children and to break that cycle of deprivation and poverty if we do not give them the wherewithal to do so.

Tony Lloyd (Labour, Manchester Central)

I welcome the amendment and congratulate my hon. Friend the Member for Doncaster, North on tabling it. This is an important debate. Throughout the debate on clause 1 and our brief debate so far on clause 2, the hon. Member for Runnymede and Weybridge and the Minister have paid strong tribute to the need to introduce paternity pay so that we respect the proper role of parenting in modern society. Both Front-Bench spokesmen have waxed eloquent about that need: I have no quibble there. However, at no point do I remember the words ''except where poor families are concerned'' being used. We must recognise that the warm words that were expressed about the benefits and advantages of parental leave, which is an opportunity for people— especially fathers—to spend time with their newly-born children, should apply to families at the bottom end of the income scale.

I represent a disproportionately poor constituency, and hon. Members on both sides of the Committee could say the same. A significantly high number of families in my constituency would benefit were the amendment passed. The figures show that at the time when the woman in the family is pregnant, an average of 3,500 families per constituency will gain through the amendment. In my constituency, the figure would be significantly higher. A young child born in the poorest part of my constituency suffers massive disadvantage compared with a child born in Runnymede and Weybridge or other prosperous parts of the country.

I am not condemning the constituencies of Conservative Members, but children born in my constituency will do worse at every stage of their life. Their health will be worse from birth. They are more likely to die at the time of birth, they will suffer worse health throughout their life, they will suffer worse educational and social opportunities and they will die younger. If active parenting, particularly by the father, can make a contribution to push those disadvantages back a little, we should recognise the need for parental leave. We should certainly recognise the advantage of that form of economic support: the moral and the practical cases run entirely in the same direction. There is no argument on a moral or practical basis in drawing a distinction between families who are better off and those on lower incomes.

When the Department of Trade and Industry gave reasons for the cut off during the consultation, it argued that because the period of paternity leave is limited to two weeks, it would be difficult to justify setting up an equivalent system to administer the payment of paternity leave to fathers whose weekly earnings are below the limit for the payment of national insurance contributions. In fact, it is difficult not to justify that, for the reasons that my hon. Friends have put forward. It is difficult to justify failing to provide economic support to those at the bottom of the ladder who need it more than the better off. That is a matter of practical fact.

Judy Mallaber (Labour, Amber Valley)

I agree with the arguments of my hon. Friends the Members for Manchester, Central, for Doncaster, North and for Warrington, North (Helen Jones). There will have to

be a system in place to carry out calculations for those who earn more than the lower earnings limit—90 per cent. of average earnings. It is hard to understand why it is reasonable to grant money and administrative effort to implement the system for those above that limit but not those below.

Tony Lloyd (Labour, Manchester Central)

My hon. Friend makes a fair point, which moves me in the direction that I was going anyway. Will the Minister tell us what is the administrative difficulty and insurmountable bureaucratic hurdle that would cost so much? Around 600,000 males fall below the income limit. If we worked on the basis that one twenty-fifth of those were in a relationship in which the wife gave birth, that would mean about 24,000 or 25,000 cases a year. If we were to use the 90 per cent. limit of £72, that would mean £80 a week or £160 for the maximum fortnight's leave. I am not sharp enough to work out the conclusion with my own mathematics, but I believe that it leaves about £350,000 or thereabouts that the Treasury would have to pay out in direct costs, which is a relatively trivial sum of money.

There might be bureaucratic costs but, as was noted, they will be borne for groups slightly above the level so what is the major problem? If there is an issue around the individual cases, I am sure that imaginative systems could be brought to bear. We could pay them a flat rate and not worry about the 90 per cent. I cannot speak for my hon. Friend the Member for Doncaster, North, but I would agree if the Minister proposed paying a flat rate of £70 a week instead of using the 90 per cent. figure. My hon. Friend nods; he would agree too. It would be a straightforward, easy-to-administer lump sum, so there are ways round the administration that would make it simple. It might be a bit of rough justice, but nothing like the rough justice that would come by excluding the group altogether.

I appeal to my hon. Friend the Minister to give us some comfort today and assure us that the Government are heading in the right direction. We need to know that the Minister and Government are as consistent in protecting those most vulnerable in our society in this legislation as they are in so many other aspects of Government policy.

