Grand Committee
Children and Families Bill
(11 years ago)
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The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, this is the resumed Grand Committee on the Children and Families Bill. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells ring and resume after 10 minutes. The Lord Chairman’s watch is the final arbiter. I understand that the Committee is currently debating Amendment 263, which has already been moved.
Baroness Young of Old Scone (Non-Afl)
My Lords, I hope I am not the only person who is going to speak at this point. I would find it really awesome to be the only one who caused this rather rare event of an amendment being carried over between two sessions of business.
I support Amendments 264, 265 and 266 on standardised packaging. I do not want to make too many of the points that have already been made—at breakneck speed, may I say; it showed that we can speed up if we put our minds to it—but will bring in a few others. There really is quite a consensus stacking up that there is a pressing case for standardised packaging.
The World Health Organisation says that standardised packaging would produce,
“the maximum reduction in the marketing effect of tobacco packaging”.
Australia has adopted it, as everybody knows, and the early evidence is that the standardised packs there are making smoking less appealing and have not caused any problems for retailers, which was one of the predictions. Scotland and Ireland have committed to it in principle, and I have it on very good authority that the Health Minister in Wales is convinced of the evidence. New Zealand, Canada, France, Norway and India are all considering this way forward.
We have huge support here from the medical colleges, including the Royal College of Paediatrics and Child Health, from the BMA, and from charities such as my own charity, Diabetes UK—I declare an interest as chief executive—as well as Cancer Research UK and the British Heart Foundation. They all believe that there is an increasing body of hard evidence. Of course, the public support standardised packs, with 64% polling in favour.
Standardised packs are really important because packaging is the last advertising route left to manufacturers and tobacco companies are spending a huge amount on pack design, and they do not do that for no reason. They recognise the truism that kids and young people are attached to brands. If you have ever tried to persuade your child to buy a pair of supermarket trainers you will know exactly how attached to brands they are.
When I was a kid and all my friends were starting to smoke, there was a league table of cachet. I am really old so Navy Cut was considered a bit more gentlemanly than Wills Woodbines. Embassy and Regal were the great working man’s fags and of course Silk Cut was for the ladies. Then the 1980s came and people took up Camels or Gauloises or, the height of cool, Lucky Strike. I was terribly tempted, I must say, by Balkan Sobranie, which were wonderfully coloured little cigarettes with gold filters. I had a friend, Brian, who smoked them and I used to sit there with one unlit, toying with this beautiful, chic sophistication while he puffed away. Alas, he died at 51 of lung cancer.
Helena Rubinstein used to say:
“In the factory we make cosmetics but in the store we sell hope”.
But of course we are not talking about selling hope; we are talking about selling addiction, cancer, heart disease, poor quality of life and early death for our children and young people.
Noble Lords have already shown that more than 200,000 kids aged between 11 and 15 start smoking each year. We really should take the step. Why do the Government continue to delay? I am sure the Minister will tell us. If they are waiting for the emerging impact of the Australian policy, they should not. The conclusive evidence could take two or three more years with another 500,000 kids addicted to a killer habit. We know that HMRC believes that there is no evidence that standardised packaging would increase the illicit trade that is one of the concerns, so there is no case for waiting for the Australian evidence. Why does the Minister believe there is a case for further delay? Will he please simply give in and get the Government to support Amendments 264, 265 and 266? I particularly commend Amendments 265 and 266, which strengthen the amendment further.
Baroness Thornton (Lab)
My Lords, the noble Earl and I have been discussing the regulation of tobacco products since 2008. At that time he was often sceptical about the efficacy of our proposals for the retail marketing of tobacco products. I particularly welcome these amendments because it is important that we keep this issue alive. Since 2010, my noble friend Lord Hunt and I, as well as others, have asked a series of questions about the enactment of the legislation concerning the display of tobacco products. I congratulate the noble Earl on making that happen successfully. It has been a success: it is now normal to walk into your corner shop and not see tobacco products side by side with comics and chocolates, which used to normalise tobacco for our young people.
It is important to be clear in what we are talking about. There are all the statistics in the world that people can talk about in terms of cancer, addiction and all those other things. However, we are talking about whether we are prepared to allow the over-powerful and wealthy tobacco companies to gain their next market for the profits they need to make from tobacco products. That is what this amendment is about. They can exist only if they continue to recruit young people to tobacco addiction so that they have their next generation of smokers, and that is what this is about. It is about reducing the number of young people who, by becoming addicted to tobacco and tobacco products, provide tobacco companies with their next generation of smokers. We know how hard it is to stop smoking once you have started, and I speak as an ex-smoker.
I hope that, over the years when the noble Earl has distinguished himself as the Minister in his job at the Department of Health, he has had access to all the information and research, and now has at his disposal all the facts about tobacco addiction and all the terrible diseases that this brings to everybody, so that he will be convinced that we need to take this forward. I hope he will tell the Committee either that the Government will support these amendments, or that they are not necessary because the Government intend to take plain packaging forward as quickly as possible.
Lord Judd (Lab)
My Lords, my noble friend just referred to how difficult it is to break the habit once you have formed it. I was a smoker in my youth. I progressed to a pipe, and on one occasion I was in some gathering with fellow young people when the bowl of my pipe dropped off into a pint of beer. I realised that this was a message from God and that one or other had to stop. I had little difficulty in choosing beer with which to continue. We all have these experiences. I am sure I am not alone in remembering with some guilt that, having joined the smoking culture—certainly the presentation of tobacco and cigarettes was an important part of the wooing of a person into the habit—I used to take tremendous pride in choosing the right cigarettes for my father on his birthday or at Christmas. That was very important, because he was a smoker and I was able to present him with a well wrapped packet of what he would like. Later in life, he suffered a severe stroke which left him speechless for the rest of his life, and I have always had an element of guilt about the fact that I no doubt contributed to that development in his health.
I do not understand why we prevaricate on these issues, as we are talking about a killer. Let us get this absolutely straight: it is a killer. We have no hesitation in saying that we must have rules about seat belts in cars because children get killed in accidents. We have special rules about children in cars because of how vulnerable they are. Why, if we take this seriously for seat belts and the rest, do we not take it equally seriously for tobacco?
My final point is that, as a society, we are agonising over the difficulties faced by our health service as it tries to grapple with the pressures on it. By enabling and encouraging young people to become part of the smoking community—by allowing them to drift into it or, indeed, by encouraging the deterioration in their health because of our failure to take rigorous action—we are deliberately adding to the problems of the health service. It seems to me that this is not only wrong but irresponsible. On the one hand to be grieving and agonising about the problems of the health service and the shortage of funds, and on the other hand to be aggravating it by our failure to act where we could act, seems to me irrational behaviour.
I commend noble Lords who have tabled these amendments, which certainly deserve support. I believe we shall be looked at very critically indeed in history for having prevaricated and pussyfooted for so long on such a crucial issue.
Lord Wigley (PC)
My Lords, I was going to make rather a longer speech the other night, but when I listened to the noble Baroness, Lady Finlay, present Amendment 263, most of the points in my speech were covered. However, I add my voice in support of what she said and of the other amendments before us today.
When I was 15, I remember being called home from school, as my father had had a very severe heart attack. He smoked between 40 and 60 cigarettes a day. I was there when the doctor told him, “You know what has caused this: it is your smoking”. I avoided smoking as a result—it brought the message home to me. When I used to travel in the car with him, invariably the little side window on the driver’s side would be slightly open, and most of the smoke would come back to me. We have legislation that protects people who have to work in vehicles from exposure to smoke—my goodness, we should be protecting children in a similar situation.
People say, “What next? You’ll be saying that people cannot smoke in their own homes”. The difference is that, in their own homes, children can go to another room—up to their bedroom or wherever—but when they are travelling in a car they cannot do anything like that. I very much hope that the Committee, and in due course, on Report, the House, will take on board an amendment along the lines of that moved by the noble Baroness, Lady Finlay. There is certainly widespread support on the Cross Benches for these amendments. If the Government do not move something themselves, I suspect the House will move on their behalf and that this will go forward into legislation.
Lord Palmer (CB)
My Lords, I fear that I may well be a lone voice in not supporting this amendment, even though I think smoking is a revolting habit and that everything must be done to encourage young people to refrain from it. There has been a lot of research into this, and a far more effective way to reduce youth smoking would be to ban the proxy purchasing of all tobacco products for under-18s, as is the case currently for alcohol.
I declare an interest as chairman of the Lords and Commons Cigar and Pipe Smokers’ Club and am, for my sins, a shareholder in BAT.
It must not be forgotten, particularly following the points made by the noble Baroness, Lady Young, and the noble Lord, Lord Judd, how much revenue is raised by the sale of legal tobacco products and, more importantly, how much income the Treasury is deprived of through illicit imports. I have a nasty feeling that if this amendment is agreed to, or voted on on Report, it will only compound that terrible figure.
The Lord Bishop of Chester
My Lords, I will speak very briefly. Over the years I have been attracted by most vices, but never to smoking, so in the circumstances it is easy to speak against it. I will add that it is not just a domestic issue. The noble Lord says that he has an interest in BAT. What astonishes me is the way in which the growing awareness in this country of the dangers of smoking seems to be so slowly taken up in the developing world. We have a moral need, not only in relation to our own children but to the developing world, to make clear the dangers of smoking. It really is a global issue. It behoves particularly the wealthier countries—not least if the interests of big business are engaged, as undoubtedly they are, or those of the Exchequer—to give a proper lead. I think these amendments do just that.
Baroness Howarth of Breckland (CB)
My Lords, I want to speak briefly because the health arguments have mainly been made. I want to make two rather different points. I support both of these amendments. I have a long-standing reputation for campaigning in this area. I find it interesting that the industry has suggested, from time to time, that packaging makes no difference. If it makes no difference, why is it so important? Let us get on and take it off the shelves. We have all the evidence to show that children are attracted to packaging and we all know our own instincts. I have never smoked, but both my parents died from smoking related diseases. My mother was addicted and said that I should stop anyone else I could from smoking.
My other point is on the smoking in cars amendment. Having said that the medical arguments are substantially made, which the Minister knows whatever the position he has to take on this, there is also a clear safety issue about smoking with children in cars. Anyone who has driven with two arguing children strapped in the back of their car—because children argue in the backs of cars, and if yours do not, then they are remarkable—will know how distracting it is and how you have to absolutely keep your concentration up. So I have always found it strange that we do not stop people being distracted by fiddling into a bag or a pocket for a packet of cigarettes, finding something to light up with and taking their eye off the road—we have all seen it—while they light a cigarette. They then have a cigarette in one hand while they are driving their children in their cars. This is an added reason for ensuring that people cannot smoke with children in cars. You might say that where there are two people one of them may smoke, but there is the medical reason and this additional safety reason. I have no idea whether there are any statistics on accidents because people have been smoking in cars, but when you think of the legislation we have to stop people using mobiles, which in some ways are much more automatic, I cannot understand why we do not have similar legislation to protect children, not only for the medical issues in relation to their health but also for sheer practical safety reasons.
Lord Storey (LD)
I will speak to Amendments 263 and 264. If you said to some parents that you were going to put their son or daughter or both in a tin box, cut some holes in the box, then fill it with smoke, put it on wheels and drive it around all the time, they would think you were absolutely mad. The tin box is almost like a coffin because you are killing children. You are literally killing children.
My parents were heavy smokers; they smoked 40 Senior Service every day. In fact, they smoked so much that our living room ceiling turned yellow once a year and had to be repainted. I always remember that when my father drove me through the Mersey Tunnel he would say, “We’ll have to put the window up because you can die from carbon monoxide poisoning, you know”, yet—perhaps this is why I get chest infections regularly—he was putting our family in that sort of situation. Of course, he did not know about the effects.
All of us look back at things in our lives that we are really proud of. The thing that I am most proud of in politics was that we introduced Smokefree Liverpool. Thanks to support from noble Lords of all groupings, we were able to influence, in a small part, government thinking. You often get people saying, “Oh, it’s the nanny state. We don’t want a nanny state. We don’t want people telling us what to do. If we ban smoking in cars, the next thing will be that we ban it in the house as well”. Well, nannies are there to protect and look after children, and a nanny state should be there to look after and protect children.
Children are particularly vulnerable to second-hand smoking as they breathe more rapidly and inhale more pollutants than adults. ASH has shown that parental smoking is a causal factor of asthma in children, and that the prevalence of asthma increases when the number of smokers in a car or in the home increases. Children exposed to second-hand smoking also have an increased risk of lower respiratory infections, bronchitis, middle ear disease, bacterial meningitis and sudden infant death syndrome. There is also a very social issue, one that is directly related to making our society fairer. Evidence has shown that children living in the poorest households have the greatest levels of exposure to smoking and that passive smoking has been shown to affect children’s mental development and school absenteeism. That clearly undermines our efforts to increase social mobility. Experts have suggested that banning smoking in cars while driving with children is an important step in limiting the effect of second-hand smoking.
For those more interested in the economic side, the numbers are staggering. The health disorders caused by smoke-generated disorders cost the NHS about £23.3 million a year. In particular, £4 million is spent on asthma drugs for children up to the age of 16. The future treatment costs for smokers who take up smoking as a consequence of smoking by a parent could be as high as £5.7 million each year. Parents need to consider that, in choosing to smoke, they will find it difficult to explain to the children why they in turn should not smoke. The NHS has shown that children who grow up with a parent or family member who smokes are three times as likely to start smoking themselves. As we can see, the issue has implications for public health and our society in general, and ignoring it would mean ignoring the poll in 2009 which found that a majority of adults in England were in favour of banning smoking in cars, with 74% opposed to smoking in cars with children. The message is clear: if we really care about our children and want to improve their health and social mobility, this is a step that we can take.
I can look back, as no doubt all of us can, at moments in our social policies where there has been resistance from some quarters, whether it be from government or a powerful lobby, but the will of people has always come out. Noble Lords may remember the row about seatbelts: “Ooh, you can’t have the nanny state making people wear seatbelts”. In the end we had the courage to fight for that, and we cut the number of deaths in traffic accidents considerably. There was even a fuss about making people riding motorbikes wear crash helmets; there was a feeling that, “We shouldn’t do that. The nanny state is interfering by telling people that they must wear a helmet”. It is quite right that they should wear helmets. More recently, we have had the issue of smoking in public places. As a Government, we have a duty and a responsibility to do this.
Governments of all political persuasions have to think very carefully and be led by evidence, not by emotion or lobbying. I understand that the issue of plain packaging for tobacco products is something that the Government were committed to but they wanted to see quite clearly that the policy that was agreed, particularly in Australia, brought results. It is now clear that that policy is having an impact, and I hope that the Government, having initially said, “Let us wait and see”, might now say, “Come on, this is an opportunity to move forward”. I look forward to the Minister responding to the pressure from your Lordships here.
On children in cars, I would prefer that we agree the amendment in its entirety, but if we cannot do that, we could think about taking the first step by having public information, as we used to do. We could provide adverts and publicity material so that parents could see what needs to be done. But if we really want to be progressive and move forward, we should support these amendments.
Baroness Tyler of Enfield (LD)
My Lords, I rise extremely briefly because I had my go on Monday. I want to add just one point to what my noble friend Lord Storey has said. Some people are saying, “Let’s start with an awareness-raising campaign. Let’s see what we can do there. We don’t need to go straight to legislation”. I do not agree with that. The most effective example that I can cite was the introduction of legislation for the wearing of seatbelts. Awareness-raising had been tried, but it achieved only 25% compliance rates, but soon after the legislation was introduced, alongside the awareness-raising effort—you need both; it is not one or the other—91% of adults started to wear seatbelts. As my noble friend said, it is clear that it has saved lives. I think that very few people in this country, and certainly the polls show it, now think that that is an infringement of civil liberties.
Lord Hunt of Kings Heath (Lab)
My Lords, I should perhaps declare an interest as chairman of an NHS foundation trust, as a consultant trainer to Cumberlege Connections and as president of GS1. I welcome this debate. I am delighted to see Amendments 263 and 264, and I have put my name, alongside that of my noble friend Lady Hughes, to Amendments 265 and 266, which are essentially amendments to Amendment 264.
As my noble friend Lady Hughes said on Monday, ever since the advertising ban came in, cigarette packaging has been the way in which tobacco companies have sought to market their products. That is why they spend millions on developing their packaging by testing its attractiveness to potential new customers, and that is why standardised packaging is such an important issue. Amendments 265 and 266 build on the excellent Amendment 264. Essentially, we seek to strengthen that amendment by requiring the Secretary of State to make regulations rather than by simply giving him the discretion to do so. It is important that Ministers are left in no doubt that they need to introduce standardised packaging, which is why I hope that those noble Lords who have proposed Amendment 264 and spoken so eloquently to it will accept our amendments to strengthen the provision. What has happened over the past two years or so would suggest that it is better not to give Ministers discretion in this area.
When the noble Earl comes to wind up, it would be helpful if he could explain the Government’s change of view on this matter. He will know that the former health Secretary, Andrew Lansley, said:
“The evidence is clear that packaging helps to recruit smokers, so it makes sense to consider having less attractive packaging”.
It was widely reported in March this year that legislation to enforce plain packaging for cigarettes would be included in the Queen’s Speech. In April, the then public health Minister, Anna Soubry, said that, having seen the evidence, she had been personally persuaded of the case for standardised plain packaging for cigarettes, but in July we heard the announcement that this was going to be postponed because we would wait and see what happened in Australia.
Will the Minister explain to us why the Government changed their mind and does he agree that the systematic review of all the evidence on standardised packaging commissioned by his department and published alongside the Government’s original consultation showed clearly the strong evidence that standardised packaging would help to reduce smoking rates by reducing the attractiveness and appeal of tobacco products and increasing the noticeability and effectiveness of health warnings and messages? Will he also acknowledge that two internal Philip Morris International corporate affairs documents from February and March 2012 showed that the top lobbying message for the world’s largest tobacco company was to use the strapline, “Wait and see what happens in Australia”? Why have the Government fallen for that attempt? Why on earth should we wait to see what happens in Australia? Cricket aside, I have great fondness for Australia and Australians, but why on earth are we waiting to see what happens there?
We have always been a world leader in this area with actions such as introducing smoking bans in pubs and enclosed spaces, ending tobacco companies’ sports sponsorship and billboard advertising, raising the legal age for purchasing cigarettes and the introduction of graphic warnings on cigarette packs. We have been a leader and our actions have had an impact. We have seen a dramatic reduction in the number of young smokers. Why on earth do we not want to continue in that vein? The Government will be in no doubt about the strength of feeling in your Lordships’ House and I have no doubt whatever that it wishes to see action taken on this issue. I hope that the noble Earl will be able to give us some comfort that the Government recognise that we should get on with tackling this issue.
Baroness Howe of Idlicote (CB)
My Lords, we have heard time and time again both here and in the other place of the clear benefits that plain packaging on cigarette packs would bring to children’s future prospects. Indeed, we have already had clear evidence from other countries of the benefits of taking this measure, as we have just heard, and I need not repeat it. We have also been told of the serious and life-limiting impact that passive smoking in cars can have on young people’s lives. Children often do not know the true risks of passive smoking in vehicles until they have already been exposed to it and certainly cannot be expected to make informed decisions about smoking, particularly not those from the most vulnerable backgrounds. For many the very real risks are not understood until, crucially, they are already addicted.
The knowledge that more than 200,000 children in the UK started to smoke in 2011 should alone be quite enough to urge us to take this preventive action. Awareness campaigns and sharing information are crucial measures, and will continue to be so, but we can see that they are clearly not enough. Surely, we have a responsibility to protect children from something which we already know is devastating. Therefore, I strongly support this group of amendments.
Lord McColl of Dulwich (Con)
My Lords, I, too, support these amendments, and my name is attached to Amendment 264. I should declare that I have a history as regards smoking as I used to be a chain smoker but gave it up when I was six. About 15 years ago in your Lordships’ House I introduced an amendment to ban smoking in public places. I put it on the back of a criminal justice Bill, which is a convenient way of moving things. I was amazed that the House was full right up to midnight when my amendment was discussed. I fondly imagined that everyone had come to listen to my wisdom, but little did I know that the House had filled with smoking barons waiting to pounce. However, I got my own back on them because at the end of the debate I thanked everyone for their contributions and, instead of saying, “I beg leave to withdraw my amendment”, for some reason or other I said, “Amendment not moved”. They all looked very puzzled because we had just spent hours discussing it. However, the noble Baroness on the Woolsack quickly said, “Amendment not moved”, passed on and they lost the opportunity to vote. They were furious and I was very pleased. As a professor of surgery, of course, I fully back any move to reduce the amount of smoking and I am convinced that these amendments would do that.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, this has been an instructive debate and let me say immediately that I have listened carefully to all the contributions, both today and on Monday. Perhaps I may start by addressing Amendment 263. I should say at the outset that I have enormous sympathy with the aim of this amendment, which is to protect children’s health from the harm that can be caused by second-hand smoke, and I am grateful to the noble Baronesses, Lady Finlay and Lady Massey, and the noble Lord, Lord Faulkner, along with my noble friend Lady Tyler for bringing this important issue to our attention.
We all agree that we do not want to see children exposed to second-hand smoke anywhere. The evidence of the harm caused by second-hand smoke is clear, but many children continue to be exposed to it, both in the family car and in the home. The question posed by this debate is whether legislation is the most proportionate and viable means of addressing the problem. We need to consider that question carefully and I must say that, while supporting the spirit of the amendment—which I certainly do—the Government are not convinced that creating new criminal offences is the right approach.
Of course, in some people’s minds there are civil liberties considerations, which might include what is often perceived as state intrusion into people’s private space. That is a complex area worthy of a debate on its own, but of course I acknowledge that any arguments on that score need to be balanced against the need to protect children. Since 2007, evidence shows that smoke-free legislation has been effective in reducing exposure to second-hand smoke in virtually all enclosed work and public spaces, public transport and work vehicles. Compliance with the law is high and we now benefit from clean air at work, in pubs and restaurants, and on public transport. However, it does not automatically follow from that that it is right to extend the scope of legislation to cover private cars.