I hope that the hon. Member for Runnymede and Weybridge will offer his support to the principle that lies behind the amendments. If he does not, all the fine words that we have heard during the many hours for which he has spoken in his rather extensive attempt to clarify the Bill will mean nothing. This new caring, sharing Conservative party, of which we have seen a little, would be exposed as bogus, so I hope that he will make it clear that the Conservative party will support the change.

I should like to make the same comments to the Liberal Democrats but this particularly important debate for protecting those on the lowest incomes in our society interestingly sees them elsewhere. They might have much more important or interesting topics to debate. It is not for me to decide their priorities, but I know that the priorities of urban Liberal Democrat

councillors in areas such as Manchester and Sheffield are not matched by the disinterest of the parliamentary party in today's debate.

Philip Hammond (Conservative, Runnymede and Weybridge)

Has it occurred to the hon. Gentleman that the Government Whip might have had a word with the Liberal Democrats and that might explain their absence in view of the gathering clouds behind him?

Tony Lloyd (Labour, Manchester Central)

My hon. Friend the Government Whip is a man of much greater sophistication than that, which is why he still counts me as a friend despite the fact that I sit some places behind him. The Liberal Democrats' absence at this stage of proceedings is not easily excusable, and they must account for it themselves.

Having placed that on the record, I urge my hon. Friend the Minister to examine the genuine concern about and lack of comprehension of an approach that abandons those families who are in greatest need of such Government assistance. He could improve the good work in providing paternity pay and paternity leave, for which he is entitled to claim credit, if he said that he would go a step further and look for an imaginative administrative solution that would allow the lowest paid to benefit from that pay.

Joan Humble (Labour, Blackpool North and Fleetwood)

I did not intend to speak, but the compelling words of my hon. Friend the Member for Doncaster, North reminded me that women are not the only low-paid earners. Many men earn less than the lower earnings limit. In my constituency in Blackpool, many people who are employed in the tourism industry and do seasonal work regularly have two or three jobs to make a living for their families, but they do not earn enough in one job to go over the lower earnings limit. I am concerned about those people.

Listening to my hon. Friend, I was also reminded of an excellent report that was produced in the last Parliament by the Select Committee on Social Security, of which I was a member. That Committee considered the implications of paid parental leave in the context of the Government's accepting the need for unpaid parental leave. Much of the evidence that we took from a variety of groups concentrated on the low paid. We were told that many people with higher earnings received paid parental leave in any case. Men received paid paternity leave because they had good agreements with their employers. The low paid were the worst off.

We took compelling evidence from a wide variety of sources, including some from the United States Government, that men who earned below certain amounts did not take unpaid parental leave because they could not afford to do so. The Committee recommended that the Government introduce a flat rate for paid parental leave, so I am pleased that they are doing so.

I was also pleased that when the Committee produced the report, the Government acknowledged the particular needs of low-paid workers by enabling

low-paid families to claim income support during periods of unpaid parental leave. A question therefore arises. The Government recognise that those families need additional support and that fathers need to be paid to stay at home to look after their young children and share the caring responsibilities with their partners. There is clearly an administrative cost to processing claims for income support, so I wonder how that would compare with the administrative cost of giving those men paid paternity leave rather than requiring them to claim income support. Why should those poor families have to claim income support when everyone else receives paid paternity leave? The issue is clearly complex, and I fully welcome the moves that the Government have already made. Certainly through the social security system, they have recognised low-paid workers' needs.

I urge my hon. Friend the Minister to consider the issue again to see whether there is a way to enable those fathers to qualify for paid paternity leave under this system. I hope that he will consider the barriers in the proposals and perhaps overcome them for the benefit of my constituents and many others throughout the country.

Hywel Williams (Plaid Cymru, Caernarfon)

I welcome the amendments. It has long struck me as rather peculiar that under parts of the income maintenance system and the social security system, people who are too poor to access payments are denied them. The social fund springs to mind, under which people are denied loans because they are too poor to pay them back. A more pertinent example might be the lower-sum rule that prevents people from accessing grants. It is alleged that people are not allowed grants or loans below £30 because the administrative costs of the payments would be too high.

Like Labour Members, I have many people in my constituency who have part-time jobs and do not reach the lower earnings level. The reasons that they work part time are often structural. In marginal economies in rural or tourist areas such as mine, many people who wish to work full time have to take part-time jobs—or several part-time jobs, to reach a reasonable income. I support the amendments, and I urge the Minister to consider my points.