There are many practical issues to be considered, particularly around effective enforcement, which is not something that we have heard much about during the course of the debate. Smoke-free legislation in England is enforced by local authority environmental health officers. They do not hold powers to stop vehicles or to detain people in vehicles that are already stationary. Consequently, it would be very difficult for them to take effective enforcement action without the assistance of the police. Since this is a public health issue rather than one of road safety, I expect that such an additional duty on top of their many other responsibilities would be a cause for concern for the police. The Chartered Institute of Environmental Health has identified other practical difficulties around enforcement. These include accurately identifying which vehicles are required to be smoke-free. For example, small children may not easily be visible from outside the vehicle. Further difficulties include obtaining evidence of smoking, identifying the driver and passengers, and proving the age of the child.
I hope that the Committee agrees that there would be real practical difficulties in effectively enforcing such an offence. If we cannot credibly enforce the law, then the credibility of the law itself is called into question. That is why the Government firmly believe that, rather than focus on what would be a complicated and resource-intensive enforcement process, we should continue the non-legislative approach that the evidence shows is working; namely, encouraging positive and lasting behaviour change among adults who place children’s health at risk. My noble friend Lord Storey urged us to do this. Our comprehensive tobacco control plan states:
“Rather than extending smokefree legislation, we want people to recognise the risks of secondhand smoke and decide voluntarily to make their homes and family cars smokefree”.
That is why Public Health England, building on last year’s success, ran another hard-hitting marketing campaign in June and July this year. The campaign aimed to encourage smokers to stop and think before smoking in front of children, whether in the home or in the car. It also encouraged smokers to order an NHS smokefree kit with tips on making the home and car entirely smoke-free spaces, together with support to help quit smoking altogether.
This year’s campaign is currently being evaluated, but emerging findings are encouraging. They show that the campaign has been successful in raising awareness and in changing attitudes and behaviour, with almost three-quarters of those surveyed agreeing that smoking out of an open door or window was not enough to protect children from second-hand smoke. Of those surveyed, 37% reported that they had taken action to reduce their children’s exposure to second-hand smoke, compared with 29% in 2012. In addition, 73% agreed that the adverts made them realise that smoking out of an open window was not enough to protect children, and there were nearly 85,000 orders for smokefree kits. That is an increase of 48% on the 2012 campaign.
The right reverend Prelate the Bishop of Chester rightly suggested that this is a global issue. I agree. We are, however, considered to be a leader in tobacco control internationally. The World Health Organisation has assessed us to be number one in Europe in this area, and through the Framework Convention on Tobacco Control we share this good practice as much as we can.
The noble Lord, Lord Palmer, suggested that the Government ought to introduce an offence of proxy purchasing. I know that shopkeepers and others are interested in making it an offence to buy tobacco for young people under the age of 18. I am sympathetic to that concern, but even were such an offence to be introduced, it would not stop family and friends sharing cigarettes with children. Therefore, we get back to the argument about behaviour change, which I think is more relevant here.
The noble Baroness, Lady Howarth, made an interesting point about this being considered as a road safety issue. I agree that any activity such as smoking—getting out a cigarette, lighting it, disposing of hot ash or stubbing the cigarette out—is likely to distract the driver, particularly if carried out in a moment that is critical for road safety. However, there are a host of things drivers do that have the potential to be equally distracting, be it eating, drinking, adjusting the radio, consulting directions or whatever it may be. First and foremost, it is the driver’s responsibility to drive safely at all times. Section 41D of the Road Traffic Act 1988 already provides a perfectly adequate offence if a driver fails to maintain proper control of a vehicle while driving. While a specific offence has been created for driving while using a hand-held mobile phone, the Government do not believe that there is any need to introduce a new and separate offence of smoking while driving.
I welcome the debate on this important issue and I can assure noble Lords that we shall consider carefully the findings of this year’s marketing campaign and decide what further action may be needed. I can assure the Committee that the Government will continue to work to protect children from second-hand smoke in family cars and in the home. We are not complacent but we remain to be convinced that legislation is the most effective and proportionate way of achieving this.
Baroness Young of Old Scone
My understanding of this is that, because the Government would not come forward with a more general provision, this amendment has been hitched on to the Bill in desperation because it seemed to be a sensible place to try to get it into. The convolutions that the Minister is rightly pointing out would be solved at a stroke if there were to be a ban on differentiated packaging across the board and standardised packaging were introduced for all cigarettes.
Earl Howe
That indeed is my understanding. Noble Lords have taken the opportunity of this Bill to raise the dangers of smoking, particularly of passive smoking for children, and I have no issue with that. I merely point out that there are problems with the amendment as drafted. I am not saying that it would not be possible to draft another amendment which noble Lords might care to consider between now and Report. Being able to enforce these provisions as drafted is also a significant aspect. For example, it may be hard to judge whether a product could reasonably be expected to attract children, as the amendment would require, or to determine what might be aimed at or would attract 18 year-olds but not, let us say, 17 year-olds or 13 year-olds.
I am grateful to noble Lords for raising this important issue and for keeping this debate at the front of our minds. It is a debate that we need to continue. As I have said, the Government have yet to make a decision on this policy, but if we were to bring in such a measure, we would not want it to be circumscribed in the way that is proposed. We would not want to set up a situation in which both branded and standardised packs could be sold legally depending on where they were sold and what other products were sold alongside them. I therefore urge noble Lords not to press their amendments and respectfully suggest that they consider other avenues for bringing this matter before the House on Report.
Lord Hunt of Kings Heath
I always admire the noble Earl’s eloquence when defending the indefensible and he has done that par excellence today, but is not the reality that this is an opportunity for the Committee and the House to express a view in principle on the issue? It would then be up to the Government. As the noble Earl knows, when that happens, the Government simply come back with an amendment at Third Reading to deal with the technical issues. Surely the issue here is whether the House goes forward to a vote in principle, which I hope it might be able to do.
Earl Howe
Well, my Lords, if I could repay the compliment to the noble Lord, Lord Hunt, he has very eloquently presented the case for the Government to go away and think further about this, which indeed we will do. I come back to what I said at the beginning of this debate: the message from this Committee has been delivered loudly and clearly. I am grateful to noble Lords for that. I say again that the Government’s mind is not closed on this issue.
Baroness Howarth of Breckland
As one of those who are not quite so eloquent but are equally committed to the cause, I think that the Government would be in a far better position if we had some timescale. We now know when Report stage is likely. I am much attracted to what the Minister said. I would much prefer that we had a universal position that protected adults as well as children because of, as he said, the influence that adults have on children. Many more noble Lords might, like me, be influenced if they knew that something was likely to happen. The anxiety is that, unless we press this, nothing will happen.
Baroness Finlay of Llandaff
My Lords, it falls to me to respond. I am most grateful to all noble Lords who have spoken. I am grateful that nobody has spoken against the amendment that would prevent people smoking in cars when children were there. The evidence is overwhelming. This must fall squarely within this Bill; it is about protecting children from harm. If I may draw on the analogy of a tin box used by the noble Lord, Lord Storey, that would be classified without doubt as child abuse. It would fall to the police to prosecute in such a case—indeed, with other traffic offences, it falls to the police.
I was intrigued to hear that the Minister places so much faith in the public education campaign and cites cost of enforcement as a problem. How much has the public education campaign cost in total, including its evaluation, and what are the cost estimates for the police?
In Wales there has been a public education campaign since 2012 to try to stop people smoking in cars when children are present, and it is currently being evaluated. I live there and I can tell noble Lords that it is not working. In supermarket car parks you see children being offloaded into the back of the car, the shopping offloaded into the boot and a cigarette offloaded out of a packet into the driver’s mouth before they set off. I would dearly love to tap on the car windows of those people and say, “You can’t do that” because they are endangering the children in the vehicle. I also refute the notion that it would be very difficult to identify who is smoking when there are children in the car. The Government are committed to children’s health and well-being and have shown that commitment in many different ways—for example, through sporting initiatives—yet they allow a practice to continue which permanently damages children’s lungs and physical development and leads to premature death in some cases. Indeed, the instances involving asthma sufferers cannot be ignored.
I remind the Minister that the legislation on smoking in public places has brought about huge behavioural change and been extremely successful. I have been repeatedly thanked for that legislation by smokers and non-smokers, as must have happened to other noble Lords who campaigned prior to that legislation going through. That legislation has made it easier for them to attempt to stop smoking or to cut down. I can honestly say that nobody has been angry with me about the legislation having gone through, although some anger was shown when it was being discussed.
I was intrigued by the Minister’s comment about the complexity of Amendment 264 vis-à-vis producing standardised packaging. He may not wish to comment on the detail of it, although I am happy to give way if he does. However, I hope that he will meet me and other Peers who are interested in this issue to explain what problems may arise in this area. I am grateful to him for his critique of the amendment and see exactly what he means. We certainly need to take it away, redraft it and bring it back on Report. We do not want to make it harder for retailers who sell other things to children, such as comics, by differentiating and having some kind of two-tier system.
As regards the point raised by the noble Lord, Lord Palmer, in relation to illicit products, Margaret Hodge, chair of the Public Accounts Committee, found that the illicit market reduced from 20% to 9% between 2000 and 2012-13. The 9% figure applied also to 2010-11, although it dipped to 7% in one year. Margaret Hodge commented that the tobacco manufacturers are complicit in this illicit trade by,
“supplying more of their products to European countries than the legitimate market in those countries could possibly require. The tobacco then finds its way back into the UK market without tax being paid. The supply of some brands of hand-rolling tobacco to some countries in 2011 exceeded legitimate demand by 240%”.
I understand that oversupply to Ukraine has been identified, which fuels a £2 billion black market that has reached across the EU, and that in 2011 Japan Tobacco International was investigated and is now under official investigation by the European anti-fraud office. So I am afraid that it is not a nice story. I am not certain that the argument about revenue saved can possibly be stacked up against the cost of lives shortened, health damaged, children left orphaned and all the other things that we know go on. I beg leave to withdraw the amendment but we will be coming back to it at the next stage of the Bill.
“(7) Entitlements provided by regulations made under this section may be transferred to another family member or other related party in the following exceptional circumstances—
(a) where a mother is incapacitated;(b) where a medical practitioner prescribes that the mother is unable to look after the child; or(c) where the mother dies in childbirth.”
Lord Stevenson of Balmacara (Lab)
My Lords, we have moved on to Part 6 which has been greatly anticipated on my side of the House and, I am sure, with equal enthusiasm and excitement by my noble friend the Minister. We have a substantial number of amendments to get through and I know there is pressure on all sides to try to complete this within the time. We will do what we can to achieve that but there are still some very important issues that we want to pick up and I make no excuse if we spend some time debating them. Having said that, I reassure the Minister that, by and large, the Opposition are very pleased to see many of the measures that are proposed in these parts of the Bill. We have comments for discussion and we will do our obvious constitutional duty to scrutinise those things that are there, but we are not making major objections to them. We seek to refine, occasionally to add and perhaps to probe the Government a bit more on some of the reasons why things do not appear as we would like them to. I am also grateful to the Minister for allowing us a chance to talk to him and the Bill team which was very useful.
Amendment 266AZA would ensure that there is flexibility in the legislation for exceptional circumstances. The purpose is to ensure that if children need to be looked after in exceptional circumstances, the parental leave enabled by the substantive clauses can be allocated to someone else such as a grandparent, an aunt, an uncle or even the father if he would not ordinarily qualify.
It does not take much to imagine how devastating exceptional circumstances could be. It may be that the mother becomes incapacitated, very ill or even dies in childbirth, or that there is some other complication such as a late-pregnancy stillbirth—something that my mother suffered—that will require urgent and immediate assistance but also longer-term assistance over the period covered by the shared parental leave. At present they would be able to take only a limited amount of time—almost certainly unpaid time off for dependants—if indeed it were granted by their employer.
Similarly, there may be circumstances in couple families where the mother is unwell but the father does not qualify for shared leave to care for the new baby. The Bill should make provision for exceptional circumstances when shared parental leave and pay could be transferred in such difficult and, as I have said, exceptional circumstances. Surely we ought to be doing everything that we can to support families in these circumstances.
We had a previous meeting with the Minister in which we had a brief discussion on this point, and I have read the response of his honourable friend in the other place. I understand that he may feel that the amendment could distract from the main thrust of the Bill and that his initial position may be that the Government do not expect parties who are not parents or partners to share parental leave. I also fully understand, to anticipate other amendments due to come up shortly, that the Government do not want to weaken the engagement of fathers in raising their children. We accept that there is strong evidence that the early engagement of fathers in caring for their children leads to positive outcomes for children. However, the amendment is really about exceptional circumstances, already outlined, in which other statutory provisions may just not work or, if they did work, would not be sufficient, as in the case of a late stillborn child, where of course by definition shared leave cannot be invoked.
If the Government cannot accept this amendment—although I hope that they will—perhaps the Minister will acknowledge that they might consider using the provision under the new sections in the Bill to make regulations for these sorts of extenuating circumstances. I beg to move.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, I thank the noble Lord, Lord Stevenson of Balmacara, for bringing this matter to the attention of the Committee, and for his broad support for the shared parental leave provisions.
The noble Lord’s Amendment 266AZA proposes that in certain prescribed circumstances, other family members or related parties should become entitled to shared parental leave. The circumstances that he has outlined include where a mother is incapacitated, where a medical practitioner prescribes that the mother is unable to care for her child, and where the mother dies in childbirth.
Nobody would wish for any family to have to deal with these difficult and sometimes tragic situations. Unfortunately, many families have no choice. The challenge of looking after a very young child in these situations may be overwhelming. Often relatives or family friends step in to help those concerned, and it is important that we recognise the extremely important contribution that these individuals make, often in particularly challenging circumstances.
However, it is essential to remember what the introduction of a new system of shared parental leave and pay is aiming to achieve. This policy aims to facilitate shared parenting. This means encouraging greater paternal involvement. Many fathers want to be more involved in the upbringing of their children, and there is clear evidence that this brings real benefits not only to the parents but to children and young people themselves.
In the circumstances that have been raised during this debate, shared parenting—in a very literal sense—is not possible. The amendment tabled by the noble Lord, Lord Stevenson, would enable the sharing of leave with another family member or related party when the mother is unable to care for her child, either through incapacity, illness or death.
The way in which shared parental leave may be taken in circumstances where the mother dies will be set out in regulations. For the benefit of the Committee, I will outline how the Government envisage that this will work. If the mother dies before the parents have opted in to the new system—for example, if she dies during childbirth—an eligible father or partner will become entitled to the full balance of shared parental leave and pay. If the parents have already opted in to the new system, any outstanding leave and pay for which the mother was eligible will become available to the father or partner, if he is eligible.
The Government do not intend to make equivalent provisions where the mother is incapacitated or where a medical practitioner prescribes that a mother is unable to look after her child. This is because the mother may need to remain on maternity leave, or may make a recovery and wish to use the balance of her shared parental leave in the way in which she had originally envisaged. It may not always be possible to determine how permanent a change in situation is.
The Government recognise the extremely valuable contribution that relatives and friends make to support families at a difficult time. However, we do not believe that these individuals should become entitled to shared parental leave and pay. It is essential that we send the right message to fathers that their role as a parent is as important and valued as that of the mother.
I am grateful for the opportunity to discuss these issues with the Committee and I ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
I thank the Minister for his reply, which was not unexpected. I return to my original point: this is really a question of humanity and trying to recognise extreme circumstances. I asked the Minister to consider whether some of the aspirations in this amendment could be met within the general flexibility that is provided elsewhere in the Bill, but he declined to say that he would. Of course, it still exists so one can still hope that that message will be recalled when and if these issues come up. To be perfectly frank, there are circumstances in which fathers who have not had the statutory 26 weeks’ employment at the requisite rates within a single employer simply cannot get eligibility for the sort of leave that would come up under these exceptional circumstances. Sadly, these people will miss out, so there is a gap. We shall reflect on what has been said and read carefully what has been opined to the Committee and may come back to it, but in the interim I beg leave to withdraw the amendment.
“(8) Regulations under section 75E may provide for the taking of leave under section 75E in a single period, or in non-consecutive periods, or in periods shorter than the period which constitutes, for the employee, a week’s leave.”
Baroness Lister of Burtersett (Lab)
My Lords, Amendment 266AA would introduce regulations to enable shared parental leave to be taken on a part-time basis, if desired, rather than in blocks of at least a week. I am grateful to Working Families for its assistance with this amendment, which has the support of a long list of organisations, and to the noble Viscount for meeting me and Adrienne Burgess of the Fatherhood Institute recently.
The amendment attempts to hold the Government to their original proposal in the Modern Workplaces consultation: that parents would be able to take the new form of leave in,
“smaller chunks or on a part-time basis”,
if their employer agreed. This was warmly welcomed by both family organisations and employers, yet the Bill reverts to a minimum period of a week at a time. There are many arguments in favour of part-time leave, which is a feature of many parental leave schemes elsewhere in Europe. It would help low-income parents who may not be able to afford full-week periods of leave for any length of time. The TUC points out this week that inadequate financial support for new parents impacts disproportionately on low-income families. Indeed, more flexible leave that could be used to complement part-time work was proposed in a Joseph Rowntree Foundation report on tackling in-work poverty published just last week.
It would allow for a smooth transition back to work, which could make it easier to settle children into childcare. It could encourage fathers, who might be reluctant to take a full-time block of leave, to take parental leave. In doing so, it could help usher in the change of culture of redefining early parenting as a joint responsibility that the Government keep talking about and that many of us want to see. I shall expand on this when I move Amendment 266B. It could provide parents with flexibility and could make it easier for employers. It is worth noting that, in a recent survey by the Family and Childcare Trust, flexible working was parents’ top priority for improving the quality of family life. This is just one aspect of flexible working, but it is an important one.
The Government have said that they are sympathetic to the idea but are concerned at the administrative complexity involved. They have suggested an extension of keeping-in-touch days as an alternative solution. While such an extension is welcome, it is not a substitute for part-time leave. Parents do not have to be paid for attending keeping-in-touch days, which are designed for a different purpose.
If the Government are genuinely open to the idea of part-time leave, surely it would make sense to make provision for it to be introduced at a later date by secondary legislation, once it has found a way through the administrative hurdles. I therefore hope that the Minister will be willing to take this away and give it further consideration. I cannot believe that where there is a political will there is no legislative and administrative way. If the Minister is not prepared to consider taking such regulation-making powers, I can only assume that there is no political will to inject this important element of flexibility into the parental leave scheme, despite the fact that flexibility lies at the heart of the scheme’s policy objectives as set out in the impact statement. I beg to move.
Baroness Tyler of Enfield
My Lords, to explain why I am sympathetic to this amendment, while I am supportive of what the Government are seeking to do through shared parental leave, which is absolutely right, the amendment raises two particularly important points. One is the position of parents on low incomes who will find it difficult to afford long periods of leave, particularly if they are working at less than the minimum wage. We know that the number of people working at, or even below, the minimum wage is significant.
Secondly, the amendment would allow that smooth transition back into work which may help children settle into childcare. From the work that I have done in other contexts around childcare, it is clear that it helps some children to be eased into childcare on a part-time basis, rather than going for a whole week’s worth. For those two reasons, I am particularly sympathetic and attracted to the amendment, although I cannot pretend to have been involved in all the detailed thinking around it.
Lord Stevenson of Balmacara
I support my noble friend Lady Lister in her amendment and have added my name to it. I thank the noble Baroness, Lady Tyler, for her contribution to this debate. This matter seems central to the thrust of this section of the Bill and it seems odd that the logic set out in the original consultation paper and impact assessment has not been brought to a proper resolution within the Bill.
Two issues are clearly at play here. It seems perverse not to permit people who may have a complicated and difficult transition between full-time caring and going to work to do that in chunks of less than a week. Although this has been explained to me by two notable experts, I still do not quite get why it is so difficult to calculate pay in terms of less than a week. I understand the complications of doing it on a shared-parenting basis, because there are two sets of employers and two sets of payments to be looked at and, obviously, the Government are the third person in the room. Even so, when I was last involved in serious payroll work, we had pretty good figures for what it cost to operate in terms of an hour, a day or a week. That came up particularly in relation to strike action. I am sure that the noble Viscount will have been in similar situations, although I am sure that workers in his businesses were never on strike against him. However, when workers go on strike and you have to deduct pay for it, you have to work out exactly what it is, otherwise you get into trouble. In the systems that I was operating, we had a clear view of what the cost was at that level. If you can calculate what it costs per hour to employ somebody, you can presumably also make the system flexible enough to allow them to work in less-than-week blocks, which is one of the proposals in the amendment. On part-time leave, all the points have been made and I support them.
Viscount Younger of Leckie
My Lords, the Government understand the intention behind the amendment and I am glad of the opportunity to have this short debate on the issue today. Before I respond to this specific amendment, I should like to take a moment to set out the rationale behind the introduction of shared parental leave and the importance of these changes for families. Bearing in mind the tenor of the comments made earlier by the noble Lord, Lord Stevenson, about brevity, I shall attempt to be brief.
The restrictions in the current maternity and paternity system are outdated and do not reflect the way in which modern families want to raise their children. They compel mothers to take the bulk of the time off and give fathers no choice but to stay at work in the early stages of their child’s life. This approach maintains the outdated perception that a mother’s place is in the home and a father’s place is at work. It is known to damage women’s career prospects, because employers expect young women to take large amounts of time out of the workplace to raise children. It can also mean that mothers feel unsupported in caring for a child, and fathers do not feel involved in their child’s upbringing.
It is right that mothers are able to take all the leave that they need to recover from birth and to bond with their new baby. However, they should be able to return to work without sacrificing the rest of their leave. This should be available to the family to use in whatever way they choose. For some families, this will mean that the father takes on the majority of the caring responsibilities very shortly after birth. For others, it will mean mixing periods of work with periods of leave to share childcare. This Bill will make this possible for the first time. The introduction of shared parental leave and pay aims to give families flexibility in how they share childcare when they have a baby. The current arrangements are rigid and inflexible, enabling only one parent to take leave at a time and allowing parents only to “take it in turns” to care for their child.
The changes introduced by the Bill will enable parents to take leave in blocks as small as one week and will remove the restriction on parents taking leave together. The Modern Workplaces consultation, which the Government published in May 2011, set out the Government’s ambition for leave to be taken in blocks of less than a week to allow parents to take leave on a part-time basis. Unfortunately, in this instance, this worthy ambition has not been possible. I will explain why.
The UK has one of the most flexible labour markets in the world. UK employment legislation gives employers and employees freedom to agree individual contracts between themselves, without restricting them to set working hours or working patterns. Shared parental leave is flexible. It will allow parents to choose how to share it between themselves and to take leave as an individual right, in discussion with their employer. This variation in working arrangements creates a difficulty when trying to allow shared parental leave and pay to be taken in part-week blocks.
Here, I disagree with the noble Lord, Lord Stevenson, over the mathematical calculations. One parent may have a standard working week of 37 hours a week, or 7.2 hours per day, and their partner may work 16 hours per week working two eight-hour days. Calculating the ratio of the weekly entitlement to shared parental pay that should be paid when an individual takes one day off would be complex for an employer. However, this is magnified when a parent decides to transfer their remaining part-week entitlement to their partner for them to use. It would be even harder for small businesses, without access to an HR resource, to administer. The Government are mindful that shared parental leave and pay will be an innovative system. To add into the new system the facility to take leave and pay in periods of less than a week risks creating significant additional costs and burdens for employers.
The Government instead propose to allow shared parental leave to be taken on a part-time basis, using a principle that is already well used and understood by employers. Under existing maternity leave provisions, mothers are able to return to work for 10 individual working days without ending their maternity leave or losing their entitlement to maternity pay for that week. These are called keep-in-touch, or KIT, days. The Government propose to give parents on shared parental leave additional keep-in-touch-style days to allow part-time working on shared parental leave without affecting entitlement to statutory shared parental pay. It is intended that these days will have a different name in the context of shared parental leave, which I hope addresses one of the points made by the noble Baroness, Lady Lister, because the intention for shared parental leave would be different from the intention for maternity leave. The name would reflect the fact that these days can be used to achieve a part-time working pattern or a staggered return from shared parental leave.
The Government are aware that some interested parties, such as the TUC, are concerned that there is no requirement on an employer to pay an employee more than their statutory payment when they are taking a keep-in-touch day. The Government will provide guidance to employers on how to use these provisions and will strongly encourage employers to pay an employee their full contractual rate if they work on a keep–in-touch day.
The Government believe that it is important to maintain the flexibility in keep-in-touch days to allow parents to return to the workplace for short visits. The Government do not wish to discourage these sorts of visits by forcing an employer to pay an employee’s contractual rate. However, where an employee is undertaking work, it is appropriate that that employee is paid accordingly. Keep-in-touch days are entirely discretionary for both an employee and employer to use. An employer cannot insist that an employee uses a keep-in-touch day and an employee cannot insist that their employer allows them to work part-time by using a keep-in-touch day.
As I have mentioned, shared parental leave and pay is an innovative system and will need time to bed down. It is right that proposals for leave and pay to be taken in periods of less than a week should be considered alongside any review of the shared parental leave system. The noble Baroness, Lady Lister, asked why we do not take powers in the Bill to allow shared parental leave to be taken on a part-time basis, to be set out, in effect, in regulation. The Government are sympathetic to this proposal but without a clear policy to enable the shared parental leave to be taken part-time, regulations cannot be designed at this time. My department has explored this fully and will continue to consider it as part of the review of shared parental leave.
I hope that reassures the noble Baroness that the Government share her ambition and I ask her to withdraw her amendment.
Baroness Lister of Burtersett
My Lords, I am very grateful to the noble Baroness, Lady Tyler, and my noble friend Lord Stevenson for their support for this amendment. The noble Baroness’s own experience is extremely important in terms of easing children back into childcare.
I will say more about this when I speak to my next amendment but I very much share the Government’s philosophy, as set out by the Minister, on shared parental leave. That is why I am so disappointed that they are not willing to go that little bit further.
I can see that there are administrative difficulties; I am not convinced that they cannot be sorted out. I am slightly encouraged by what the Minister said about changing the name of the keep-in-touch days and sending out guidance to employers about payment. I do not know whether the Minister has any figures now—perhaps he could let me know—on what proportion of such days are paid at present. It would be quite helpful to know that, perhaps before Report, in case we want to come back to this matter.
No one is asking for these regulations to be drafted now. Quite often a Bill will go through and regulations are not drafted for some time afterwards. Would it not be easier to put them in the Bill now? Even if nothing is done until the review takes place, at least they are there without having to legislate again, if by that time it becomes clear that part-time leave is really necessary for the shared parental leave provisions to fulfil the goals that we share with the Government. I hope that the Minister might be willing to think again about that. We are not asking for those regulations to be laid now, simply that the framework is there to enable flexibility in the future. On that basis, I withdraw the amendment.
Lord Touhig
“( ) Where, during an employee’s shared parental leave, it is not reasonably practicable by reason of redundancy for the employer to continue to employ him or her under an existing contract of employment, the employee is entitled to be offered a suitable alternative vacancy that arises during the shared parental leave period.
( ) The shared parental leave period means the period from the date of notification of intention to take shared parental leave, ending at 52 weeks from the birth of the employee’s baby.
( ) Where there is a suitable alternative vacancy with the employer or his successor or an associated employer, it must be offered before the end of the existing contract of employment and takes effect immediately on the ending of the previous contract.
( ) The new contract of employment must be both suitable work for the employee and appropriate for him or her to do in the circumstances and its provisions as to the capacity and place in which he or she is to be employed, and as to the other terms and conditions of employment are not substantially less favourable than if he or she had continued to be employed under the previous contract.”
Lord Touhig (Lab)
My Lords, the purpose of my Amendment 266AAA is to replicate vital existing protections afforded to women on maternity leave within the new system of shared parental leave. It provides protection to parents for the entire period during which they are entitled to take shared parental leave, rather than simply the period when they are actually away on leave. The amendment replicates the approach taken by Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999. This states that in the case of a redundancy, women on maternity leave must be offered any appropriate alternative vacancy. Such protections have been crucial in giving women the confidence to take the statutory maternity leave to which they are entitled, thus overcoming the fear that in so doing they may be adversely affecting their job or career prospects.
It is important that the new system of shared parental leave allows parents to feel a similar level of confidence when taking leave. The intention of the new system is that parents can take leave in short, discontinuous blocks. Consequently, for this to happen, protection must not be limited to those periods when a parent is actually on leave, as this would discourage parents from using the new system of shared parental leave in the way in which the Government hope and intend that it should operate.
The importance of designing appropriate protections for parents taking leave under the new system has already been acknowledged by Ministers in the other place. This amendment not only creates the necessary protections to ensure that parents have the confidence to use the new system of shared leave as intended but creates a system of protections that is easy for both employee and employer to understand. The clarity and scope of the protection offered by this amendment will give parents the confidence they need to fully utilise this new scheme of shared parental leave. I beg to move.
Lord Stevenson of Balmacara
My Lords, Amendments 266AB, 266AC and 266C in this group stand in my name. Taken together, these would ensure that existing protections in relation to redundancy and leave are not lost by requiring rather than permitting regulations regarding redundancy during shared parental leave to be made and to include provision requiring an employer to offer alternative employment.
Amendment 266C would enable a parent who has taken a period of leave of 26 weeks or less to return to the same job, and not just a job within the same employer. My noble friend Lord Touhig has set out the general case for where these amendments would take us. I would like to pick up a particular aspect of that which is the growing concern about discrimination. Maternity rights and employment regulations that enable parents to balance work and family responsibilities have been key drivers in giving women greater access to work and, importantly, an independent income. Over the past few decades, thanks in no small part to changes to workplace protections, women have entered and stayed in the labour market in unprecedented numbers. However, there is still far to go. Our workplaces have not adapted to meet the needs of this changing and gender-diverse workforce. Women pay a penalty in the workplace as a result of spending time away from the labour market to have and care for children, and this time away often negatively affects future career prospects and earnings. This “motherhood penalty” helps hold the glass ceiling intact and reproduces gender stereotypes about women as the “caring sex” that fuel occupational segregation, to which the Minister referred in a previous debate. People often talk about jobs being characterised as men’s or women’s work. For too many women, this still culminates in pregnancy discrimination more generally in the workplace.
One of the cumulative impacts of the effects of the “motherhood penalty” is that it ultimately leads to a lack of women in positions of power at the top of all quarters of political, public and professional life. We surely all feel that that is out of date. Even before the recession began, it was estimated by the Equal Opportunities Commission that up to 30,000 women lost their jobs due to pregnancy discrimination each year. There has been no similar research into the incidence of pregnancy discrimination following the economic downturn, but all the indications are that it has increased significantly. In times of austerity, when employers cannot afford to take any perceived risk to making profit and growing business, discrimination against women in the workplace is likely to rise as women, particularly of child bearing age, appear to be the riskier and less affordable choice for employers.
Working Families, which has been helping us with research in this area, has evidence that many women are subject to discrimination while pregnant or on maternity leave. Its helpline report provides evidence of a hardening of attitudes among employers and more blatant discrimination taking place. This includes women being sidelined or left out when promotions are being considered, demoted on return from maternity leave, and in some cases women suffer harassment and pregnant workers are sacked. These are unacceptable practices and these amendments would help to remedy them.
Viscount Younger of Leckie
My Lords, I am glad that these amendments give us the opportunity to debate the detail of how shared parental leave will work in practice for families. Shared parental leave will offer families new choice and flexibility about how they manage their childcare arrangements in the first months of a child’s life. It is true that this opportunity will be used by parents only if they feel confident that they will continue to be treated fairly in the workplace when they return.
Current maternity and additional paternity leave provisions provide protections to parents against dismissal; additional support when parents are absent from the workplace during a redundancy process; and the right to return to work into the same job, or in certain cases if that is not reasonably practicable, a similar job that is suitable for them and of equal standing. These protections are important to parents and will directly influence the decisions they make in whether to take maternity or paternity leave. Mothers on maternity leave and fathers taking additional paternity leave currently have protection from detriment while taking leave. Parents taking leave also have the right to be offered a suitable alternative vacancy in a redundancy situation, where there is one available. This alternative must be suitable and appropriate for the individual.
The Government recognise that it is important to provide employees with protection from discrimination and detriment when they are absent from the workplace for parental reasons. I am grateful to the noble Lord, Lord Stevenson, for raising this. I believe that we think alike on this important issue. Furthermore the Government believe that pregnancy discrimination and discrimination against parents taking leave to care for their children is unacceptable in any form. This is why the Government have recently announced new research into the attitudes of employers on pregnancy and maternity leave as well as the prevalence and causes of pregnancy discrimination in the workplace. This research will be jointly funded by the Commission for Equalities and Human Rights, the Government Equalities Office and my department, the Department for Business, Innovation and Skills.
I would like to reassure the Committee that the Government intend to make regulations to provide appropriate protections for employees in the case of shared parental leave. The Government recognise that it is important to provide protections for parents who are absent from the workplace on parental leave and are currently considering the most appropriate way to protect parents taking shared parental leave from being disadvantaged in a redundancy situation. The Government intend to publish draft regulations in the coming months on all key elements of the shared parental leave policy. This will include the details of the protections while on shared parental leave. The Government’s approach will recognise the difficulties that parents may face when taking shared parental leave. Any protections will be proportionate to support parents in an effective way, enabling them to take leave with confidence that they will not be disadvantaged. This will be balanced with the needs of employers to be able to manage their employees effectively.
I turn now to the right to return to the same job. Mothers returning from a period of ordinary maternity leave have the right to return to the same job. This protection is also applied to fathers taking additional paternity leave. Where mothers return to work after a period of additional maternity leave they have the right to return to the same job, or where this is not reasonably practicable, the right to return to a similar job which is suitable and appropriate, the point that the noble Lord, Lord Touhig, made earlier. The Government consulted on how to apply these important protections to parents taking shared parental leave in an appropriate manner. Shared parental leave will create different challenges for employers. An employee will be able to take short, discontinuous absences from the workplace under shared parental leave and this means that employers will have more opportunity to engage an employee in any reorganisation at work while they are in the office.
The Government are currently carefully considering the responses to the consultation on the administration of shared parental leave. This includes how to apply the right to return to the same job to parents taking shared parental leave. I am grateful to the noble Lords, Lord Stevenson and Lord Touhig, for bringing this important matter to the attention of the Committee, but I hope they are reassured that the Government intend to provide protections for parents taking shared parental leave, and the commitment that the details of this will be set out in regulations in the coming months. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.
Lord Touhig
My Lords, in what seems an age ago now, I was once the Labour Party parliamentary candidate in Richmond upon Thames and I was invited to address a conference of Labour women. I saw the hackles go up when I said that, as a country, we were wasting a fortune educating women because when they complete their education we put every barrier in their way to stop them getting a job and having a family which, as a man, I take for granted. We still have a long way to go to make sure there is fairness and equality for women in the workplace. I am encouraged by what the Minister says about how we might see the hopes of the amendments tabled by myself and my noble friend Lord Stevenson realised in regulations. All I can say to him when he draws up his regulations is to think of the Welsh “chwarae teg”—fair play. That is all we are asking for. I beg to withdraw the amendment.
“Rights to father quota of leave
(1) In Part 8 of the Employment Rights Act 1996, after section 80E insert—
“80EA Entitlement to father quota
(1) The Secretary of State may make regulations entitling an employee who satisfies specified conditions as to the relationship with a child or expected child or with the child’s mother to be absent from work on leave under this subsection for the purpose of caring for the child.
(2) Regulations under subsection (1) shall provide that such leave shall be taken before the end of a period of 56 weeks beginning with the date of the child’s birth.
(3) Provision under subsection (1) shall secure that where an employee is entitled to leave under this section in respect of a child he is entitled to at least four weeks’ leave.”
(2) In the Social Security Contributions and Benefits Act 1992, after section 171ZT insert—
“171ZTA Entitlement to father quota
(1) Regulations shall provide that where an employee is entitled to a father quota of leave under section 75E of the Employment Rights Act 1996, the employee is to be entitled to payments known as “father quota pay”.
(2) Father quota pay under subsection (1) shall be at the earnings related weekly rate of 90 per cent of the employee’s average earnings for the first six weeks in respect of which it is payable, followed by a fixed weekly rate thereafter which shall not be less than the weekly rate of the full time national minimum wage in respect of the remaining portion of the father quota pay period.””
Baroness Lister of Burtersett
My Lords, Amendments 266B and 266CA concern the father’s entitlement to and use of parental leave. Amendment 266B paves the way, again by means of secondary legislation, for a father quota. Such a quota would provide a father with an independent right to at least four weeks’ parental leave at 90% of his earnings for up to six weeks.
This is a probing amendment designed to air the issues, so I do not propose that we go into the precise wording. I am grateful to the Fatherhood Institute and Working Families for their support on the amendment, which also has the support of a long list of other organisations, and to the noble Viscount for engaging so constructively both in writing and in person. Lastly, I am grateful to the noble Baroness, Lady Young of Hornsey, for adding her name to the amendment, but she apologises that she cannot be here today for family reasons.
In my academic work on women’s citizenship in the broad sense of the term, I have concluded that women will achieve genuine equality in the public sphere of the labour market and the polis only when men play a greater role in the private domestic sphere of the home. To take one example, unequal sharing of caring work between the sexes has been identified as the largest single driver of the gender pay gap. Shifting what is called in academic jargon the “gender division of labour” is therefore critical to gender equality. As my noble friend Lord Touhig has just pointed out, we still have a long way to go.
From the perspective of children, the Minister acknowledged in his letter to me the important role that fathers have to play in childcare and the beneficial impact of their involvement in the early stages of their child’s life. Indeed, he has reiterated the point today. There is no disagreement between us on the end goal of enabling and encouraging fathers to be more closely involved in the care of their children, be that from the perspective of gender equality or the best interests of the child—or, as the Joseph Rowntree Foundation report that I mentioned argued, tackling in-work poverty among families with children.
The cross-national evidence suggests that a key policy lever to achieve this goal is to preserve a period of adequately paid parental leave for fathers on a “use it or lose it” basis. A European Commission document on the role of men in gender equality states that,
“the ‘nordic’ model of parental leave (‘father quota’) has been adapted and implemented with growing success”,
and recommends its adoption across the Union. Even Germany, which hung on to a male breadwinner model longer than many other European countries, has gone down this path and, like a number of other countries, has added a bonus to the overall length of paid leave if the father takes a specified period. The UK is in danger of becoming a European laggard when it comes to a forward-looking parental leave policy.
The coalition Government’s Modern Workplaces consultation placed great emphasis on the value of shared parenting and proposed just such a scheme as a means of encouraging fathers to play a more active role in their children’s upbringing. It observed that,
“international evidence suggests that fathers’ usage of parental leave is higher under schemes that offer them targeted or reserved leave as opposed to just making shared leave available to the father”.
In Iceland and Norway, fathers using parental leave increased from tiny proportions to 80% and 90% respectively following the introduction of reserved leave. Iceland is particularly interesting because it provides for three months each for the mother and the father and three months to be shared between them as they wish, and it has just been agreed unanimously to move to a five-plus-five-plus-two model because it has been so successful. The average number of days of leave taken by fathers more than doubled between 2001 and 2008 as a result. According to the World Economic Forum, Iceland now ranks first in the world for gender equality.
More generally, the latest issue of the International Review of Leave Policies and Related Research conducted by the International Network on Leave Policies and Research concludes that it is striking that fathers’ use of leave responds to policy changes. There is also evidence to suggest that the more the father is involved when the child is very young, the more involved he is likely to be as the child grows older, to the benefit of fathers, mothers and children. Of course, as the Fatherhood Institute concedes, it is not possible to prove a causal relationship, but it suggests that the association is strong and consistent.
Baroness Tyler of Enfield
My Lords, I am sympathetic to the thinking behind the amendment. The idea of a “father quota”—an independent right for fathers to at least four weeks of leave—could be important if we are to achieve our aim, which the noble Baroness, Lady Lister, set out clearly and which is all about changing the culture.
There are two aspects of the culture that need to be changed. One is the expectation within the workplace, on the part of both employees and employers, about who is going to take parental leave. The burden is so much on the mother at the moment that the new legislation, which I strongly support, could make a reality of encouraging fathers to take parental leave and be much more involved in the early days and weeks of looking after newborn babies and children in their first year.
The second culture change that we are looking for is a different way for couples to decide how they are going to juggle bringing up their children and their work responsibilities—something that many people struggle with. We all know that it is not easy. What the Government are proposing is very helpful, but I want to see something that is going to provide that additional incentive to fathers to take this up. I really like the phrase “use it or lose it” because it says clearly what we are trying to do here.
The noble Baroness, Lady Lister, went through the evidence comprehensively, so I certainly do not intend to repeat that. When I reviewed the evidence, I was particularly struck by the impact that this had had in the nordic countries. It really seemed to be the thing that made the difference and started to tip the balance to get that culture change. If we really are trying to encourage fathers to take up leave—I think all of us here want to do that, judging by what has been said so far today—we need to take some heed of the international evidence of what works.
Baroness Meacher (CB)
My Lords, I will speak very briefly, having not participated in this Bill because of other commitments, in support of the noble Baroness, Lady Lister. As others have said, we are pressing here for a change of culture. We are looking for fathers to play a much more active role in the upbringing of their children. Clearly, as my noble friend Lady Lister has rightly said, if fathers are involved right at the beginning, they bond with the baby and will then be much more involved throughout the child’s early life. This has to be good. In my view, we are seeing that change of culture: more and more fathers are bonding with children in the early stages and being much more involved throughout the child’s life.
I want to put on record the link between this and what I regard as the Government’s very helpful inclusion in this Bill of a recognition of the equal importance of both parents to a child if the tragedy of divorce strikes. If you involve fathers very closely at the beginning of a child’s life, they bond, they become involved and they care for that child, but they are cut out after a divorce—which happens, as we know, all too often in this country year after year. This is actually very cruel. Maybe it was okay in the old days for men to remain outside the family, unattached, but if we are all working towards greater equality of mothers and fathers in terms of their involvement in the family—and therefore greater equality for women in the workplace—we have to follow through, as I believe the Government are trying to do, to the post-divorce situation, should that tragedy arrive. Having been through it myself, I know exactly how that feels for everybody. I strongly support the noble Baroness, Lady Lister, but it is very important to see these two parts of the Bill joined up.
Lord Stevenson of Balmacara
My Lords, this is a very interesting area, and I am grateful to my noble friend Lady Lister for bringing her expertise to bear on it and for analysing the case so well. It is curious that we are stuck on the horns of a dilemma here. We all agree that we are trying to bring in a new system which rightly promotes joint responsibility for children, in terms of the various histories that we have heard about already, and the future we wish to carve out in our country in which parents jointly take greater responsibility.
The underlying strain in that point, which has been brought up by the two recent conclusions from the noble Baronesses, Lady Tyler and Lady Meacher, is that we are coming from a position where fathers have not actively played a part, although there are notable exceptions and some of those might be present today. However, the generality which is revealed by the research is that fathers, despite what has been available to them up to now, have not taken advantage of it and, to misquote an earlier comment, they have “lost it”, in the sense that they have not taken what is available.
We have a reasonable expectation that the new arrangements will be a step in the right direction. However, will they be enough? That is the question. In particular, I was struck by the points made by the noble Baroness, Lady Meacher, about divorce situations, which we regret but which are a natural part of all this. Without the bonding early on or even quite late on in the growth of the child, the loss of the relationship between fathers, mothers and children in a divorce is tragic and will have a lifelong impact.
There is a big picture here; there is a lot of activity and change. This is a new system and the Government are rightly defensive of it, but the Achilles heel in their approach is the statement in the impact assessment that the take-up of the proposed new shared parental leave by fathers is expected to be very low—this has been mentioned already—at between 2% and 8% of those eligible, or between 5,700 and 22,800 fathers, representing less than 3% of all maternities a year. Is that really all that our expectations are for that? If it is, it is up to the Government to defend why that represents a satisfactory situation compared to the rhetoric that we have been listening to from the Minister, which tells of a glorious engagement of a much higher percentage where people would expect joint caring. It is not joint if only 2% or even 8% of those eligible are taking up what is available, and indeed are “losing it” if they do not.