Judy Mallaber (Labour, Amber Valley)

I wish to add a point to the excellent contributions made by previous speakers and urge the Minister to reconsider the amendments and the point just raised about the prevalence of part-time workers who fall below the LEL. My hon. Friend the Member for Doncaster, North gave various explanations as to why people might fall below the LEL, including low basic hours and juggling several different part-time jobs.

The Minister made an excellent appearance before the Employment Sub-Committee of the Select Committee on Education and Employment, of which I was a member in the last Parliament. We discussed the question of part-time workers' rights and the implementation of the directive. The Government put

forward proposals that later came into effect to end discrimination against part-time workers. I urge the Minister to consider the amendments in the light of the Government's agenda on that item.

My hon. Friend the Member for Doncaster, North spoke about consistency of Government objectives, specifically for social exclusion. Perhaps the Minister would consider the amendments in the light of our agenda on rights for part-time workers and people who work difficult, complicated hours and are finding it difficult to juggle different responsibilities. I hope that he will take that into account and try to remedy what would be a great injustice.

Rob Marris (Labour, Wolverhampton South West)

I join my colleagues in urging the Minister to reconsider the amendments. I also raise a point that I confess I do not understand; it is more technical. Would someone who has three part-time jobs, each paying £60 a week, be eligible for paid paternity leave? Each job provides earnings below the LEL, but cumulatively they would be over the LEL. The way the clause is worded, it appears that he would be eligible, although that does not seem to be the intention and is not what the Union of Shop, Distributive and Allied Workers is saying.

Philip Hammond (Conservative, Runnymede and Weybridge)

I shall speak briefly, because Government Members have made many points, and the Minister has enough on his plate without me adding to it. I noticed that none of the speakers mentioned trade union membership. A published agenda of the Trades Union Congress is the removal of the exclusion of people earning below the lower earnings limit. I would like to ask the Minister a few questions for clarification.

Tony Lloyd (Labour, Manchester Central)

What exactly is the hon. Gentleman's point? Several of my colleagues and I have made it clear where our trade union loyalties lie. That is well known; it is not a secret. Is the hon. Gentleman saying that because an issue is espoused by a trade union, anyone who has an association with a trade union is debarred from speaking on it? For example, I represent poor people. Am I debarred from speaking about low pay because I chair the parliamentary trade union group? Is that what the Tory party really thinks about trade unions?

Philip Hammond (Conservative, Runnymede and Weybridge)

With the greatest respect to the hon. Gentleman, I must say that he is talking nonsense. I have not suggested that he should not speak on those matters. However, on Second Reading, many hon. Members felt it appropriate to declare membership of an organisation that had a certain published agenda.

Kevin Hughes (Labour, Doncaster North)

On a point of order, Mr. Conway. I am a member of a trade union. As far as I am concerned, that involves no pecuniary gain. In fact, I pay the union; it does not pay me. It beggars belief that I should have to declare that I am a member of a particular trade union to debate this important issue. Will you give guidance on that, Mr. Conway?

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. The point of order is fair. Hon. Members must decide whether they have pecuniary interests to declare, and it may help

Committee Members to know that if they receive outside remuneration for whatever purpose, that does not prevent them from taking part in the discussion. However, the House authorities would probably expect them to make that declaration before they contributed to the debate. I hope that that reassures hon. Members about their rights and privileges.

Tony Lloyd (Labour, Manchester Central)

Further to that point of order, Mr. Conway. In practical terms, that means that no member of a trade union needs to bother about that frivolous point. However, an interesting point arises on which you may want to rule, Mr. Conway. Would those who declare themselves to be employers have to state whether they pay their employees below the lower earnings threshold?

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. Neither the House authorities nor the Registrar of Members' Interests have taken a view on that. Hon. Members must decide what they want to make known to the House in the fullness of their contribution.

Philip Hammond (Conservative, Runnymede and Weybridge)

If I were opposing an amendment that sought to remove entitlements below the lower earnings level and I were an employer, which thankfully I am not, I would feel it incumbent on me to make that fact known. The hon. Member for Manchester, Central is reading too much into my comment. I merely wanted to make it clear to the Committee that this perfectly legitimate issue is part of the policy agenda of the TUC. Neither the hon. Gentleman nor other hon. Members can be surprised that the question should arise whether trade union membership is relevant, because without exception every Government Back Bencher who spoke on Second Reading thought it appropriate to declare membership of a trade union, and there is nothing wrong with that.

Judy Mallaber (Labour, Amber Valley)

Does the hon. Gentleman accept that I pointed out my relationship with Unison, for which I worked for several years many years ago, to show that I have considerable experience of working with part-time workers on employment rights and conditions at work? That is relevant to my being able to speak on the subject, as is the fact that there are many low-paid workers in my constituency. Would the hon. Gentleman regard that as relevant experience that is declared to show that I have some expertise, rather than to show that I have some strange agenda?

Philip Hammond (Conservative, Runnymede and Weybridge)

We have all become sensitive to the declaration of interests, and rightly so. However, the purpose of that issue is transparency, as I understand your guidance, Mr. Conway, so that people listening to a debate or reading Hansard can understand what outside influences are driving what hon. Members say. That is reasonable. I am surprised that Government Members are so prickly about my comment.

Judy Mallaber (Labour, Amber Valley)

It is what was implied.

Philip Hammond (Conservative, Runnymede and Weybridge)

I assure the hon. Lady that I did not imply anything, but was rather surprised that none of the Government Members chose to mention the TUC's campaign.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

The hon. Gentleman mentioned to Mr. Amess on a point of order that although on Second Reading the Speaker had made a comment, most people declared an interest. I declared my membership of the Communication Workers Union, and many Labour Members declared their membership of a union. The hon. Gentleman said this morning that he had not declared membership in Committee, and if he had committed any offence by doing so he apologised retrospectively. However, he is surprised that Government Members who did the same on Second Reading did not declare union membership in this debate. That is a contradiction.

Philip Hammond (Conservative, Runnymede and Weybridge)

I told Mr. Amess that I had not repeatedly declared the same thing at the beginning of each debate, which, as the hon. Member for Doncaster, North who moved the amendment noted, would have meant that I said the same thing over and over again. I declared my interest at the outset of the Committee. I have not declared it on each occasion that I have spoken, and on reflection, the Minister may be glad that I have not taken up the Committee's time in that way.

I should be grateful if the Minister could provide some factual information. An important point has been raised. We seek to address issues of family breakdown, and the social behaviour that arises from inadequate parenting for children. Clearly, the point that Labour Members have made is valid. It is not always the case, but surely it is the poorest people who are most often involved with families that are most vulnerable to such a situation? Those are the people at whom we should be targeting support.

I want to ask the Minister about the contributory principle. There are benefits that people receive as a result of contributing through the national insurance system. Can the hon. Gentleman identify precedents where payment of certain benefits is not made to people not making national insurance contributions? I also want to ask him about the costs that would be involved in accepting the amendment tabled by the hon. Member for Doncaster, North. I hope that the Government have estimated its cost to the Treasury.

I should also like the Minister to speak about the alternative forms of financial support that would be available to a person who is excluded as a result of the lower earnings limit threshold under the Bill. Will some people who are excluded be better off with the alternative provision for them that is available from public funds? I accept the question as to why some people should have to claim under another provision when others, on higher earnings, receive a statutory benefit as of right. I suspect that those people would be more interested in how much they receive than the route that they have to take in order to receive it.

Tony Lloyd (Labour, Manchester Central)

I used to think that the cost was about £300,000. In fact, £3 million would be a more accurate figure. In the case of maternity pay, those below the earnings levels are in receipt of benefits. There are examples of people who are not making contributions directly to the national insurance system receiving benefit.

Does the hon. Gentleman believe that the spirit of the amendments is essentially just? I am not asking whether he supports them, but whether he believes that those below the earnings threshold should have access to paternity pay?

Philip Hammond (Conservative, Runnymede and Weybridge)

I am glad that the hon. Gentleman is not asking me whether I support the amendments. I might ask the same question of him and he might not wish to answer at the moment.

The point that I was making before the hon. Gentleman's intervention was that what will matter most to the people in question is whether they will receive some money while taking paternity leave. Whether it is called statutory paternity pay or whether it is available to them through another mechanism may be less important to them. When we began our deliberations on this part of the Bill, I said that if we are addressing a problem and not merely giving leave rights and money to people for their benefit, but because we see a benefit to society in ensuring proper parenting, the group of people we are discussing now—probably more than any other group—could be a highly relevant target group for that kind of intervention.

Tony Lloyd (Labour, Manchester Central)

Was that a maybe?