It is indeed disappointing, as my noble friend Lady Lister has said, that the scheme of the parental leave model, which is good and which we support, seems to be suboptimal if it does not include anything new for fathers in their own right. It provides an enabling power for the Government to extend paternity pay by regulation, and there is already a power to extend paternity leave by regulation so it may be that the Minister can give us more hope that this will happen. However, the commitment does not seem to deliver the same outcome as the proposal in the amendment that we have just heard about. A father quota would mean that a father could take leave, as has been pointed out, on a much more flexible basis later on in the first year rather than in the early stages and perhaps even later, particularly when the mother is making the difficult transition back to work. The time would be at his choosing and the leave would not reduce the mother’s entitlement; those seem to be very important elements in this debate. I admit that I myself am not sure whether or not more is needed here but the case is certainly there to be answered, and I look forward to hearing what the Minister says.
The second amendment in this group, Amendment 266CA, suggests that we bear down with laser-like intensity on the facts and watch what happens: we would see how many fathers are taking this up, whether it is 2%, 8% or better. We would look at the relatively poor pay that has been provided for this, and try to work out what is going on here. That is also an important element of the new proposals, and it would be wrong to let it pass without signalling that we are concerned about it.
As the Official Opposition, we cannot yet support what has been proposed because it is a big spending commitment; I accept that, so we are not doing so. However, we suggest that more information, research, reporting, discussion, debate and academic work would give us a better handle on this for future times. If the powers are there in the Bill to do something about it, we would be satisfied with that.
Viscount Younger of Leckie
My Lords, I welcome this debate because it is important to ensure that the changes made by the Bill provide the right framework for modern families and workplaces. I commend the noble Baroness, Lady Lister, on the tremendous work she has done in the field of gender equality, and I know that she speaks from a position of great experience when debating these issues. As we are on the subject of gender equality, the noble Baroness raised the issue of the gender pay gap, quite rightly, through encouraging fathers’ involvement in home life. The Government agree that this is extremely important. That is why we are extending paternity pay powers in this Bill and will look to extend paternity leave and pay at a later date if we need to encourage fathers’ take-up, but I will be saying a little bit more about that later in my comments.
Greater paternal involvement brings enormous benefits to parents and children. Fathers who are engaged in caring for their children early on, as has been mentioned, are much more likely to remain involved as their child grows up. This involvement means that their children benefit from better peer relationships, lower criminality, fewer behavioural problems, higher self-esteem and higher educational attainment and occupational mobility. The Government are aware of the international evidence that demonstrates that fathers are more likely to take leave if it is reserved specifically for them and paid at a higher rate. The Government’s original ambition to extend leave reserved exclusively for fathers was set out in their Modern Workplaces consultation, which has already been pointed out. It consulted on the concept of a so-called “daddy month”, which would have reserved a portion of shared parental leave for fathers in a very similar way to the “father quota” leave entitlement proposed in this amendment.
Unfortunately at this time it is not possible to realise this ambition. The challenging economic circumstances have made such an extension simply unaffordable. Perhaps the noble Baroness, Lady Lister, will not be too surprised when I mirror what was stated in a response in the other place. Now is not the time to place additional burdens on businesses and the Exchequer and I realise that this immediate response will be disappointing to the noble Baroness.
The new system of shared parental leave will give families unprecedented choice about how to share the leave entitlement in the early stages of their child’s life. The Government hope that the flexibility and choice provided by the new system of shared parental leave will mean that fathers will take more time off to care for their children. The Government plan to review the decision on whether to extend paternity leave and pay by using information on the take-up of shared parental leave and pay from the series of surveys on maternity and paternity rights and work-life balance. If fathers are not taking up the new entitlement, the Government will look to extending paternity leave and pay to encourage more fathers to take leave.
The Government are taking powers in this Bill to allow for the extension of paternity pay which would enable the Government to extend paternity leave and pay at a later date through secondary legislation. I want to make that clear to the Committee. To maintain simplicity in the system, the Government consider it more appropriate to extend leave to fathers through an extension of paternity leave rather than introducing a new type of statutory leave which would be complicated to administer. Paternity leave is reserved exclusively for fathers and is already well established and understood by fathers and employers.
The noble Baroness, Lady Lister, mentioned an annual review. An annual review of this policy may not be possible or appropriate. The shared parental leave policy aims to encourage a long-term culture change in the UK to enable and encourage shared parenting in the early months after birth. Any assessment of the outcomes of the policy needs to understand how employee and employer attitudes, as well as behaviours, are changing. There needs to be flexibility in how this is monitored. The best source of information to understand employee attitudes is through surveys of employers and employees. This data take longer to collate to ensure that the survey includes individuals who have experienced shared parental leave. The Government believe that this is the most appropriate information to inform decisions about the effectiveness of the policy.
The noble Baroness, Lady Meacher, and other noble Lords in the Committee raised a very important issue about culture and the culture change that was necessary. I agree completely that culture change is what we need to see and the Government agree that it is essential. We will provide supporting guidance as soon as we can to help this change happen and to encourage employers and employees to embrace it. The extent to which the culture change we all seek has come about will be a critical part of the review of these reforms once they have had time to bed in.
The noble Baroness, Lady Lister, raised the issue of the father’s quota. If it would help, we will write to her with more details on that, in addition to the letter that I have written. The noble Lord, Lord Stevenson, asked why the level of take-up for fathers is estimated at between 2% and 8%. The impact assessment used figures from the maternity and paternity rights survey that I alluded to earlier in which fathers were asked whether they would like to take more time, if it was available. However, those are initial take-up estimates, and we hope that the culture change that I mentioned earlier will encourage a higher take-up in due course.
I hope that the noble Baroness, Lady Lister, and the noble Baroness, Lady Young of Hornsey, who is not in her place today, are assured by the commitments that we have made. The Government will review the take-up of shared parental leave by fathers and consider extending paternity leave and pay in due course, to encourage fathers to take shared parental leave. Finally, I can reassure the noble Baroness, Lady Lister, that if paternity leave and pay is extended at a later date, the period within which it can be taken will also be extended. However, I hope, in the mean time, that she will withdraw her amendment.
Baroness Lister of Burtersett
My Lords, I am very grateful to the noble Baronesses, Lady Tyler and Lady Meacher, for their support for this amendment. The noble Baroness, Lady Tyler, made a very important point about the workplace culture. The experience of some of the Nordic countries is that changing the workplace culture is crucial in encouraging fathers to take leave. There is a link between the right to parental leave and changing the culture, and I hope that the department will reflect further on that.
On the point made by the noble Baroness, Lady Meacher, it seems to me that if both parents were more involved in bringing up their children, it might keep them together. I am not sure whether there is any evidence to support that, but we know that conflicts about who does what in the home and so forth can contribute to breakdown. I am grateful to my noble friend Lord Stevenson for going as far as he was able to in the context, as I know he is sympathetic. I think we are all sympathetic, including the Minister. It is frustrating because I feel like the Minister made my case, in a sense, very eloquently, but then drew back from it by refusing to take that extra step.
I think I heard the Minister correctly and that he has made the commitment I asked for, which was that if paternity leave is extended, it can be taken later. The Minister is nodding his head, and it is very helpful to have that on the record. We now know that if paternity leave is extended at a future date, it could be taken—I hope he is saying—at any point during the parental leave period. That will reassure organisations outside that have been campaigning on this.
Unless this is what he proposes to write to me about, the Minister did not respond to my question about what plans the Government have to encourage fathers to take shared parental leave and whether he would give a commitment to consult on such plans and study what has been happening. There is a wealth of expertise—not so much mine but within this network—about what is happening in other countries. Again, I think the Minister is nodding his head, so perhaps I could put into the record that he is prepared to consult with the network of experts about how to achieve this culture change, even if we cannot go the full way in terms of having “daddy leave” in the legislation. The Minister has been nodding and not shaking his head in response to everything I have said. Does he want to say anything more?
Viscount Younger of Leckie
I will just confirm that, as part of the review, these issues will be looked at. It is extremely helpful to have the input and the views from the Nordic countries. I suspect that officials are already looking at that but it is helpful to be nudged in the right direction. We will certainly be looking at this in addition to the other aspects of the review.
Baroness Lister of Burtersett
My Lords, I thank the Minister, but we do not want to wait for the review in 2017-18 before steps are taken to try to achieve this culture change. The culture change needs to be achieved alongside the introduction of shared parental leave. Again, I hope that a commitment will be made to thinking now about how to make that change, rather than waiting for a formal review. Unless the Minister has anything else he wants to add on this point, I will withdraw the amendment.
Viscount Younger of Leckie
I rise only to say to the noble Baroness that I will be happy to continue these discussions with her. I stated earlier that I have not made a commitment to come back before 2018 and I would not want to do that today. Clearly, it is in everyone’s interests to make this work, and I have already said that we need more time than the noble Baroness has indicated in her remarks to ensure that the review comes through. However, we are happy to commit to consulting expert organisations both at home and abroad on how to achieve the culture change, which is something that I alluded to earlier.
Baroness Lister of Burtersett
I am grateful to the noble Viscount and for the constructive way in which he has engaged in this debate. On that basis, I beg leave to withdraw the amendment.
Lord Touhig
“(za) in subsection (2) at the end there is inserted “for each child born as a result of the pregnancy in addition to the entitlement to allow the Secretary of State to regulate for additional maternity leave under section 73;”
Lord Touhig
My Lords, Amendments 266D and 266E deal with multiple births. Amendment 266D seeks to allow additional leave and Amendment 266E seeks to allow additional maternity pay, both in proportion to the number of births.
I believe that these amendments are necessary due to the intense additional pressures that parents of multiple births face over those of single births. As a grandfather of twins, I can certainly testify to the truth of that. Currently both groups receive the same entitlements to pay and leave. Maternal stays during birth admissions are 60% to 70% longer for multiple births than single births. Even prior to birth, expectant mothers of multiple births are six times more likely to be admitted into hospital and more than twice as likely to be admitted into intensive care as expectant mothers of single babies.
In addition, twins are 10 times more likely to be admitted to neonatal special care units; 44% of twins and 91% of triplets are born prematurely and spend time in neonatal care. On average, parents of multiple births spend a larger proportion of their maternity and paternity leave in neonatal units, and both mothers and children are more likely to face serious health complications. All this reduces the amount of time that parents have to bond with their children and settle into parental life. They have less time to do what parents of single children have to do, even though they have more children to do it with. It is an alarming fact that 20% of mothers of multiple births suffer from postnatal depression, double the proportion of mothers of single children.
Parents of multiple births do not merely face additional emotional and health issues but financial ones. They are far more likely to experience economic hardship in the first 18 months of their children’s lives than parents of a single child. A report published this year by the Twins and Multiple Births Association, titled Multiple Births Parents’ Experience of Maternity and Paternity Leave, revealed that 61% of respondents did not have enough maternity and paternity pay to cover the cost of their leave. In order to get by, 32% stated that they put money on their credit card and they could not pay it off in full at the end of the month. More than half the respondents built up debt and a quarter built up debt of more than £2,000.
It is abundantly clear that parents of multiple births face very real additional challenges compared to their peers. Nevertheless, the current system treats both groups in the same manner. These amendments seek to introduce an element of responsiveness within the system to the very real difficulties faced by those who experience multiple births, in order to create a modern system of maternity leave.
I hope that the Minister will also consider taking prematurity into account in maternity leave legislation. It could be achieved by simply using “babies expected” rather than their actual due date when calculating maternity leave. I hope he will respond to that. I beg to move.
Lord Stevenson of Balmacara
My Lords, this is a long group, with a large number of amendments. It breaks into two parts. As I listened to my noble friend Lord Touhig’s very eloquent contribution on the question of multiple births, I wondered whether it might have been better to have a separate debate on each of them because the points he makes are very interesting and we do not want to lose them in consideration of other areas. I will plough on and hope that the Minister will deal with this group of amendments in two parts, even though I will be mixing them up in what I say.
The amendments in my name in this group remove the limit on fathers’ or secondary adoptive parents’ time off to attend antenatal appointments, which is currently restricted to two occasions of six and a half hours each. Amendments 267F and 267H introduce an alternative of “reasonable” time off for fathers or secondary adoptive parents. Amendment 267K proposes that additional time off should be provided for fathers or secondary adoptive parents where the pregnancy is of twins or multiple births, so in that sense it reaches out to the points that my noble friend Lord Touhig was making.
The introduction of time off for fathers and adoptive or surrogate parents to attend antenatal appointments is very welcome. However, the Bill not only limits the unpaid time off to just two appointments but prescribes the maximum amount of time that fathers can spend away from work to six and a half hours per appointment. The time limits should be determined by regulations—if at all—and should not be in the Bill.
I know it is a rule of thumb that Governments try to take Henry VIII powers whenever they can in legislation and Oppositions traditionally oppose them but I am afraid I am turning the cart round this time. I think the Government are being too detailed here. This area requires a sensitive regulatory approach; for example, the amount of time you need to go to an antenatal appointment largely reflects the complexity of the pregnancy and, indeed, whether it is a single or multiple pregnancy. If it is multiple, we know that that requires more scans. Having the time to do that is not just about the forthcoming child but is a chance for the other parent to be involved in looking after existing children.
We have a complicated situation here. We think it would be more sensible to try to find a formulation—which we have tried to set out in the amendments but we quite accept might need to be refined—under which fathers and secondary adoptive parents are allowed reasonable time off rather than only two appointments. After all, it is the case already that pregnant women are entitled to reasonable and paid time off to attend antenatal appointments, so we are looking for a bit of symmetry in that.
When we were having our second child, we had a rather complicated pregnancy, which took a lot of time, not just in travel to and from hospital but in the hospital and waiting times. I have personal experience of this and I understand the complications. I was lucky in that I was in charge of my own time and I could take the time off, but I recognise that if I had been responsible to another employer it might well have been difficult to get the sort of time that I felt was important to spend with my partner. I have a personal interest in that but it is not the determinant of my thinking. There is a broader issue here that the regulations would be a better place to do that.
I know that there will be arguments about the cost of absence and that employers may feel that, if nothing is put down, employees will take “sickies” and try to take more time than is required, but pregnancy is a complicated time. We should accept that there may be some rough edges to what one might want to do here, but the Government should try not to overspecify something that, by its very nature, will be more complicated and more reflective of the needs of the individuals concerned. I hope that these points will be taken into account.
Viscount Younger of Leckie
My Lords, I thank noble Lords for raising these important issues. Like the noble Lord, Lord Stevenson, I shall deal with the amendments in two parts.
I shall speak, first, about antenatal appointments and the amendments tabled by the noble Lord, Lord Stevenson, and my noble friend Lady Brinton. The Government wish to encourage the involvement of fathers and partners in pregnancy from the very earliest stages. Attendance at antenatal appointments forms a key part of this involvement. Research demonstrates that the greater the involvement of the father in the pregnancy, the more likely he is to remain an active father when the child is growing up.
Antenatal appointments are essential in all pregnancies to care for mother and baby. In cases where there are complications, they are particularly important. Complications during pregnancy may be associated with specific circumstances such as multiple pregnancies or existing health conditions.
Any pregnancy, however, can develop complications. This can happen at any stage and is always distressing for the parents involved. It is also likely to mean that the pregnant woman will need to attend additional antenatal appointments, often at short notice. Many fathers will wish to accompany their partners to these appointments to give practical and moral support. The Government wish to encourage them to do so.
Fathers and partners currently have no statutory right to time off to accompany their partner to an antenatal appointment. The changes that the Government are making in this Bill will enable all fathers who are employees or agency workers to take time off to attend antenatal appointments on two occasions. Equivalent provisions are also being introduced for adopters and certain intended parents in surrogacy arrangements. This is a significant step forward. It is important to emphasise that this provision is intended to provide a minimum standard to enable all fathers to take some time off to attend antenatal appointments with their partner.
Sixty-seven per cent of fathers currently take time off to attend antenatal appointments. Some are able to come to an informal arrangement with their employer; others may, for example, take annual leave or attend the appointment in the morning and make up time later in the afternoon. It is the Government’s hope that this right will encourage more fathers to take time off in addition to the time allowed.
The right to time off is capped at six-and-a-half hours per appointment. The Government want the amount of time off to which an employee is entitled to be reasonable to attend an appointment in their home area. Six-and-a-half hours represents half of the maximum working day under the terms of the working time directive. It is important to have a cap in order to be clear about what the maximum entitlement is and to avoid an employer having to go through a bureaucratic process to determine what is reasonable in the circumstances of their employee.
The introduction of this entitlement should help to create a culture change that makes more commonplace fathers taking time off to attend antenatal appointments. In turn, this will mean that more employers accommodate provisions beyond the statutory minimum. The impact of these provisions will be reviewed alongside the package of reforms in this Bill that introduce shared parental leave.
Lord Stevenson of Balmacara
I am grateful to the Minister for giving way. I did not detect the softening that I was hoping for in that response. Is the Minister really saying that a 6.5-hour standard for attending appointments will be in the Bill? Where does that place people who live in the Highlands of Scotland or remote parts of Wales, whose hospital will be several hours’ journey there and back? It seems ridiculous to specify something which the Government must know could not possibly be the standard applied in certain areas of the country.
Viscount Younger of Leckie
Of course, the noble Lord makes a fair point but this is the minimum requirement that is laid out. We feel it is fair that this should be done on the case of the maximum entitlement. There is every hope, particularly for those employees who work in the Highlands, for example, that the employer will take a reasonable view and will allow more time off if necessary, but we feel that six and a half hours is pretty reasonable.
I turn to the amendments tabled by the noble Lord, Lord Touhig. These relate to additional maternity provision for mothers who have multiple births. The early months after the birth of a child are often a joyful and exciting time, but I think everyone in this Committee would agree that they can also place great demands on parents. These demands are amplified when there is not just one new baby to care for, but two or more. Straightforward tasks such as feeding, changing nappies or leaving the house can pose enormous challenges. Multiple pregnancies often result in premature births, bringing additional health complications for the babies and stress for the parents.
Financial pressures on families with more than one baby increase as well. Having a baby is expensive, but when the costs double or triple it can be very daunting for the individuals involved. I can understand the desire of the noble Lord, Lord Touhig, to ensure that parents who have multiple children from the same pregnancy receive support at this challenging time. I applaud the fact that he produced some interesting statistics to support his comments. It is important, however, to bear in mind that the period of maternity leave to which women are entitled in Great Britain is one of the longest in the world. The purpose of this leave is to enable the mother to recover from birth and to bond with her new baby or, in the case of a multiple birth, her new babies. The amount of time off work that mothers take will vary depending on the needs and wishes of the individual.
The current maternity leave entitlement is 52 weeks per pregnancy, to which all employed women are entitled. The Government believe that this leave entitlement allows all women sufficient time to recover from all birth circumstances and care and bond with the baby or babies prior to returning to work. The vast majority of mothers choose to return to work before the end of the maternity leave period. Eligible mothers are also entitled to up to 39 weeks of statutory maternity pay or maternity allowance. Statutory maternity pay is paid at 90% of earnings for the first six weeks of maternity leave, and at the lesser of 90% of salary or £136.78 per week for the subsequent 33 weeks. Maternity allowance is paid at the lesser of 90% of earnings or the flat rate of £136.78 for the full 39 weeks. As with statutory maternity leave, this entitlement is per pregnancy rather than per child born.
Multiple babies will mean additional expenditure for families. It is important to emphasise, however, that statutory maternity pay and maternity allowance are not intended to go towards the additional costs of new babies. They are intended to provide a measure of earnings replacement to enable the mother to be absent from the workplace on maternity leave. The financial needs of different families will vary. The level of a mother’s income while she is absent from the workplace may also depend on contractual pay enhancements that are available to many women for part or, in some cases, all of their maternity leave. The eligibility of an individual for these statutory payments is underpinned by their labour market attachment and their relationship with an individual employer. The Government do not therefore consider it appropriate to link the amount of pay available with regards to any statutory pay following birth or adoption to the number of children in a pregnancy or adoption arrangement. I hope that noble Lords are reassured by this explanation and ask the noble Lord to withdraw the amendment.
Lord Touhig
My Lords, we have had a series of very good debates this afternoon with a listening Minister, although I fear that he has stopped listening in this debate. I am encouraged by some of the things he has said but it is pretty clear that the Government will make no movement whatever on my two amendments. We may need to return to this issue on Report but, for the time being, I beg leave to withdraw the amendment.