Philip Hammond (Conservative, Runnymede and Weybridge)

No. Until I have heard from the Minister what other support will be available, I would like to reserve my judgment. I do not believe it as a grand principle that a person in certain circumstances should receive public funds under this rather than that heading. I look forward to hearing what the Minister has to say about that.

The hon. Member for Doncaster, North said that he would be surprised if these provisions stood up to scrutiny under the European convention on human rights. That raises a wider issue about whether contributory benefits would generally stand up to such scrutiny. Of course the Bill includes a certificate from the Secretary of State stating that its provisions are compatible with the convention.

Apologies to members of the Committee who have heard me tell this story on another Committee, but one of my constituents is a stalwart long-term member of the Labour party and an academic lawyer. He opined in a book that a Minister who makes such a statement on the front of a Bill and is subsequently proved wrong by the courts should resign as having materially misled Parliament. Will the Minister convey that point to the Secretary of State? Interestingly, it is the same gentleman who mounted a challenge to women-only shortlists from inside the Labour party. [Interruption.] No, he is not a Tory mole, but very much a Labour party member.

Some Labour Members argued that a disproportionate number of those caught by the lower earnings limit exclusion will be women. Has the Minister been advised on indirect sex discrimination? Other hon. Members may have detailed statistics, but I imagine that far more women than men would be caught by the provision. It will not be an issue for statutory maternity pay where we are dealing with a birth, but where are we dealing with adoptions the person in receipt of statutory maternity pay could be a woman. I look forward to hearing the Minister's response to interesting and important issues.

Charles Hendry (Conservative, Wealden)

I had not intended to speak, but have been moved to do so in response to the eloquent contributions of Labour Members. They obviously focused on issues in their own constituencies, but it is a wider national issue. The Library recently published the gross domestic product statistics for local authority areas. East Sussex was revealed as the third poorest in the whole country. That is because it depends on tourism, retail, farming and small engineering companies for the main source of employment within the county area. Areas seen to be prosperous—often wrongly—can be affected as much as inner city areas.

I shall not detain the Committee long because I want to hear the Minister's response, but I want to argue that certain groups of people will be inadvertently hit by this measure. A father who stays at home part-time to look after a disabled child or a son who looks after an invalid parent is classed as a carer and works fewer hours on account of it. If such people are working part-time on low wages, they could fall below the threshold. Similarly, a disabled person may fall below it because his ability to work a full week is impaired.

When I was in this place before, I was joint-chair of the all-party group on homelessness and enjoyed many hours of discussion with the hon. Member for Manchester, Central. I am still vice president of the Big Issue foundation. When one is trying to get people back into work who have been homeless one cannot expect them to go into full-time work straight away. There is a gradual progression as they work their way back, building up a few hours, starting on low paid work and getting better employment as they progress. Those who have been the most vulnerable people in society would fall foul of this measure.

The Bill specifically refers to the eight-week period. Someone's hours might have been cut for reasons such as economic downturn. They may have been earning well above the lower earnings limit but for that particular period of misfortune may fall foul of the measure simply because of an economic downturn. Finally, I should be grateful if the Minister would clarify what normal weekly earnings are. Does that exclude overtime? My assessment is that normal weekly earnings are the base income and so would not take account of overtime earnings. If someone has been off sick over that period it would bring down his earnings levels. There are many categories; it is not just people living in deprived areas. People who have

suffered all sorts of misfortune and difficult circumstances could suffer as a result of these measures.

Betty Williams (Labour, Conwy)

I welcome the points made by the hon. Member for Wealden (Mr. Hendry), particularly about people with disabilities and their carers? I am a member of the Select Committee on Welsh Affairs. Early last year we published our social exclusion inquiry report, which highlighted many of the points that have been made by my hon. Friends this afternoon. We met many groups in Wales who represented those people we have heard about this afternoon. Some of our recommendations have been quoted. I support my hon. Friend the Member for Doncaster, North and his amendment wholeheartedly.

Like many hon. Members I welcomed the new deal programme that was set up immediately after we were elected in 1997. In my constituency we changed the whole culture of people who have been unemployed for a long time. We changed their thinking. They searched for work. Tourism is the major industry in my area and some of my constituents work for three different employers. In the beginning they had difficulty holding down one job, let alone three, to make ends meet. I urge the Minister to listen carefully to what we say this afternoon. I feel confident that he will give us the answers that we seek.

Mark Prisk (Conservative, Hertford and Stortford)

I do not intend to delay the Committee long. I should first like to reinforce the excellent comments made by my hon. Friend the Member for Wealden. May I also go back to the comments made by the hon. Member for Manchester, Central? While he is entirely right to demonstrate that his own constituency as an entity is poorer and worse off than Hertford and Stortford or Runnymede and Weybridge, it is important not to assume that that is uniform. The Sele Farm estate in Hertford has significant problems. Equally there are villages in my constituency that also have significant problems. In a funny way because there are fewer people in those circumstances in those communities they are even more isolated. That point is worth bearing in mind.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

This has been a good debate. I congratulate my hon. Friend the Member for Doncaster, North. He has raised the matter consistently and he and other colleagues have been vociferous in their arguments—not because they are members of trade unions, but because they are worried about the same problems as us. I shall try to make our position clear.

We have introduced these rights to try to help everyone who adopts a child or gives birth to a child. My hon. Friend is right to say that in terms of social provision it is particularly important to help lower-paid people who are raising children in difficult circumstances. We must ensure that we do not discriminate against the low-paid—there is no argument about that. I hope that those of my hon.

Friends who want me to remain consistent with policies that I have supported or introduced before recognise that the lower earnings limit does not exist only in relation to this Bill. I shall explain some of the issues about the lower earnings limit, then move on to how we think that we can resolve the problem. In due course I will ask my hon. Friend to withdraw the amendment, hopefully content in the knowledge that we are aware of the problem and are determined to resolve it, but think that this is the wrong way to do it.

Under the earning conditions attached to each of the three categories—payment of paternity leave, payment of paternity leave to adopting parents and payment of adoption leave—the employee's average earnings must be at least equal to the lower earnings limit, which will be £75 a week in 2002-03. I say to my hon. Friend the Member for Wolverhampton, South-West that if people work part time for three separate employers, the national insurance contributions system, unlike the tax system, does not aggregate that, so they would not qualify. If they worked in two part-time jobs for the same employer, they would qualify. They could qualify if they worked in different part-time jobs in parts of the same company or in a subsidiary of the same company, although there are a few blurred edges there. But if they worked part time for Tesco, Sainsbury and Asda—I am trying to pick a supermarket chain that does not have a politician involved—

Philip Hammond (Conservative, Runnymede and Weybridge)

You will not find one.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

No.

If they do that, they will not qualify. It is important to make that clear.

Rob Marris (Labour, Wolverhampton South West)

I did appreciate that that appeared to be the Government's intention, but it is not what the Bill says.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

That raises a whole new problem. My hon. Friend suggests that we have resolved one element of it, anyway. We believe that we have kept to the principle of the lower earnings limit as it currently applies, for reasons that I shall now explain.

Amendments Nos. 91, 92 and 90 seek to remove the earnings requirement, whether in relation to a newborn child or a child newly placed for adoption. I share the concern that parents should benefit from financial support to take time off to care for their newborn baby or newly-placed child regardless of their income group. There is no difference between us on that. In the case of paternity pay, they should have the right to take additional time off to support the mother or adoptive parent.

Why is the lower earnings limit there? Obviously, the major element of the LEL is that people whose earnings are below it do not pay NICs. The clause inserts new text into the Social Security Contributions and Benefits Act 1992, which has the effect of ensuring that the criteria for qualification for statutory paternity and adoption pay are in this respect entirely consistent with the criteria for statutory maternity pay. We have been anxious wherever possible to ensure that all three systems run in parallel. The introduction of

statutory paternity and adoption pay is entirely new, and we tried to make them consistent with maternity measures for that reason. It is important that both employees and employers, who will be responsible for administering the schemes, find them as easy to understand and administer as possible.

The lower earnings limit exists for statutory and maternity pay for several compelling reasons, which include preventing disproportionate administrative burdens being placed on employers, who do not have to keep payroll records for people earning less than the lower earnings limit. That also applies to statutory adoption pay, and the need to prevent disproportionate administrative burdens falling on employers applies, arguably with even greater force, to statutory paternity pay.

Helen Jones (Labour, Warrington North)

Government Members have been listening carefully to the Minister's remarks. With regard to maternity leave, if one falls below the lower earnings limit one gets maternity allowance, but there is no equivalent where paternity leave and adoption leave are concerned.

The rest of the debate is in Hansard.