Baroness Massey of Darwen
“Statutory rights to leave and pay of prospective adopters with whom looked after children are placed, special guardians and family and friends carers
(1) In section 75A of the Employment Rights Act 1996 (ordinary adoption leave), after subsection (1) there is inserted—
“(1A) The conditions that may be prescribed under subsection (1) include conditions as to—
(a) being a local authority foster parent;(b) being approved as a prospective adopter;(c) being notified by a local authority in England that a child is to be, or is expected to be, placed with the employee under section 22C of the Children Act 1989;(d) becoming a special guardian under section 14A of the Children Act 1989;(e) becoming a family and friends carer in prescribed circumstances.” (2) In section 75B of the Employment Rights Act 1996 (additional adoption leave), after subsection (1) there is inserted—
“(1A) The conditions that may be prescribed under subsection (1) include conditions as to—
(a) becoming a special guardian under section 14A of the Children Act 1989;(b) becoming a family and friends carer in prescribed circumstances.”(3) In section 80B of the Employment Rights Act 1996 (entitlement to ordinary paternity leave: adoption)—
(a) in subsection (5), after paragraph (a) there is inserted—“(aa) make provision excluding the right to be absent on leave under this section in the case of an employee who, by virtue of provision under subsection (6A), has already exercised a right to be absent on leave under this section in connection with the same child;”;(b) after subsection (6) there is inserted—“(6A) Regulations under subsection (1) shall include provision for leave in respect of a child—
(a) placed, or expected to be placed, under section 22C of the Children Act 1989 by a local authority in England with a local authority foster parent who has been approved as a prospective adopter;(b) for whom a special guardian has been appointed under section 14A of the Children Act 1989; (c) placed in a family and friends care arrangement in prescribed circumstances.(6B) This section has effect in relation to regulations made by virtue of subsection (6A) as if—
(a) references to being placed for adoption were references to being placed under section 22C of the Children Act 1989 with a local authority foster parent who has been approved as a prospective adopter or to being placed with a special guardian under section 14A of the Children Act 1989 or to being placed in a family and friends care arrangement in prescribed circumstances;(b) references to placement for adoption were references to placement under section 22C or section 14A with such a person or to placement with a family and friends carer in prescribed circumstances;(c) paragraph (aa) of subsection (5) were omitted.”(4) In section 171ZB of the Social Security Contributions and Benefits Act 1992 (entitlement to ordinary statutory paternity pay: adoption), after subsection (7) there is inserted—
“(8) This section has effect in a case involving a child placed under section 22C of the Children Act 1989 by a local authority in England with a local authority foster parent who has been approved as a prospective adopter, or placed with a special guardian under section 14A of the Children Act 1989 or placed in a family and friends care arrangement in prescribed circumstances, with the following modifications—
(a) the references in subsection (2) to a child being placed for adoption under the law of any part of the United Kingdom are to be treated as references to a child being placed under section 22C in that manner or to being placed with a special guardian under section 14A or to being placed in a family and friends care arrangement in prescribed circumstances;(b) the reference in subsection (3) to the week in which the adopter is notified of being matched with the child for the purposes of adoption is to be treated as a reference to the week in which the prospective adopter is notified that the child is to be, or is expected to be, placed with the prospective adopter under section 22C or the week the special guardian is expected to be appointed or the week the child is expected to be placed in a family and friends care arrangement in prescribed circumstances;(c) the reference in subsection (6) to placement for adoption is to be treated as a reference to placement under section 22C of section 14A or to placement with a family and friends carer in prescribed circumstances;(d) the definition in subsection (7) is to be treated as if it were a definition of “prospective adopter” or “special guardian” or “family and friends carer in prescribed circumstances”.(9) Where, by virtue of subsection (8), a person becomes entitled to statutory paternity pay in connection with the placement of a child under section 22C or 14A of the Children Act 1989 or placement with a family and friends carer in prescribed circumstances, the person may not become entitled to payments of statutory paternity pay in connection with the placement of the child for adoption.”
(5) In section 171ZE of the Social Security Contributions and Benefits Act 1992 (rate and period of pay), after subsection (11) there is inserted—
“(12) Where statutory paternity pay is payable to a person by virtue of section 171ZB(8), this section has effect as if—
(a) the references in subsections (3)(b) and (10) to placement for adoption were references to placement under section 22C or 14A of the Children Act 1989 or placement with a family and friends carer in prescribed circumstances;(b) the references in subsection (10) to being placed for adoption were references to being placed under section 22C or 14A or to being placed with a family and friends carer in prescribed circumstances.” (6) In section 171ZL of the Social Security Contributions and Benefits Act 1992 (entitlement to statutory adoption pay), after subsection (8) there is inserted—
“(9) This section has effect in a case involving a child who is, or is expected to be, placed under section 22C of the Children Act 1989 by a local authority in England with a local authority foster parent who has been approved as a prospective adopter, or placed with a special guardian under section 14A of the Children Act 1989 or placed in a family and friends care arrangement in prescribed circumstances, with the following modifications—
(a) the references in subsections (2)(a) and (4A)(a) to a child being placed for adoption under the law of any part of the United Kingdom are to be treated as references to a child being placed under section 22C in that manner or to being placed with a special guardian under section 14A or to being placed in a family and friends care arrangement in prescribed circumstances;(b) the reference in subsection (3) to the week in which the person is notified that he has been matched with the child for the purposes of adoption is to be treated as a reference to the week in which the person is notified that the child is to be, or is expected to be, placed with him under section 22C or the week the special guardian is expected to be appointed or the week the child is expected to be placed in a family and friends care arrangement in prescribed circumstances;(c) the references in subsection (4B)(a) to adoption are to be treated as references to placement under section 22C or 14A or placement with a family and friends carer in prescribed circumstances;(d) the reference in subsection (5) to placement, or expected placement, for adoption is to be treated as a reference to placement, or expected placement, under section 22C or 14A or placement with a family and friends carer in prescribed circumstances.(10) Where, by virtue of subsection (9), a person becomes entitled to statutory adoption pay in respect of a child who is, or is expected to be, placed under section 22C or 14A of the Children Act 1989 or placement with a family and friends carer in prescribed circumstances, the person may not become entitled to payments of statutory adoption pay as a result of the child being, or being expected to be, placed for adoption.”
(7) In section 171ZN of the Social Security Contributions and Benefits Act 1992 (rate and period of pay), after subsection (8) there is inserted—
“(9) Where statutory adoption pay is payable to a person by virtue of section 171ZL(9), this section has effect as if the reference in subsection (2E) to the week in which the person is notified that he has been matched with a child for the purposes of adoption were a reference to the week in which the person is notified that a child is to be, or is expected to be, placed with him under section 22C of the Children Act 1989 or the week the special guardian is expected to be appointed or the week the child is expected to be placed in a family and friends care arrangement in prescribed circumstances.
(8) In the Social Security Contributions and Benefits Act 1992—
(a) in section 171ZJ(1), at the appropriate place there is inserted—““local authority” has the same meaning as in the Children Act 1989 (see section 105(1) of that Act);”;
““local authority foster parent” has the same meaning as in the Children Act 1989 (see section 22C(12) of that Act);”;
(b) in section 171ZS(1), at the appropriate place there is inserted—““local authority” has the same meaning as in the Children Act 1989 (see section 105(1) of that Act);”;
““local authority foster parent” has the same meaning as in the Children Act 1989 (see section 22C(12) of that Act);”.”
Baroness Massey of Darwen
My Lords, Amendment 267, in the names of myself and my noble friend Lady Drake, suggests changes to the statutory leave and pay of prospective adopters with whom looked-after children are placed, special guardians and family and friends carers. Insertions are suggested to sections of the Employment Rights Act 1996 and sections of the Social Security Contributions and Benefits Act 1992.
We had a lengthy discussion on support for family and friends carers in Committee on 26 October. I shall summarise a few points from that debate as a background to today’s considerations. An estimated 300,000 children are being raised by relatives and friends. Only an estimated 6% of children who are raised in family and friends care are looked after by the local authority and placed with approved foster carers. Children in kinship care do better in terms of attachment and achievement, but their carers are under severe strain—95% of family and friends carers say so. In the previous debate I called them heroes, and so they are. We are not really addressing the inequalities and unfairness that they face at the moment.
The Kinship Care Alliance attributes this strain to three major factors: kinship carers are not entitled to local authority financial or other support—financial support is discretionary; many kinship carers have to give up jobs to support the children and they have no right to specific services and benefits. Despite guidance to local authorities in 2011 which stated what support they should provide by September 2011, 30% of local authorities do not have a family and friends care policy. Financial costs include the immediate cost of a child coming to live with a carer, the costs of applying for a legal order to provide the child with security and permanence, loss of income and pension rights and, finally, the considerable costs of raising a child.
Children who live with family and friends care have experienced similar adversities to those in the care system or who are adopted, yet foster carers get a national minimum financial allowance and the Government are rightly improving adopters’ rights to a period of paid leave on a par with maternity leave. However, the 95% of family and friends carers who are raising children outside the care system are not entitled to anything in paid leave when they take on the care of children.
The Family Rights Group’s publication Understanding Family and Friends Care, reflecting the latest survey of family and friends carers in 2012, reported that only one in eight of the 327 respondents who answered the question about the effect that becoming a family and friends carer had had, said that they had continued to work as before, and one in nine that their partner had continued to work as before. Indeed, 38% had to give up their job to take on the care of the children—in London the figure was 46%. Overall, the picture which emerged was that carers were likely to have made sacrifices in the workplace in order to care for the kinship children. Very few just carried on working as before. Many decreased their working responsibilities and their income by reducing their hours or stopping work altogether—sometimes, I have to say, at the insistence of social workers.
Children who have been through trauma or tragedy, and who may have multiple needs, require time to settle in with their carers. The carers are often required to attend a number of meetings relating to the care and needs of the children, but the absence of any right to paid leave means that we are forcing many family and friends carers to give up work in order to do right by these children. We are pushing them into a life of dependency on benefits and into severe poverty. Some are grandparent carers who are unable to get back into employment when their grandchildren are older. Some are younger sibling carers who have few qualifications and only a few years in employment when they take on their younger brothers and sisters, but later find it difficult to re-enter the labour market. Research has shown that three-quarters of family and friends carer households face severe financial hardship. I hope that the Government will be able to address these urgent issues, and I beg to move.
Baroness Drake (Lab)
My Lords, I support Amendment 267, which would bring family and friends carers and special guardians in employment within scope for statutory entitlement to pay and leave when taking on the care of a child. The Bill extends the right that adoptive parents have to take ordinary and additional adoptive leave to approved adopters who have looked-after children placed with them. By contrast, the vast majority of family and friends carers who are raising children outside the looked-after system are not currently entitled to even a day of statutory paid leave when they take on the indefinite care of a child. Many have no entitlement beyond a few days’ unpaid emergency leave. That is a public policy that conveys that kinship carers have less value or make a lesser contribution than other carers of children, even though the children they care for often have complex needs. That cannot be right.
The amendment would extend the same employment rights to family and friends carers who have special guardianship orders, and to family and friends carers who take on the care of a child in certain defined circumstances. It would give the Secretary of State the authority to define those circumstances, and would extend the right to additional adoptive leave to family and friends carers and those with guardianship orders, again giving the Secretary of State the authority to define the prescribed circumstances.
There is a stark imbalance in the proposed employment leave entitlements for adoptive and prospective adoptive parents when compared to the lack of entitlements for kinship carers. That is unfair, irrational and inconsistent with the Government’s policy on the welfare and protection of children. It is unfair in that kinship carers voluntarily take on the responsibility, often in very difficult circumstances and at considerable cost to themselves, saving the taxpayer considerable amounts of money and achieving better outcomes for the child than if they had entered the care system. It is irrational in so far as the statutory rights to leave for parents, adopters or prospective adopters have been or are being improved, but no statutory rights are extended to the kinship carers of thousands of our most vulnerable children. It is inconsistent with current welfare policy in that the absence of a statutory right to leave, on taking care of the child, raises the barriers to carers’ continued workforce participation and increases the likelihood that they will become long-term unemployed and dependent on benefits. That undermines participation in the workforce as a route out of poverty for the children and the carer.
During the passage of the Welfare Reform Bill, the Government recognised that family and friends carers make a valuable contribution by caring for vulnerable children, and exempted those carers from work conditionality under the universal credit during the first 12 months of caring for a child. The Government have time-limited that exemption in the expectation that many carers should return to the labour market after a period of adjustment, so why not make provision for a statutory entitlement to leave and reduce the incidence of kinship carers leaving the labour force in the first place?
However, the problems that kinship carers face do not lie only in the requirements of the welfare system, they also suffer from the complete lack of recognition in employment law. The imbalance in their right is inconsistent with the protection of child welfare, in that kinship carers need to take leave to settle the children, who have often been through so much. This often comes after a long period of family crisis; the children can be traumatised and insecure, and they need to know that someone is there for them. That is precisely why social workers often want or require carers to take time out of work. There are also the practical requirements of making appointments with schools, solicitors and social workers, arranging legal orders and so on. Often, the children arrive unexpectedly in just the clothes they are wearing, but there is not even the most modest statutory provision allowing employed carers leave from their employment. Yet kinship care is the most common permanency option for children who cannot live with their birth parents. The same arguments apply to the extension of parental leave to kinship carers as were advanced for the introduction of adoption leave in the Employment Act 2002: the need for time for children to settle with and bond to carers and the advantages of enabling carers to remain in the labour market.
To scope the problem, an estimated 60,000 kinship carers have dropped out of the labour market to bring up children. The reasons for this include the needs of the child, but the fact that they are not entitled to time off increases the likelihood of their leaving the labour market, so contributing to the high proportion of kinship carers living in poverty. Family Rights Group research found that one-third were living on incomes below £350 a week. Grandparents Plus found that 73% of kinship carers were working before the children moved in, but that almost half of those who had been working left their jobs when the children arrived. Some 83% of those who gave up work say that they would have liked to have remained in work, while of those who gave up work just 13% are now back in work. Similarly, a Family Rights Group survey found that 38% of family and friends carers had left their job, lost their job or taken early retirement when they took on the care of the child.
The Bill presents the opportunity to extend parental leave entitlements to kinship carers who take on the indefinite care of a child, and to give them parity with prospective adopters. The majority of family and friends carers are not entitled to even one day of statutory paid leave. That cannot be fair. The arguments for providing a right to leave are equally compelling, whether looked at from the perspective of the carer or of the child.
Baroness Howe of Idlicote
My Lords, I have been reminded by the noble Baroness, Lady Massey, that we have had this discussion in the past. It struck everyone at the time how completely unfair this whole system was. Now that the noble Baroness, Lady Drake, has spelt out so many comparisons, it is, frankly, almost embarrassing to think about the disadvantage that kinship carers suffer when they take on this responsibility and often—most likely, I would say—produce much better results for those children, giving them a likely prospect of a far more fulfilled life than if they had gone into different forms of care.
In supporting what has been said, I would say to the Minister that I would love to hear that this area was going to be looked at hard and, as far as possible, a range of comparable systems would be considered for kinship carers, those coming into care and those who are to be adopted. If he could give us that assurance, or indeed tell us that a lot of this is already in process, that would be very helpful in settling our minds until Report, if nothing else.
Baroness Tyler of Enfield
My Lords, I support the amendment. It has been set out so comprehensively and compellingly that I do not need to add very much. The case seems to be overwhelming that when people who are providing kinship care—often, as has been said, in the most desperate circumstances—agree to step in, often at great personal cost to themselves, it is only right that the state should recognise the hugely valuable contribution they are making.
These children are often in states of great distress and trauma, and for a member of the family to be able to step in and provide some degree of stability is really important. We all know the cost to the public purse of children in care who go, for example, into residential homes—it is huge. The savings that are made by a member of the family stepping forward in this way are considerable. We also know about the very poor outcomes for too many children in care when they emerge at the other end of the system. Kinship carers can make a huge contribution and it is absolutely right that society should acknowledge that. One very important way it could do so would be by extending these statutory employment rights to kinship carers.
Baroness Howarth of Breckland
My Lords, I will speak briefly to make two points. First, as the noble Baroness indicated, this is both a short-term and long-term financial issue. The previous Government and the present one, I fear, have taken the same position, which is that paying kinship carers in the short term would be too expensive. However, as many noble Lords have pointed out, it has tremendous value and advantage in the longer term. I only wish that a Government could, if not introduce the whole package, at least take one step.
I remind noble Lords that the Select Committee on Adoption Legislation, which I was part of, pointed out that there was very little difference in outcomes— indeed there might be better outcomes—for children who were in special guardianship orders compared to those who were adopted. However, we treat those two groups in a totally different way. That is irrational. If we could just make a start with special guardianship, where there is an order and it is quite clear that the care is going to continue, we would feel we were taking a step forward.
Overall, we spend very little these days. The news today is that we are almost unable to meet our commitments to protect children with child protection procedures and that social workers are under tremendous pressure. I notice that the noble Baroness, Lady Massey, glanced at me, because I am a social worker by background, when she said that social workers are actually insisting that people take the time off—of course they are, because, as the noble Baroness pointed out, they have a responsibility to make sure that these children are properly cared for. Most of those social workers would be delighted if they could recommend that they were paid for that. The old Section 1 of the 1963 Act, which used to help with this, has long gone, and there are very few provisions now to help these families get through even the initial difficult times, never mind the longer period of caring for a child who is not their own, with all the pressures that such a child brings.
Being the unlikely founder of the All-Party Parliamentary Group for Grandparents and Extended Kin—which is another story—I am concerned for grandparents, because they have reached a point where they thought life was going to be easier and they were going to be financially secure. However, they then find themselves bringing up children in their family—as they would wish to rather than let anyone else take over the care of the children—and somehow the state does not see it in its purview to give help to these families. With the changes in the benefits system, these families are finding it more and more difficult to survive. Consequently, as noble Lords know, more children will come into care. These situations will break down as families can no longer manage or social services think that it is inappropriate for them to do so.
I am quite sure that these amendments will not be accepted, as they have not been accepted in the past. However, I wish that there could be some thought, and some work undertaken, to see whether there is a step change that can move forward, through the various groups, to make it easier, particularly when a family has a legal order and responsibility for the children concerned.
Viscount Younger of Leckie
My Lords, I welcome this debate on another important issue. As has been said, and as the noble Baroness, Lady Howe, alluded to, the Government recognise the extremely valuable contribution made by family and friends in caring for children who cannot live with their parents. Noble Lords have spoken passionately about this issue today and I am struck by the depth and breadth of expertise on this matter in this Committee.
The noble Baroness, Lady Drake, raised the important issue of kinship carers dropping out of the labour market. I note that the noble Lord, Lord Touhig, is not in his place, but I hope that I can go a little way to restoring my reputation as a listening Minister by saying that we agree that it is important that kinship carers can remain in the labour market. The evidence that we have about this issue is limited, but I hope that noble Lords will be reassured if I explain that we are actively researching this issue. I shall say more about that in a moment.
During the debate on support for family and friend carers, my noble friend Lady Northover described the financial support with which local authorities are encouraged to provide families to help them to cope with the strain that caring for an additional child may put on household budgets.
The type of care arrangement that kinship and friendship carers provide varies a great deal. Some families care for children who need support during a short-term crisis, such as a parental illness. Other individuals take on care of a child on a long-term basis. My noble friend Lady Tyler, and the noble Baronesses, Lady Massey and Lady Drake, highlighted some other examples, including some statistics provided by Grandparents Plus, parents’ rights groups and other groups.
Given the variety of arrangements that exist, the Government believe that it is right to assess the needs of each family at the local level. Local authorities are best placed to establish relationships with these families and appraise their financial needs on an individual basis. This enables them to provide targeted support to the right people at the right time.
Special guardianship orders provide a more formalised and legally secure foundation on which a child can build a permanent relationship with his or her carer. In many cases, the child may already be living with the family when they make an application for a special guardianship order. However, this will not be the case for all families and some may have to adapt quickly to significant changes in circumstances—a point that was made earlier.
Special guardianship orders are an increasingly popular “permanence” option for children. However, they remain a relatively new legal status and special guardians are a group about which the Government have limited data. In particular, there is insufficient information about the way in which special guardians adjust to their new caring arrangements and how this may impact on an individual’s ability to remain in the labour market. I hope that I can reassure the noble Baronesses, Lady Massey and Lady Drake, by saying that we believe that it is essential to understand the issues that are faced by this group in order to ensure that they receive the support that is appropriate to address their needs. For this reason, my department, the Department for Business, Innovation and Skills, will undertake research into kinship and friendship carers and special guardians, and their participation in the labour market. We have already started to scope this, liaising with the Department for Education.
I recognise that research is not the same as support, but it is the first crucial step towards understanding what policy interventions would be most appropriate to meet the needs of these individuals. I hope that this reassures the noble Baroness and I ask her to withdraw her amendment.
Baroness Massey of Darwen
My Lords, I thank the Minister for that response and other speakers for contributing to this short debate. I am delighted to hear that the Minister has instigated research. There is an awful lot of research around already on this issue, so I hope that it will not be too lengthy. A later amendment from my noble friend Lord Stevenson suggests, I think, one year of probing and research. I do not think that we need a year to solve this one. The organisations that we have mentioned already have a wealth of data on the problems, statistics, anecdotes and case studies of family and friends carers. Therefore, I hope that any research will build on the existing research, will be carried out quickly, and that something will be done very quickly for these people who are saving the state lots of money, as has been said.
More importantly, these carers are saving children from disappearing down various plugholes in the system. It is well known that children need stability and love and kinship carers are known to provide this. It is too easy to take a short-term view. Generally, outcomes for children in care are poor—let us face it. They have poor or lower academic achievements, higher involvement in criminal activity and drugs and alcohol and more early pregnancies. This is a sorry story. Family and friends carers are stepping in and trying to mitigate this situation for their grandchildren, nieces and nephews or whoever, often at great cost to themselves, as we have heard. They are saving the state money and contributing to the welfare of children.
We have heard time and again that the Government are sympathetic to these carers. I have also heard time and again that local authorities are encouraged to give support, but that is not statutory support. As I said earlier, 30% of local authorities have no policy on family and friends carers. I agree that there is insufficient information on this and we must understand all the issues, so I appreciate that research will be needed. However, as I say, it must not be lengthy and must not delay help for these family and friends carers who are giving so much to society and the children whom they serve. I beg leave to withdraw the amendment.
Baroness Drake
“Kinship carers’ adjustment leave
(1) A qualifying employee who satisfies prescribed conditions may be absent from work at any time during an adjustment leave period.
(2) An adjustment leave period is a period calculated in accordance with regulations made by the Secretary of State.
(3) The regulations under subsection (2) above shall include provision for determining the extent of an employee’s entitlement to leave under this section but shall secure that where an employee is entitled to leave under this section he is entitled to at least four weeks’ leave, or for a longer period to be prescribed.
(4) An employee who exercises his rights under subsection (1)—
(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he had not been absent, (b) is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and(c) is entitled to return from leave to a job of a prescribed kind.(5) For the purposes of this section, an employee is a qualifying employee if he is a family and friends (kinship) carer looking after a child full-time because the parent(s) is unable to look after the child, in the first 12 months after the child moves in.”
Baroness Drake
My Lords, in moving Amendment 267A, I will speak also to Amendments 267B and 267C.
Amendment 267A proposes a new form of unpaid adjustment leave similar to parental leave—a modest entitlement of a one-off period of at least four weeks for a kinship carer during the first year after a child moves in. Often children arrive without notice and it may be unclear how long the child will be staying or whether it will be a long-term arrangement. However, the children have immediate and complex needs. Friends and kinship carers often lack parental responsibility when children first arrive because it takes time to arrange a legal order. Adjustment leave would meet kinship carers’ urgent need for time to adjust to the upheaval in the children’s lives, apply for a legal order, a residence or special guardianship order to secure the care of the child and attend numerous meetings, and would reduce the prospect of the carer being pushed out of their job as a consequence. The challenges they face were well articulated in the debate on the previous amendment.
Adjustment leave would be available for a kinship carer who can demonstrate that the children cannot live with their parent. A qualifying employee would have to meet prescribed conditions and the adjustment leave period would be calculated in accordance with regulations made by the Secretary of State. While they are seeking to secure the necessary legal orders, kinship carers may not fulfil the prescribed circumstances which the Secretary of State may have already, or may in the future, set for access to other statutory employment rights of leave. A modest period of unpaid adjustment leave would give such carers the urgently needed time to act to protect the child. At the moment they are given little or no support. The law recognises the need for an adjustment period for parents but gives no statutory recognition of any kind to kinship carers and no protection against the breaking of the employment contract when they take such urgent leave to care for the child.
The intent of Amendment 267B is to enable those with caring responsibilities—be they friends, family members or grandparents—for a child, a vulnerable adult or an elderly person to take up to two weeks’ leave per year unpaid in order to deal with pressing caring responsibilities. The amendment would give the Secretary of State the authority to define the prescribed conditions for qualifying employees and the period of leave, subject to an entitlement to two weeks’ leave in a given year. Parents of children are entitled to take up to four weeks’ parental leave a year, up to a total of 18 weeks, but many other carers do not have any statutory entitlement even to unpaid leave for a caring need, with the possible exception of a few days’ emergency leave.
Baroness Massey of Darwen
My Lords, I support my noble friend Lady Drake’s Amendments 267A, 267B and 267C. I will say a word later on Amendment 267BA after my noble friend Lord Stevenson has spoken to his amendment. My noble friend Lady Drake has set out the principles of these amendments comprehensively and I just want to add a few comments.
When children first move into kinship care, the carers and the children need time to settle and adjust to the upheaval in their lives. I know a kinship carer who received three children at midnight because their daughter had died from a drug overdose. That is an upheaval beyond imagination. She said that the children were grieving, she was grieving and they had very little time to do it properly. Children often arrive without notice in these circumstances. For example, a parent may be in hospital or there may be domestic violence or abuse. The proposal is for a period of leave similar to parental leave.
An estimated 60,000 kinship carers have dropped out of the labour market to bring up children. There are many reasons for this, including the high needs of the children and the fact that the carers are not legally entitled to any time off to accommodate the needs of the child, especially at a time of upheaval when everybody is in crisis and needs time to settle down.
Amendment 267 seeks the extension of emergency leave entitlement to grandparents, to enable a grandparent to take reasonable time off work to provide help where a grandchild is ill or to deal with an unexpected event at school, for example a school closure due to poor weather. Some families would prefer a working grandparent to be able to take time off to provide childcare when a child is ill or a school is closed. I—and, I would guess, several people in this room—have certainly taken time off or given up time to look after grandchildren when there has been a crisis in the family.
The amendment seeks to help parents to balance work and their caring responsibilities, and to relieve the pressure on families when a child has a problem. Currently, one in four working families depend on grandparents to provide childcare. Some 70% of all working grandparents say that they look after their grandchildren and 29% of grandparents are working. The impact on employment overall should be minimal as the amendment will spread across different employers the impact of an employee’s absence due to a family emergency, such as a child’s illness, rather than one employer, typically the mother’s, experiencing the full impact.
I was interested that in Denmark, apparently, it is usual when a child is ill for the mother to take the first day off, the father the second and a grandparent the third, which seems very sensible. Again, I support the amendments and I look forward to the Minister’s response.
Baroness Lister of Burtersett
My Lords, I support Amendment 267B, particularly from the perspective of carers for adults, although, of course, I also support it with reference to carers for children. A Carers UK/YouGov poll found that 22% of UK adults had seen their paid work negatively affected as a result of caring, including 2.3 million who had given up work as a result and about 3 million who had reduced their working hours to care at some point in their lives.
Research has demonstrated that the point at which caring begins to have a significant impact on carers’ ability to work is when 20 hours a week or more is provided, with some analysis indicating that the tipping point may be even lower at 10 hours. Without the right support, millions of workers are leaving work to care and the cost of this to individuals, business and the economy is huge. Recently, research by the Personal Social Services Research Unit at the LSE calculated the public expenditure costs of carers leaving paid work at a staggering £1.3 billion a year, based on the cost of carer’s allowance and lost tax revenues. Additional analysis by Age UK indicates that the economic cost rises to £5.3 billion when lost earnings are taken into account. One quarter of working carers report that they feel they receive inadequate support to enable them to combine work and care and only half think that their employer is carer-friendly. The survey of carers found that nearly two-thirds of carers in work have used annual leave to care, while nearly half have done overtime to make up for taking time off to care.
The task and finish group set up by Employers for Carers and the Department of Health states in its final report that,
“the issue of supporting carers to remain in work is not only a problem, but also an economic opportunity. Supporting carers to remain in work can bring considerable benefits to carers themselves, employers and the wider economy”.
This is partly a government publication.
Baroness Howarth of Breckland
My Lords, I simply want to ask a question. During the past Session, we have managed to achieve considerable integration between adult care, the health service and children’s care—looking after children’s carers. Why can the Department for Work and Pensions, or whatever department handles this sort of employment legislation, not also become much more integrated so that the whole package can be assessed appropriately? That may be too great a vision but maybe that should be the road we go along.
Lord Stevenson of Balmacara
My Lords, my amendment, which is part of this group, is rather low-key compared to the sort of debate that we have just had. It seems in vogue, in terms of what has just been said, that we should seek a compromise position that all parties could support in this area. As my noble friend Lady Lister has said, this seems to have all the hallmarks of an irresistible force that is moving forwards. These are pressing and important areas of activity in our social arrangements. They are suffering badly because they have not received the attention they should have done in previous Administrations, including our own, but the benefits of and the opportunities for making something better out of it are so great that the argument surely carries weight and we should be looking very carefully at it.
I do not wish to comment further on that but I make an offer to the Minister: if he would like to see whether a discussion between the parties might help to provide a context in which some of the good will that has been expressed in the Committee today can be taken forward, I would be very happy to participate in it. Obviously, we would need to work out what we were going to do with such an amazing compact, should there be one, but it would at least be a step in the right direction.
Our amendment does not go anywhere near that, except to build on what the Minister mentioned in response to Amendment 267, which was, in his careful phrasing, “a research project” to get some basic material out about this area. Amendment 267BA is looking at a review that would be carried out by the Secretary of State, on the impact of the lack of paid leave on kinship carers and special guardians left in the workplace, so it is narrower. I appeal to the Minister to see in that the opportunity to take another step down this path, which, like my noble friend Lady Lister, I hope is not too long. I hope for a little of his caring and listening mode on this occasion. I thought it was only in response to my noble friend Lady Lister and others that he adopted it, but perhaps this time he could listen to me as well.
Baroness Massey of Darwen
My Lords, I follow my noble friend Lord Stevenson in supporting this attempt to reach a healthy compromise. There is already a great deal of research and investigation into the plight of family and friends who are carers. I hope that that can be built on. There is a meeting with officials, which I think the Minister has set up for next Wednesday, and I hope that any noble Lord here who is concerned about this could get details of that meeting. I hope that at that meeting we could discuss this proposal for research and who will be involved. I hope, too, that, as the noble Baroness, Lady Howarth, has just said, that involvement will be integrated across various streams of various departments.
Viscount Younger of Leckie
My Lords, modern families come in all shapes and sizes, and it is important that we recognise the extremely valuable contribution that is made by many different individuals. I shall address each of these amendments in turn, beginning with Amendment 267BA. This amendment would require the Secretary of State to review the provision for kinship carers and special guardians, as moved a moment ago by the noble Lord, Lord Stevenson. As I have said in, as he put it, a carefully worded, but, I hope, clear response to the previous amendment, the Department for Business, Innovation and Skills will undertake research into kinship and friendship carers and special guardians and their participation in the labour market in order to ensure that support provided by the Government is appropriate to address these people’s needs.
The noble Baroness, Lady Massey, questioned the length of the research in the previous amendment and stated that plenty of research was already available. By way of reassurance—I hope that she takes it in this spirit—I would say that it is important that we take the time to scope the project properly in advance of starting the research. I welcome the input of the organisations mentioned and, indeed, others that might not have been mentioned. I give this commitment: I shall return to this House with further details on the likely timetable on Report and note some further carefully chosen words. The noble Baroness alluded to a meeting with officials that has been arranged. I confirm that it is set for next Wednesday at 11am. The Bill team will provide further details by e-mail about that meeting. I encourage as many people as would like to attend to come.
Turning now to Amendments 267A and 267B regarding adjustment leave for kinship carers and leave for carers, as I am sure noble Lords will agree, carers play a vital role supporting and caring for their children or loved ones, and they reduce the need for state funded care. These points were made with great passion today by a number of noble Lords. These individuals can often struggle to balance their work and caring responsibilities effectively and without support may not be able to stay in work. It is important that we recognise this contribution and provide carers with the support that they need to remain in the workplace. From time to time, carers may need time off to manage emergencies or breakdowns in care. Many kinship and friendship carers also experience a period of adjustment when a child comes to live with them. The noble Baroness, Lady Massey, gave the Committee a rather heartbreaking example of an occasion when a parent died of a drug overdose. If I read her correctly, the child appeared on someone’s doorstep.
Changes in living circumstances can happen suddenly and families may come under great strain to adjust quickly to the caring needs of a child who may be facing many complex issues and emotions. The right to time off for dependants enables them to take time off to make arrangements for their care. Once the child is living with kinship or friendship carers, he or she becomes their dependant, and any carer who is an employee will be entitled to time off. This enables the carer to take a reasonable period of time off work to take the action necessary to deal with specified short-term emergencies, and this is a day one right that is available to all employees. The employee does not necessarily need to give their employer advance notice of their intention to take leave under this provision as long as they inform their employer as soon as is reasonably practicable. This is because emergencies rarely come with notice, and again examples were given earlier in this debate.
The right to time off may not meet the needs of all individuals in all circumstances. Many employers provide additional forms of leave for compassionate reasons to enable employees to deal with sudden and often traumatic changes in circumstances. Caring is often a long-term responsibility. All carers, including kinship and friendship carers, may need to consider long-term changes to do with their changed circumstances. The Government believe that the right support for carers is to allow them to change how they work to better accommodate their caring role on a long-term basis.
Carers are already eligible to make a statutory request to work in a flexible way under the current legislation. However, the extension of the right to request flexible working in Part 8 of this Bill will drive a culture change which should mean that flexible working becomes more widespread and better integrated into standard working practice. My department, the Department for Business, Innovation and Skills, has been working closely with the Department for Work and Pensions and their private sector working group to encourage more employers to consider flexible working practices when they are designing and advertising jobs. They have developed, for example, a strapline to use when advertising jobs: “Happy to talk flexible working”. This should increase the availability of jobs that can be done in a flexible way, thus enabling more carers to remain attached to and re-enter the labour market.
Extending the current right to request to all employees will enable more people, including those who have more informal or infrequent caring responsibilities such as kinship or friendship carers, to retain an attachment to the labour market when they have experienced significant changes in their personal circumstances. The noble Baroness, Lady Drake, raised the issue of supporting grandparents to remain in work when they provide childcare. The Government agree that it is important to support the needs of older people and grandparents, and to help them stay in work, especially when they have caring responsibilities. This has been a key driver behind the extension of the right to request flexible working, and it will help these groups to balance work and care commitments on a long-term, sustainable basis. It will support the informal caring that is often provided by grandparents, about which I will have a few more words to say later.
I turn finally to Amendment 267C regarding emergency time off for grandparents. We have heard many examples of the invaluable practical and emotional support provided by grandparents to their children and grandchildren, an issue raised particularly by the noble Baroness, Lady Drake. I welcome this debate as an opportunity to pay tribute to the vitally important role that grandparents play in supporting families to juggle work and childcare responsibilities.
The issue of emergency time off for dependants was debated during the passage of this Bill in the other place. The Minister for Employment Relations and Consumer Affairs outlined the qualification criteria for this type of time off, and for the benefit of noble Lords I shall do so again here, albeit fairly briefly. This provision is intended to give employees a statutory entitlement to time off work to deal with an emergency involving a dependant. The qualification criteria for this type of time off are deliberately broad, and this is to ensure that any employee on whom a person reasonably relies to make arrangements for the provision of care is able to qualify for this type of time off in circumstances where there has been an unexpected disruption or termination of care arrangements. It is important to emphasise that the legislation enables all employee grandparents who are relied on to make arrangements for the provision of care for their grandchildren to qualify for this time off in such circumstances.
Baroness Drake
I thank noble Lords who have spoken in this debate. I thank the Minister for his response, and I shall respond to some of his points. Obviously, it is welcome that the Government are looking at the issue of kinship carers and employment but, like my noble friend Lady Massey, I have to ask how long that will take. The issue is now pressing and urgent, and it is not a new one; the question of the lack of protection for this group of people was well aired during the Welfare Reform Bill.
I hear what the Minister says about scoping the project, but a lot of work was done by the noble Lord, Lord Freud, and the DWP team to identify this community and the challenges that it faces. Hopefully, that is banked and does not have to be repeated. The issue here is that, at the moment, maybe with the exception of getting a bit of emergency leave, the statutory provisions in this country do not protect individuals by giving them a statutory right to leave and an ability to keep their employment contract in place. It is welcome that the Government are going to return with a likely timetable before Report.
Most noble Lords here are familiar with the emergency leave provisions, but those do not address the kind of fundamental challenges that kinship carers face when they take on a child at very short notice, with all the complexity and problems that go with that, and subsequently become confirmed as the permanent long-term carer of that child. It is a little drop of a contribution and does not really start to tackle the fundamental challenges that many of them face. It still does not address the glaring imbalance between the support provided to prospective adopters, parents and surrogate parents when it comes to statutory protections. They are the Cinderellas and, consequently, so are the children they look after.
Flexible working proposals are clearly welcome. They are very important in allowing carers to balance their relationship with whoever they are caring for and to stay in work on an ongoing basis, but they do not of themselves provide the statutory right to leave, which is the essential issue for many people when they are either facing a pressing caring need or taking on a child in urgent circumstances. The flexible working arrangements do not necessarily address the immediate problem of the requirement for leave while allowing the employment contract to stay in place.
I hear what the noble Viscount says about grandparents. I have read the statutory provisions and the guidance—I must go and read them again. I worry that the phrase “reasonably relies” will have to be defined by case law. Therefore, there is a hurdle that grandparents have to first meet before they can say, “I will be the one that goes and helps the child. I am a person who that child reasonably relies upon for care in an emergency situation”. If the Government want grandparents to be supported and enabled to take emergency leave to provide that support for families, I struggle to see why one does not simply deal with it straightaway by a simple, modest little provision that would remove any ambiguity on that point.
The issue of statutory leave for kinship carers is not going to go away. So many people feel so strongly about it, and I am sure we will come back to it. I beg leave to withdraw my amendment.
Lord Knight of Weymouth
“Parental bereavement leave
In the Employment Rights Act 1996, after section 57A there is inserted—“57AA Parental bereavement leave
(1) The Secretary of State must make regulations entitling an employee who satisfies specified conditions—
(a) as to duration of employment, and(b) as to relationship with a child,to be absent from work on leave under this section in consequence of the death of a child.(2) Regulations under subsection (1) shall secure that, where an employee has a right to leave under this section, he or she is entitled to a leave period of at least 2 weeks.
(3) Regulations under subsection (1) shall secure that an employee who exercises his or her right under subsection (1)—
(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he or she had not been absent,(b) is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and(c) is entitled to return from leave to a job of a prescribed kind.(4) In subsection (3)(a) “terms and conditions of employment” includes—
(a) matters connected with an employee’s employment whether or not they arise under his or her contract of employment; and(b) terms and conditions about remuneration.””
Lord Knight of Weymouth (Lab)
My Lords, Amendment 267D, which would add a new clause after Clause 97, is about parental bereavement leave. The amendment seeks to give the Secretary of State a power to make regulations entitling an employee to be absent from work on leave as a consequence of the death of their child.
It may come as a surprise to many that there is no statutory entitlement to such bereavement leave, but that is the reality. The other elements of the proposed new clause are there for your Lordships to read. The current legal position, for those who do not know it, is that at present parents may be entitled to time off for dependants—there is a legal right to unpaid leave to cope with family emergencies, to which some reference has been made. There is no upper limit to the amount of time specified. It should be “reasonable” and should be only the amount that is sufficient to deal with the situation. The government guidance says:
“There is no set amount of time allowed to deal with an unexpected event involving a dependant—it will vary depending on what the event is … In most cases, one or two days should be sufficient to deal with the problem”.
Clearly the bereavement of a child is a problem that would need more than one or two days. Everyone’s grief is different, so quantifying this is slightly challenging, but I contend that we need to give everyone some certainty that they are entitled to a minimum amount of leave on a paid basis. In my mind, that is two weeks, which I will talk about in a moment.
Having said all that, I also want to pay tribute to Lucy Herd, who I first met two and a half years ago when recording an edition of “The Politics Show” in the BBC’s Southampton studio—occasionally, appearing on these shows does some good. Lucy, who I talked about in my contribution at Second Reading, suffered the loss of her child, Jack, in an accident in the garden. He drowned in their garden pond. Her husband, who at the time was in Australia, was given the opportunity to fly back. Obviously it takes a while to fly from Australia to Cumbria, but he was not able to stay around for very long because his employer needed him back at work within a week. As a result of that experience, Lucy started campaigning, supported by the Lullaby Trust, Bliss, Cruse, Child Bereavement UK, the Childhood Bereavement Network and others. She has discovered that hers is not an isolated example of people suffering from unsympathetic employers. I think the vast majority of employers are reasonable, but clearly there are examples where some are not. I am grateful to the Minister for meeting Lucy last month to discuss this, and to my noble friend Lord Stevenson for accompanying her. Unfortunately, because of my caring responsibilities—I listened to the debate on the previous amendment with care—I was not able to attend.
Recently, in the course of her campaign, Lucy put up a petition on the Change.org site. I looked through the comments that people are allowed to leave as they sign these petitions. There are many moving comments, two of which really stood out as examples that demonstrate that this is not an isolated case. The first was from Karen from Birmingham, who said:
“I got only 6 days compassionate leave when my 6 year old daughter died. A day for every year she lived. Disgusting! And that was the ‘caring’ NHS!”.
The NHS was her employer. Also from Birmingham was Ian, who said:
“I lost my daughter Megan on the 13th September 2010. She had a brain tumour. The work (the Queen Elizabeth Hospital Birmingham) gave me 6 days companionate leave which was good I thought then told me to go off sick until my grieving eased. When I returned 4 weeks later I was called to a meeting with my manager and the personnel department and given a written notice for being off after my daughter’s death”.
That is how in some cases the NHS might treat people who are suffering in this circumstance.
I contend that this is not an isolated case. I was pleased today, following Prime Minister’s Questions in the other place, to hear that this was raised by Tom Harris MP, who asked the Prime Minister whether or not he would commit to amending the Employment Rights Act 1996 to at last give British parents the legal right, and the time, to grieve. I was pleased at the Prime Minister’s response:
“The hon. Gentleman raises an important issue, and I am happy to look at that, having suffered that experience myself. As a Member of Parliament, it is possible to take a little bit of time to stand back and come to terms with what has happened, because colleagues and the people who help us are ready to step in and do what they can. He has raised an important point; let me look at it and get back to him”.
So the Prime Minister gives us some encouragement. As I understand it, he took two weeks’ bereavement leave. In informal conversations, the CBI, which does not have a formal policy on this, has suggested that two weeks’ paid leave might be reasonable.
Bliss, the charity that campaigns,
“for babies born too soon, too small, too sick”,
as its strapline says, has also been in touch and is strongly supportive of this amendment. Many people think that for children who are stillborn, who die in a cot death or who die early on in their lives, maternity leave can be used, so that this is not such an issue. Bliss has said to me that there are emotional reasons why parents might feel more comfortable taking bereavement leave rather than maternity or paternity leave, because it is a focused recognition of their loss. Removed from the emotional associations of parental leave without a child, they can feel more able to take the leave that they need. Ensuring that they are entitled to bereavement leave would also help them, when dealing with employers and other outside agencies, to be clear about their situation and ensure that they get the appropriate support. Although Bliss has sent me some bad examples, it has also sent me some very good examples of how employers can work sympathetically with people who have been through this extraordinary trauma.
Baroness Brinton
My Lords, it cannot be right that it is a complete lottery for a grieving parent, probably in deep shock, in being entirely reliant on the good will of their employer. I shall give a slightly different example from the one given just now by the noble Lord, Lord Knight, and focus on an extended illness of a child. Jane, a junior manager whom I know, had a three year-old with leukaemia. The charity she worked for believed itself to be a caring and reasonable organisation, but the head of the charity objected to allowing further compassionate leave as the child was dying or when the child died, nor did they want to give leave to prepare for the funeral. They said that the parent should take unpaid leave, having used up her annual leave to be with her child in hospital earlier in the year.
It took a little while for this charity to be persuaded that this was not the appropriate course and, some years on, as a result of the organisation changing its view, the junior manager, Jane, is still there. She found support from friends and colleagues absolutely vital, both in the time immediately after the bereavement and later when she returned to work. What the family really needed after the death was time—time to prepare for the funeral, time to help other children in the family to understand and time to prepare for a return to an ordinary working life after such an extraordinary event.
I think, despite the story, that this manager was lucky. At the very least we need guidelines for employers, but I have sympathy with the amendment of the noble Lord, Lord Knight. As he has outlined, the costs are not too great either. Fortunately, losing a child is rare, so neither employers nor the Exchequer need worry that this will be a great cost. Also, as important as the humanitarian and caring approach is, parental bereavement leave is likely to help parents settle back into work, which in the long run will help both their employer and the state.
Lord Stevenson of Balmacara
My Lords, it is very difficult to follow the well presented case that has been made for action in this area, but I want to spend two seconds paying tribute to Lucy Herd, who is in the audience today. I was privileged to accompany her when she came to see the Minister and the Bill team and very bravely went through some of the things that had happened to her in her life and how she had coped with them. One wonders whether people really can dig so deep, and yet that is what she did; she turned the tragedy of the death of her deeply loved son, Jack, into a campaign that she is still waging and which we have heard about from my noble friend Lord Knight.
This situation cannot be right. We need to do better than we currently do as a society that says it cares about these sorts of issues. There is clearly a cost, but there are also other things that could be done at least to open the situation for discussion. If this happens to you or to your nearest and dearest, you should not then find during the trauma of what is happening that the rules are so adverse and difficult that you do not know where you stand in terms of your relationship to your employer or to anyone else or their agencies. Given the complications of what would happen and the timescales involved—because if there are inquests and other things they will span over a long period—this situation is clearly unstable and has to be resolved. I hope that the Minister will be able to help us
Baroness Howarth of Breckland
My Lords, I shall be very brief because I know that the noble Lord, Lord Knight, should be speaking elsewhere at this minute, I believe.
Baroness Howarth of Breckland
I support the amendment. I work with an organisation for children who are born with half a heart. Some of them therefore die but, luckily, more live now than did in the past. The variety of responses from employers to those bereaved families is extraordinary; I shall not go into examples because of the timeframe. The Minister might well say that we need a change in culture, as indeed we do, but one way of achieving that is by having something like this on the statute book. I therefore support the noble Lord.
Viscount Younger of Leckie
My Lords, this has been an important debate on a difficult and moving issue. I am pleased that the issue was raised at Prime Minister’s Questions by Tom Harris MP, as the noble Lord, Lord Knight, mentioned.
The death of a child is an event that no parent should have to experience and it is distressing to hear that some people are not given the time off work that they need. I was privileged recently to meet Lucy Herd, whose experience following the death of her son, Jack, was outlined so eloquently by the noble Lord, Lord Knight of Weymouth, at Second Reading and today. I found her story extremely moving and was greatly saddened to hear that her partner had not been able to take the time off that he needed to be at home with his family after his son had passed away.
The majority of employers respond to such an event with compassion and understanding, offering their employees the support that they need to take time off and to begin to deal with the consequences of the tragic event. I am pleased that the noble Lord, Lord Knight, recognises this. However, I accept that this is not the case for all parents. Even if such refusals of time off are very rare, they are naturally extremely upsetting for the individuals involved. I emphasise that an employer who does not enable a parent to take time off in order to take action that is necessary in consequence of the death of a child is acting unlawfully. The law is clear that the entitlement to emergency time off for dependants enables parents to take time off to take necessary action following the death of a child. The noble Lord, Lord Knight, raised the issue of the guidance on time off for dependants, which states that one or two days is sufficient. I reassure him that, as I mentioned in my response to the previous debate, we have recently amended the guidance to make it clear that the entitlement is to a reasonable amount of time off.
When a child dies, many processes need to be completed. These would be complicated and distressing at the best of times. I am sure that when a parent is trying to deal with shock and grief following the death of their child, this can be extremely challenging. It is right that parents are able to take time off to deal with these arrangements, and the law clearly provides for that. There is, however, no legal entitlement to statutory time off to grieve. Grief is an extremely personal issue and affects people in very different ways and at different times. For some people, returning to work immediately after a death is a distraction from difficulties at home. Others may need time off at a later date. Parents are best placed to understand their individual needs, and good employers will respond to requests made by their employees in the most appropriate and sensitive way. It would not be possible to legislate to accommodate the varied needs of individuals.
Research conducted by the Chartered Institute of Personnel and Development demonstrates that many companies have a policy in place for enabling employees to take time off for special and compassionate leave. In addition to leave available as a matter of policy, further time off may often be taken at the discretion of the line manager. Organisations that do not have a policy in place may find it challenging to meet the needs of bereaved employees at what we can all agree is a particularly difficult time. This may be compounded by a lack of understanding about the different religious beliefs and practices of their employees, which often influence grieving and funeral arrangements.
The Government are committed to giving employers the tools and support that they need in all aspects of their relationships with their employees. There is a clear need for guidance to support employers to develop company policies or approaches for time off for bereaved employees. The Government are currently exploring the best way to do this and will bring forward a concrete proposal shortly. I am pleased to announce that the timetable will be available on Report and we can share our approach with the House then.
I am grateful to the noble Lord, Lord Knight of Weymouth, for bringing this important matter to the attention of the Committee. I hope that he and indeed Lucy Herd are reassured by the commitment to bring forward guidance. In the mean time, I ask him to withdraw his amendment.
Lord Knight of Weymouth
My Lords, I am grateful to everyone who has spoken in this brief debate, and to the Minister for the sensitive way in which he has responded. We can all agree on what we think employers should do. We can agree that employers should have a policy so that, if these tragic things were to happen to a member of staff, they would have tried to anticipate how best to deal with it. We can agree that parents are best placed to make some of those judgments for themselves. However, “reasonable” has a very wide interpretation. We should use this opportunity to narrow that interpretation. I am therefore grateful to the Minister for announcing that he will bring forward concrete proposals about a timetable on Report. We shall certainly return to this issue then, in part to allow him to do so. In the mean time, if he wants to work with me on his own amendment then I would certainly wish to do that.
I remind him that this amendment seeks to give him powers. He could then use his mechanism of a concrete proposal and a timetable to work out how he should consult best to use those powers. Between now and Report, working with my friend Tom Harris in the other place, we shall liaise with the Prime Minister’s office to see how he reflects on this issue. I hope that we can come away with as happy a result out of these sorts of tragic circumstances as possible. I beg leave to withdraw the amendment.
“Review of the provisions of this Part
(1) The Secretary of State must from time to time—
(a) carry out a review of the provisions under this Part;(b) set out the conclusions of the review in a report; and(c) publish and lay a copy of the report before both Houses of Parliament. (2) The report must in particular—
(a) set out the objectives intended to be achieved by this Part including, the objective of encouraging fathers to share in caring for their children;(b) assess the extent to which these objectives are achieved for all families including those with premature or multiple births; and(c) assess, having regard to the objectives set out in paragraph (a)—(i) the number of families having access to the provisions under this Part and whether this could be increased;(ii) whether the amount of paid leave available to fathers independently of any shared parental leave arrangements is suitable;(iii) whether and how shared parental leave could be taken on a part time basis.(3) The first report under subsection (1) must be published before the end of three years beginning with the day on which this Part comes into force.”
Lord Stevenson of Balmacara
My Lords, in speaking to Amendment 267E and also Amendment 268A, I can be brief because the ground we have covered today has been leading up to a number of the points that I would have made if I had had more time and needed to break new ground. The essence of much of what we have heard from the Minister is that the spirit is willing but the flesh is weak. Often, as I anticipated in my opening remarks, he accepts the arguments for the direction in which we want to travel but he does not feel that the economic circumstances or alternatively the particularities of the individual point are absolutely in tune with the willingness of the Government to move on the point. I am not sure that metaphor will read well in Hansard but you will understand where I am trying to get to. This amendment therefore provides an opportunity for the Government to sign on to what we hope would be a narrowly focused and specific review, not general but tied to the various pinch points that we have encountered in our journey through these amendments today.
For example on the question of paternity pay, could we have a review that picked up the particularity of the point that was made in another place? The Minister’s counterpart in the other place said that the although the powers to allow the extension to paid paternity leave would be in the Bill, there would be a delay in making the extension until flexible parental leave had been fully embedded and we could assess the impact on shared parenting. Okay, let the review assess both whether parental leave has been fully embedded and the impact on shared parenting, tying it in to that arrangement. The question would follow naturally for the review as to whether the objective of encouraging more fathers to take leave had worked, and whether the amount of paid leave available to fathers in their own right was suitable in the light of the objective.
The Government have also said that they will consider making arrangements for working parents who do not meet the qualifying criteria to receive statutory payments, but this provision could not be introduced before 2018 to allow time for development and—a very important point—to ensure that it interacts appropriately with the new universal credit system. As we all know, the new universal credit system is not moving along at quite the pace that its originators would perhaps wish, so that may impact on the timing of the review, but I hope that it will not. Again, it would be appropriate to tie this review in to those things.
There are a number of particularities within the debate that we have had today which I offer to the Minister as being exemplars of the reasons to do a targeted review so that we can continue the sort of debates that we have been having here. We have a joint purpose of trying to make this legislation better, and it would be greatly informed if we could agree on the format of a review that would answer the questions that we should like answered.
Amendment 268A is slightly different. It is to try to inculcate a change in culture—we have talked about culture a lot in today’s discussions. This is about the move from a labour market scene that is largely dominated by fixed hours and fixed-time contracts to one that would be based on the starting assumption that all employment contracts, in time, could be flexible. If that were to be the case, we would have a situation where a number of the issues that we have raised again in discussing today’s amendments would fall away because the flexibility that would be innate in any job would allow for care concerns, problems around bereavement, issues around changes such as the onset of disability, or the tragedies that happen in families. All those things would be easier to deal with if the basic paradigm for employment were flexibility.
In the sense that this is something where we have a shared purpose that this would be a good thing—indeed, there are many examples I could give of employers that have set out to say that they are filling all future posts on a flexible basis—we would like to see flexible working become the norm, which would allow a number of good things to flow from that. The question is: how would we do that? Could we have a campaign? Could the Government put all posts within government services on a flexible basis? Could they set themselves as a standard bearer for this new approach? The amendment seeks to probe whether there is willingness within the operations of government, and more broadly within the workplace, to get on this bandwagon of moving towards flexible working, which seems to carry with it the seeds of much of what we have discussed today, which we would all find desirable. I beg to move.
Viscount Younger of Leckie
My Lords, the introduction of shared parental leave and the extension of the right to request flexible working are significant steps forward in creating the right environment for modern workplaces. This Government have committed to a policy of regular review of legislation to ensure that laws operate in the way in which they were intended and that they are still relevant. Shared parental leave will be no exception. This review will take place at the earliest opportunity when appropriate data are available. The Government will have to look at the take-up of the policy and the impact it has had on achieving one of the key policy aims of enabling shared parenting in the UK.
I make the commitment in this Committee that the Government will review shared parental leave as soon as appropriate data become available. The review will consider whether shared parental leave has gone far enough to encourage fathers to take a more active role in the care of their children in the early months following birth. As I mentioned earlier, the Government are taking powers in this Bill to allow for the extension of paternity pay, which would enable the Government to extend paternity leave and pay at a later date through secondary legislation.
Alongside reviewing the take-up of shared parental leave by fathers, the review will also look at whether the shared parental leave provisions are supporting all families in the most effective way. This may include parents of multiple births, provisions for self-employed parents and whether shared parental leave and pay can be made to work on a part-time basis.
Amendment 268A would require an annual review of the promotion of flexible working to employers and employees. The right to request flexible working was first introduced in 2003. That right has been very effective in encouraging employers to adopt flexible working practices within their businesses. It also reassures employees that their request for flexible working will be taken seriously.
The Government believe that flexible working should no longer be seen as a concession to families and those with caring responsibility. The benefits of flexible working are experienced by businesses, regardless of why an employee wishes to work flexibly, and I applaud the work that the previous Government did in promoting flexible working. Survey data show that, thanks to the existing right to request flexible working, 90% of employees have access to at least one flexible working arrangement. I hope that this will prompt a certain glow on the face of the noble Lord, Lord Stevenson, opposite.
Many businesses across a variety of sectors recognise the benefits that flexible working can bring. The Government have been working with a number of organisations to promote the benefits of flexible working, and will continue working with businesses to increase the awareness of flexible working arrangements.
Clause 106 requires the Secretary of State to review the effectiveness of changes to flexible working legislation made in the Bill and the extent to which the changes achieve the objectives of the policy. The Government will conduct this review within seven years of the implementation of the flexible working provisions of the Bill. The review will include reviewing the effectiveness of communicating with employers on the benefits of flexible working and make recommendations on whether additional communication of the right is needed.
I recognise that seven years is a longer period than the amendment would require. The legislation on flexible working aims to encourage a cultural change in the way that employers and employees work together. Much reference has been made to the question of culture this afternoon. Experience tells us that cultural change does not happen overnight and certainly not within one year. Culture change is best measured through survey data on how employee behaviour and attitudes are changing. For this reason it is right that any review of flexible working promotion gives the legislation the opportunity to change cultural behaviours before it is reviewed.
Nevertheless, I am grateful to the noble Lord, Lord Stevenson, and the noble Baroness, Lady Lister of Burtersett, for the opportunity to discuss this in Committee. I hope that the commitment for review I have made today will reassure them, and I ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
I thank the Minister for his comments. The timescale seems incredibly long—seven years is too long—but I will read Hansard carefully and reflect on what he has said, and we will consider our position. In the mean time, I beg leave to withdraw the amendment.
Baroness Pitkeathley
“Welfare of disabled children
(1) The Children Act 1989 is amended as follows.
(2) After section 23A insert—
“23AA Welfare of disabled children
Regulations, subject to approval by resolution of both Houses of Parliament, shall provide for those who care for disabled children to have the same entitlement to a carer’s assessment as young carers and adults caring for adults.””
Baroness Pitkeathley (Lab)
My Lords, I begin by apologising for being such a latecomer to this Bill, over which so many of your Lordships have laboured long and hard. The reason is simply the clash of commitments that we so often have to contend with in your Lordships’ House: I was very involved with the Care Bill, and it is on the subject of the Care Bill that I now rise to speak.
Your Lordships will know that the Care Bill enshrines in legislation many more rights for carers than hitherto. Adult carers featured strongly in the Care Bill and thanks to the Government being willing to listen and amend the Bill—and to what we might call a pincer movement between the Care Bill and the Children and Families Bill—young carers have similarly been well recognised. However, in spite of much effort—much of it focused in this Bill by many noble Lords and noble Baronesses present today—the rights of parent carers remain weaker than those of other carers.
When I moved a similar amendment to the Care Bill, the Minister was kind enough to say that he recognised my concerns and would consider them. The outcome of those considerations was that the proposal would sit better in this Bill and it is for that reason I am moving it today. Briefly, as I know that many noble Lords are familiar with the issues, the purpose is to strengthen the rights of those who care for a disabled child to receive an assessment of their need for support in line with the assessment rights of adults caring for adults and of young carers.
It is vital that the rights of parent carers to assessment and support are not lost in the current legislative reform of carers’ rights and that their rights are enhanced along with those of other carers.
Like other carers, parents of disabled children already have an existing right to request a separate assessment of their own needs, which is in addition to having their needs assessed as part of their child’s assessment under the Children Act 1989. The existing rights for parents to have their needs assessed separately were introduced in three Private Members’ Bills, with which I was involved and which will be familiar to many of your Lordships. The three Acts were taken through Parliament with cross-party support, in recognition of the huge contribution that carers make and of the need to set out clearly in law their rights to receive support for their care and their right to a life outside caring.
Baroness Lister of Burtersett
My Lords, I am pleased to have been able to add my name to the amendment moved by my noble friend and apologise for having jumped the gun on this issue on our 10th day in Committee. The Minister, in replying, said then:
“There is a strong framework of support already in place to support parent carers under the Children Act 1989 and in new provisions in Part 3 of the Bill”.—[Official Report, 11/11/13; col. GC 196.]
However, this is not how carers’ organisations see it. They are arguing for a stronger and more coherent right to an assessment on behalf of parent carers. My noble friend has made the case very well and I will not add much to that, but it is important that we take this opportunity to consolidate and clarify the law for parent carers alongside that of adult carers and young carers.
I find it strange that Mr Timpson in the Commons argued in a Written Answer to Paul Burstow:
“Amending the Children Act 1989 to assess the needs of parent-carers separately from children would risk the needs of the children becoming second to those of their parent”.—[Official Report, Commons, 11/11/13; col. 506W.]
I cannot see the logic of this argument, given the whole-family approach that the Government are quite rightly espousing—and my noble friend has disputed the argument. Could the Minister clarify why the Government believe that this would be the case? Why does it undermine the rights of the children to have a clearer right for their parents when the family is living as a family?
It is important to make sure that parent carers’ entitlement to assessment and support is better understood as well as strengthened. There seems to be confusion over this. Both the Minister’s response when we last discussed this briefly and the Government’s response to the Joint Committee on Human Rights referred only to the Children Act and not to the rights that exist in the carers legislation. The point has been made that we run the risk of burying this important entitlement under layers of law and a confusing web of guidance. It almost seems as if it is so deeply buried that the Government themselves are not totally aware of the nature of all these rights. This is an opportunity to clarify and to bring it into the new legislation so that it is not left behind in what my noble friend has called “rump legislation”. This is a vital opportunity that we really must not lose. I am glad that there is going to be a meeting and I hope that the Minister can clarify why there is this belief that the needs of children are being pitted against those of their parents. I hope that we can resolve this because it is not, in a sense, producing something completely new.
Baroness Tyler of Enfield
My Lords, I rise briefly to lend my support to this amendment. The hour is late and I will be brief. I am one of that band of noble Lords who were involved at all stages of the Care Bill and I think we have made great strides in joining up the Care Bill and the Children and Families Bill. I salute Ministers for having done that. I particularly pay tribute to Ministers for what they have done on young carers. We now have a set of rights for young carers which is so much stronger than before and that is a real landmark. Through the Care Bill, we have got improved rights for adult carers to assessment and support, and I applaud the Government for doing that. We have got much improved rights for young carers through the Children and Families Bill, linking in nicely with the Care Bill, and again I applaud the Government for doing that. We just have this one group left: the parent carers, who generally care for disabled children. If we could just get that missing bit of the jigsaw all sorted out so that all carers had the same set of rights to assessment and support, I think that it would be a tremendous step forward for carers in this country. I am encouraged to hear that meetings are still taking place and I hope that the Minister may have some encouraging news for us that the missing bit of the jigsaw is going to be put into place. We can all then be absolutely proud of what these two Bills together have done for carers.
Baroness Howe of Idlicote
My Lords, very briefly, it was only about an hour ago that we had exactly the same situation having to be sorted out for kinship carers. For goodness’ sake, parent carers are about as kinship as you can get, and if they cannot be rolled into the same set up of proper analysis and proper attention to their needs, then what can happen? I hope the Minister is going to move this thing on as quickly as possible.
Baroness Hollins (CB)
My Lords, parents of disabled children often do not see themselves as carers, but they are. Their need for support has been argued and won over the past 20 years. They really are different from other parents. Their right to be able to have a life alongside caring for their disabled child has been fought for very successfully. Parent carers are often so focused on the needs of their child that they forget about their own health and well-being. It could be argued that failing to recognise the needs of the parent carer is against their right to a family life under the Human Rights Act. I was involved with a WHO/Europe declaration, Better Health, Better Lives, which was about the health and well-being of children and young people with intellectual disabilities across Europe and their families. It was signed by all the Health Ministers, including our own, in 2012. One of the 10 recommendations was about identifying the needs for support of parent carers. I join my voice to that of the noble Baroness in this amendment. What is the Government’s rationale for allowing that the carers of a disabled 13 year-old would effectively have rights inferior to those of the carers of an 18 year-old? I hope that the Minister will be able to respond.
Baroness Howarth of Breckland
My Lords, I wish to support the noble Baroness, Lady Pitkeathley, in this amendment. The Minister is right in saying that the framework is there in the present legislation or, at least, it should be there. The difficulty is that, because the focus among those who make assessments is split between adults and children and we do not have holistic family assessments, often the parents are lost. A family whom I met recently had just, after many years, been given a period of respite care, but the parent carers had not realised that that would make the difference in their being able to continue to care for their son, an extremely difficult young man. A series of workers had never suggested to them that their needs might be met in order to meet the needs of their child. That is the important message that front-line workers need to understand. This amendment would help them to understand that, unless you meet the needs of parents, you do not meet the needs of children.
I, too, had this query when I heard that it had been commented that to assess parents would undermine the rights of children. Assessing parents enhances the rights of children. Many of us who have worked in this field and continue to work with and meet families see it regularly. We also see when people fail to notice that parent carers are beginning to fail, simply because of their exhaustion and the fact that they have had no relief and no assessment for any kind of services, sometimes quite small ones that would make all the difference to their being able to continue.
I support this because we should have a family approach whereby children with disabilities will be maintained in their own homes rather than having to go into caring facilities because their parents are unable to look after them. I am losing my power of speech, like most of us at this time of night, so I leave it there. My only other point is that the noble Baroness, Lady Tyler, made a passionate speech about integration, which I think we all feel should happen.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I welcome the opportunity to debate the important issue raised by the noble Baroness, Lady Pitkeathley. I recognise the tremendous job that parent carers of disabled children do and the challenges that it can bring. It is right that children’s legislation is the place to address this. I am pleased that the Minister for Children and Families will be meeting Paul Burstow to discuss this further.
We are confident that there is a strong framework of support in place to support parent carers of disabled children. Parent carers’ needs can be assessed as part of assessing the needs of children in need under the Children Act 1989. Local authorities can provide services to the family members of a child in need with a view to safeguarding or promoting the child’s welfare.
As parents, and as adults caring for children, parent carers are in a very different position from adults caring for adults or young carers. We should be wary of simply replicating arrangements that are in place for those other carers without understanding the interrelationship with other legislation and the potential for unintended consequences. Unlike for young carers, where we have responded to specific concerns and substantial evidence, there is a lack of evidence for the need to change the type of support or the way in which it is provided for parent carers of disabled children. That is not to say that everything is perfect, nor to underplay the challenges that parents of disabled children face, nor to claim that all parent carers receive the support that they need. However, it is not clear that specific changes to legislation are the answer.
Baroness Pitkeathley
My Lords, I had hoped that we were making a bit of progress, but I am having a kind of throwback moment. When many of us first started getting the issue of carers on to the social policy agenda—many noble Lords here will remember that—I used to be told, “Oh, you can’t think of the needs of carers. The needs of the disabled person or the older person have to be paramount and you’ve got to think of those first. If you look at the rights of carers, you’re going to undermine those roots”. I am hearing the same argument tonight and I find it extremely disappointing. However, we made progress on the other matter: everybody now understands that you can look at the rights of the disabled or older person and the rights of carers and not undermine either of them—the two are inextricably entwined. Therefore, I continue to hope that we will still be able to make progress. We have fundamentally failed to get Ministers and their officials to understand that there is a difference between being the parent of a disabled child and being a parent. There is a fundamental difference and it needs to be looked at. Having had the support of so many of my noble colleagues tonight, I feel that I have a window to come back to this on Report. However, in the mean time, I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, we had been led to believe that this session would finish at 8.15 pm but I have not been briefed about what will happen, so I am in something of a quandary. I wonder if the noble Lord would explain what the position is so that we can understand better what our responsibilities would be to the Bill, before I speak.
Lord Popat (Con)
My Lords, I have spoken to the Chief Whip, and we need to complete the Bill today.
Lord Stevenson of Balmacara
I am glad to hear it, but what has that got to do with me?
Lord Stevenson of Balmacara
I find this very unsatisfactory. As the noble Baroness said, we are all losing our marbles, if not our words. Trying to get through the Bill at this late hour when there are still two very substantial amendments to go is not what was agreed through the usual channels and certainly was not the basis on which we came into this discussion. I continue, but I do so with the feeling that this is not in the spirit of the best use of our time, and your Lordships’ House will be the worse for having to debate late into the night issues that should have seen the fresh light of day—perhaps next Monday, when of course there will be time.
Clause 104 was in my mind when I started the debate earlier—it seems a long time ago now but was in fact earlier this afternoon—by saying that while the Opposition were broadly happy with the measures contained in Parts 6, 7 and 8 of the Bill, there were one or two bits of grit, and this is one of them. Amendments 267L and 267M and the clause stand part Motion are grouped together in one place so that we can have a debate about them. While they all bear on the same area, they obviously have different impacts. My preference would be for the clause to stand part because I believe that what the Government are trying to do here is antipathetic to the very spirit of British law, which has always recognised the need for a person with a legal case to have the chance to make that case in a court of first instance but, where there have been problems or difficulties with that, the person would then have the right of appeal against decisions taken in the first instance. However, the Bill as it is drafted removes the process by which an employer must respond to an employee’s flexible working request and replaces it with a requirement to respond in a reasonable manner and within a timeframe of three months. We had a debate earlier about the word “reasonable”, and on that occasion the Minister felt unable to accept that word because he felt it was not appropriate for the context in which we were discussing it, although it has come back several times since and he has been quite happy with it. We have a situation here where reasonableness, which in the earlier amendments was a burden on employers, is now okay for employers to use.
The current processes include the provision for an appeal by an employee, and this obviously provides a useful opportunity to discuss why things have not worked out in terms of the process, but the Bill removes that. The history to this is interesting. ACAS consulted on a draft code of practice for the extended right to request flexible working, and employer bodies such as the CBI, the FSB, recruiters, the TUC, EHRC, Opportunity Now and Working Families acted as advisers on the draft code. The group agreed, and the draft code recognised, that an appeal is important. The draft code said:
“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application”.
Anybody reading that would recognise its antecedents in criminal law and civil law where clearly those who have cases—as I have said—can make them in the first instance and then, if there are difficulties, can appeal against some of the decisions in order that they can be better refined and reconsidered. We believe it is important that the Bill and the code are consistent to provide clarity to employers and certainty to employees that appeals are to be allowed. The amendment would make it clear on the face of the Bill that appeals remain an important part of the process of considering flexible working requests.
In Committee in the Commons, the Government argued that the amendment would mean that an employee always had a right of appeal, and that this would be burdensome and bureaucratic in a very small organisation. If it was an absolute right of appeal, that might be the case, but appeals are usually constrained by matters of fact or law and one would expect that normal processes would be applied. We argue that a very small organisation would be able to deal swiftly with an appeal, but allowing an appeal is important for procedural fairness and may reduce the use of grievance procedures instead. Sometimes employers do not give a statutory business reason for refusing a request, and that could give rise to an appeal. In addition, once the employee understands the employer’s business reasons for refusing a request to work flexibly, they may be more able to negotiate a solution, so it is a win-win all round.
I would ask the Minister to think again about this issue. It is important to retain what we normally expect as the right approach towards consideration of these quasi disciplinary matters. I beg to move.
Viscount Younger of Leckie
My Lords, I welcome the debate on the new arrangements for considering a statutory request for flexible working. Even at this late hour, I recognise the importance that the noble Lord, Lord Stevenson, attaches to this amendment and I hope that my reply attaches the same degree of importance to it.
The current right to request flexible working has been a success, with 80% to 90% of requests being accepted. However, that does not mean that the right cannot be improved. Clause 104 will remove the statutory procedure for dealing with applications for flexible working and replace it with a duty on employers to consider applications in a reasonable manner. Many employers like the structure and confidence that the current procedure gives them when considering applications. Those employers will be able to continue to use this procedure even when it is not compulsory and can be confident that in doing so they will be likely to be acting in a reasonable manner. Many other employers, however, would like to consider applications in innovative and effective ways which are currently not allowed by the statutory procedure.
The Government have asked ACAS to develop a statutory code of practice to explain to employers what will be considered to be reasonable when considering a flexible working application. ACAS consulted in February this year on the contents of the statutory code of practice. The consultation version of the code of practice states:
“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application”.
The Government want to encourage employers to allow their employees to appeal a decision where it is appropriate. However, it may not always be appropriate. This extension to the right to request flexible working aims to encourage more employers to consider how flexible working could work within their business. It is not about creating or maintaining a process and procedure for employers to follow. I would like to reassure the noble Lord, Lord Stevenson, that while the Government do not believe that offering an appeal will be appropriate in all circumstances, we anticipate that the statutory code of practice and the supporting guidance issued by ACAS will encourage employers to offer their employee an appeal and to explain the benefits that offering an appeal can bring. Accordingly, I ask him to withdraw his amendment.
Lord Stevenson of Balmacara
Perhaps the noble Viscount could run through that last bit again. I am sorry, it is late and I am not working quite to my maximum efficiency. One of the points I made in my speech was the discontinuity between the code and what is being said in the legislation. If the code is going to say that the reasonable expectation is that employers shall provide an appeal, why is it not also appropriate to ensure that the statute says the same thing?
Viscount Younger of Leckie
We believe that the supporting guidance issued by ACAS will be enough to act as a nudge factor to encourage employers to offer an appeal. Together with the guidance that we will be providing, we believe that this will explain the benefits that offering an appeal can bring. I hope that this provides reassurance, short of bringing in legislation. The code is statutory, so it should be read alongside the legislation.
Lord Stevenson of Balmacara
All right, I think I am getting there. There will be a code which will have statutory backing. The code will make it very clear that an employee making such a request which has been turned down, perhaps for no sufficient reason, will have a statutorily underpinned right to appeal that because that is what the code, which is expected to be applied by employers, will say. The noble Viscount does not need to come back on that but perhaps he can write to me on the point.
I am missing my letters—I have not had a letter from the noble Viscount for at least a week. For those of your Lordships who may think that this is a rather recherché, arch exchange across the Committee Room, we have a running joke between us because of the number of times we have to appear opposite each other. The noble Viscount has gained an enviable reputation for being a prolific letter writer. Whenever there is a doubt, we get a letter, so on this occasion, may I have my letter and I will consider it? The noble Viscount is going to speak again, so I cannot.
Viscount Younger of Leckie
I can reassure the noble Lord that I would be delighted to furnish him with yet another letter and I will make sure that the reference is clearly written on it. The noble Lord mentioned the word “grit” earlier this afternoon and I hope that I can reassure him that the grit in the code is the statutory backing, and that the code is to be read alongside the legislation.
Lord Stevenson of Balmacara
Not all grit is bad grit. An oyster produces pearls. Perhaps on this occasion the pearl has been provided. On that basis, I am happy to withdraw the amendment.
Grand Committee
Children and Families Bill
(11 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Benjamin
“Part 8AChildren participation in performancesChildren participation in performances
(1) Section 25 of the Children and Young Persons Act 1933 (restrictions on persons under eighteen going abroad for the purpose of performing for profit) is amended as follows.
(2) For subsection (1)(a) substitute—
“(a) for the purposes of taking part in a performance to which section 37(2) of the Children and Young Persons Act 1963 applies,”.(3) In subsection (1)—
(a) for “this section” substitute “section 37 of the Children and Young Persons Act 1963”,(b) omit paragraph (a) and after “granted in respect of him under” omit “this” and after “section” insert “37 of the Children and Young Persons Act 1963”.(4) Subsections (2) to (11) of the Children and Young Persons Act 1933 are omitted.
(5) Section 37 of the Children and Young Persons Act 1963 (restrictions on persons under 16 taking part in public performances, etc.) is amended as follows.
(6) After subsection (2) insert—
“(2A) For the purposes of subsection (2), a performance does not include participation in—
(a) filming by private individuals for uploading onto the internet for transmission (“user generated content”);(b) observational documentaries in which the child’s life and routine remains to a significant degree the same as it would have been had filming not been taking place;(c) unplanned and spontaneous filming where parental consent is subsequently obtained for the purposes of broadcasting;(d) filming in the context of news and current affairs journalism, or filming in the public interest in circumstances where it is not practicable to apply for a licence, without prejudice to the effect of sections 39 and 49; or(e) any further category as the Secretary of State may specify by way of regulations.”(7) After subsection (3) insert—
“(3A) Where subsection (2A)(b) to (e) applies such that no licence is required, the person responsible for filming the child shall carry out an assessment of risk prior to the filming taking place, save where it is not possible to do so, in which case such a risk assessment must be carried out as soon as possible after such filming takes place.”
(8) In subsection (4) after “will not suffer” insert “and in particular, that the child would not be subjected to any risk beyond that involved in the ordinary course of their life”.
(9) In subsection (5) after “imposed by the authority” insert “; such conditions shall however, seek to minimise any differences in conditions imposed in relation to different media and any such differences must be necessary and objectively justified for the purposes of protecting the child against a specified risk, and in particular, regulations shall not prohibit the recording or broadcast of live performances where the child’s participation in that live performance is permitted by the relevant licence”.
(10) After subsection (1)(b) insert—
“(c) go abroad for the purposes of a performance to which subsection 2 applies save that this subsection shall not apply in any case where it is proved that the child was only temporarily resident within the United Kingdom.”(11) Section 38 is repealed.
(12) Section 42 is repealed.”
Baroness Benjamin
My Lords, first, I declare an interest as an independent film and television producer, making predominately children’s programmes.
So far, we have had a great deal of rich debate on the Children and Families Bill—right to the very end. The majority of our debates have had the protection of children at their very heart. This is no less the case with this set of amendments on child performance—a subject very close to my heart.
For children, having the opportunity to participate on a film or television set, on stage or in a sporting event can be of huge benefit. It may be an exciting step in their performance career, give them an all-important confidence boost or simply be something that they remember for ever.
However, at the moment many children are prevented from taking part in performance due to antiquated and out-of-date legislation from the 1960s. That was a time when there were only three channels, and there were not the wide variety and diversity of opportunities for children that are available today. More importantly, the current legislation fails to provide strong safeguards and protection for children in today’s changing environment. The current legislation is simply not fit for purpose and desperately needs updating.
Under the current regime, seeking a performance licence can be difficult, time-consuming and unpredictable. Some local authorities simply act in such a way as to deny licences to children in their region as a matter of course. Others feel that they must apply the current legislation to the letter, and therefore they, too, deny children licences in their regions, while others try to help parents, children and the industry by pushing the confines of the legislation as far as they feel they can. With some local authorities licensing freely and others failing to do so, we have what can only be described as a postcode lottery in which there is no equality of opportunity for children. This is clearly not what we should be promoting in a progressive and diverse country such as the UK.
In 2010, Sarah Thane, who was a content and standards adviser at Ofcom, carried out a comprehensive review into all aspects of child performance regulations. The report concluded that the system of licensing child performance needed urgent and radical overhaul. In February this year, the Government published the results of a wide-ranging public consultation. While a range of views was given, there was broad consensus in many areas, including on the fact that legislative change was needed to improve the situation.
I am sure that noble Lords will have noticed that there is no current wording on child performance in the Children and Families Bill. However, I see the Bill as an ideal opportunity to deliver much-needed change and to provide a better legal framework that will both protect and safeguard children and young people and, more importantly, give them equal access to opportunities. The changes will give clearer guidance, transparency and consistency among local authorities when dealing with these matters.
At this stage of the Bill, I am not suggesting that we try to change the whole of the out-of-date 1960s Act. These focused and targeted amendments are addressing the major concerns that urgently need reform. So what do they seek to achieve? I will talk about three key areas of focus: first, improving equality of opportunity; secondly, improving safeguarding and risk assessment; and, thirdly, working with local authorities to achieve compliance.
On equality of opportunity, at the moment not all children or even types of participation and performance are treated equally. Currently, the narrow definition covers only acting, singing or dancing and does not include the wealth of opportunities available to children in the 21st century, such as observational documentaries, reality shows or educational programmes. Only recently, an important educational documentary, which was to be filmed at the British Museum, nearly did not get the go-ahead because of the failures of the current legislation. These amendments would do away with this restrictive definition and allow all children under 14 to participate in a range of performances.
At this point, I want to make it absolutely clear that the rules in the amendments would not cover circumstances where someone has filmed content and put it on the internet themselves—also known as user-generated content—or where the filming involves children in the ordinary course of a child’s life, in which case there is no impact on them. This would include documentaries, news and vox pops, where it is simply not feasible to seek a licence in advance.
However, even here the amendments would still require a risk assessment and duty of care for the child when the programme is broadcast. The amendments would also put an end to different mediums, such as television and theatre, being treated differently. This would end the bizarre situation—for example, as happens with the Royal Variety Performance—where children cannot perform after 7 pm purely because the live theatre show is also being broadcast on television. Had the cameras not been there, the children could have performed. This is becoming a recurring problem as many theatre performances involving children are now being recorded live to be shown in cinemas across the country to make art and culture more accessible. Noble Lords might have read recently about the talented choirboy who missed out on the experience of a lifetime of performing in the Royal Albert Hall at the Last Night of the Proms. Because the selected young soloist would have been singing after 7 pm, the organisers had to use an adult to sing instead. The young boy was denied a wonderful opportunity.
I now turn to improving safeguarding. These amendments have the safeguarding and protection of children at their very heart. Even though we are removing old and narrow definitions, this is absolutely not about deregulation. It is about better and more consistent regulation. The amendment would introduce a proper risk assessment for producers to complete which would be approved by local authorities. The risk assessment will cover all health and welfare issues and ensure that they are properly and professionally addressed. These changes will provide clarity and consistency. They will also make sure that any British child performing overseas has the same level of protection as a child performing in the UK. This does not happen at the moment.
Finally, on working with local authorities to achieve compliance, from my conversations with the Local Government Association, I have found that it is supportive and agrees that times have changed since the 1960s. It, too, feels that the legislation needs to be updated. I have met Councillor David Simmonds, the chair of the LGA children’s board. He expressed the LGA’s concern about the existing regulations and said how exposed and uncomfortable it feels with them as they stand. This is why we need to be working with local authorities now, as they, too, recognise that the creative industries are an important driver of the economy and offer many employment and personal development opportunities.
If the amendments are agreed, the industry will work with the LGA to develop a risk assessment framework that will streamline the system and reduce bureaucracy. These amendments are absolutely not about creating more work and headaches for local authorities. The legislation would put the responsibility in the hands of the producer to achieve the required standards of risk assessment. This would be delivered through an agreed and standardised format. Local authorities would then be freed to learn more about the work of production companies and to focus more on the critical compliance issues. A great deal of work has already been done by the industry to develop a risk assessment framework, and it is ready to be developed further.
Finally, I point out that these amendments have been developed in collaboration with an industry-wide coalition of public service broadcasters, including the BBC, ITV, Channel 4 and Pact—the Producers Alliance for Cinema and Television. There is strong support from the National Network for Children in Employment and Entertainment, chaperones, schools and child psychologists. The amendments also have cross-party support, including from the noble Lord, Lord Inglewood, chair of the Lords Communications Committee.
I hope the Minister will agree that this Bill offers a key opportunity to address safeguarding for children around performance. These amendments would make sure that all children, no matter where they live around the country, have equal and safe access to positive development opportunities. So let us take this opportunity to update antiquated legislation that is not fit for purpose. We simply cannot leave this for another 50 years. I ask the Government to support these amendments and send out a clear message to all involved with child performance regulations that government are taking action now. I beg to move.
Baroness Howe of Idlicote
My Lords, I am a firm supporter of child protection, as well as someone with a long-standing interest and involvement in broadcasting issues. The amendment in the name of the noble Baroness, Lady Benjamin, aims to improve the legislative framework to the benefit of both those areas, ultimately providing children with more opportunities to participate in performances of all kinds under a clear and robust framework of protection. I therefore very much welcome and support Amendment 268.
Most of your Lordships will be familiar with the appearance of children on our television screens, whether it is in documentaries, dedicated children’s shows, dramas or entertainment programmes. Children benefit from these appearances by gaining confidence and new skills, and it is important for society as a whole that children are both seen and heard in the media. Equally, we can all agree that children should have the right to participate in such programmes and that the process for ensuring that they are appropriately protected should be clear and consistent. As we have heard, unfortunately at present this is not the case.
In particular, I welcome the comments made by the noble Baroness, Lady Benjamin, around improving equality of opportunity. I have been a long-standing campaigner for equal opportunities for adults, and they are of equal importance for children. The noble Baroness talked about how some local authorities deny children in their regions the opportunities to participate, while others try to navigate the legislation. It cannot be an acceptable state of affairs for some children to be given the opportunity to participate in a programme while others are denied it purely because of the lottery, as the noble Baroness said, of where they happen to live. That must be changed so that all children of all ages can participate in a full range of programmes.
Protection of the child is at the heart of our discussions throughout the Bill and must be at the heart of any considerations here. I am assured that the broadcasting industry is not looking to get out of its responsibilities. As the noble Baroness, Lady Benjamin, said, this is about better regulation, which is the goal of all who sit in this House. The amendment would introduce a comprehensive, standardised risk assessment, covering all possible health and welfare issues, and make it more efficient and consistent. It would be underpinned by the existing regulatory framework that would continue to be in place.
Broadcasters are obliged under the Ofcom Broadcasting Code to have a duty of care to the,
“physical and emotional welfare and the dignity of people under eighteen”,
participating in programmes. That applies to all television programmes at all times. I know that a great deal of guidance is issued and that efforts are made by all in the industry to meet these responsibilities.
The amendment is aimed at providing much-needed reform to the current system and replacing it with a more consistent, clearer and, above all, fairer framework that puts risk at its heart. That means that rather than spending their time trying to navigate the complex laws and arbitrary definitions, the production companies, local authorities and broadcasters can better spend their time analysing the real risks and putting child protection more at the heart of their work. These changes will provide clarity and consistency to ensure that every child in performance is properly protected and that all children are licensed. I therefore urge your Lordships, particularly the Minister, to support this amendment.
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a television producer for the BBC. I support the amendment. It will both encourage children to extend their skills and protect them from the possible threats posed by the proliferation of new media platforms. It responds to the explosion in the range of media in which children can now appear. It takes into account the ever-changing programming available today, as factual and entertainment programmes are commissioned to entertain an audience with an increasingly short attention span and greater demands to be surprised and shocked.
The amendment would introduce a consistent local authority licensing system for under-16s who perform in the visual media, as we have already heard. As a television producer, it might seem odd that I should want to make my life and that of my colleagues more difficult by extending the regulatory regime, so that we would have to do more work when preparing for a production that involves young people. But it is because I am a television producer that I am well aware of how the present regulatory system is failing children. It often frustrates the hopes of children while failing to protect them from the dangers that may await them.
The noble Baroness, Lady Benjamin, explained the chaotic postcode lottery of different local authorities and their responses, which is very difficult for producers in the media who want to work with children. There is a case of children in a school that served two neighbouring local education authorities. The school was asked to take part in a concert to be broadcast on television. But when it came to transmission, only half the choir had permission to perform. One authority had given a licence to perform and the neighbouring authority had refused. How on earth can that be fair on the children involved?
Subsection (6) of the proposed new clause is in line with paragraph 104 of Sarah Thane’s review, which calls for a proper definition of what constitutes “performance”. The subsection is very important. It spells out which filmed activities involving children do not require a licence, although they will still of course require permission from parents and head teachers. It makes clear that everything else would be covered by the licensing system. The result would be that many new genres, which at present are not covered, would be included.
For instance, there is a new type of programming called structured reality TV, which masquerades as observational documentary while in fact the participants are open to direction. The genre covers shows such as “The Only Way is Essex” and “Made in Chelsea”, with which I am sure your Lordships will be familiar, which are massively popular with a young audience. At the beginning of the show “TOWIE”, viewers are mischievously warned, “Some of the tans you see might be fake, but these are real people, although some of what they do has had a little nip and tuck purely for your entertainment”. The warning should give the Committee a clue that the characters are subject to a narrative created by producers in which they are directed in a situation to ensure maximum drama, violence and even sex.
The Committee will be pleased to hear that at the moment most of the participants in these shows are aged over 18, but there are attempts to commission versions with much younger characters. The executive producer of “The Only Way is Essex” has said that when the producers are casting characters for these reality shows, they have to read them what is called “the talk of doom”, in which they warn them that people chosen to appear in the show will be recognised and abused in the street, their private lives will be watched and criticised by millions and their lives will be completely changed, not always for the better.
Apparently, the candidates, all from the social media generation, look at the executive producer with blank incomprehension. They cannot understand why they are even being warned about this. These young people’s private lives are already open books, thanks to social media. I fear that there is a generation who do not understand how psychologically damaging it can be have your privacy destroyed. We as lawmakers need to protect them and ensure that in an ever-changing media environment they are not exploited by the ruthless demands of the media.
Subsections (7), (8) and (9) of the proposed new clause are in line with the recommendations in paragraph 92 of Sarah Thane’s review, which suggests that, when it comes to licensing, the focus should be on the child—on what they are being asked to do and on the level of risk involved. This would ensure, as has already been said by noble Lords, that the consideration by local authorities of the risk to children is uniform and thorough. At the moment, decisions made by LEAs can be irrational. There was recently a case of a six year-old boy who was mentored and trained by the Olympic diver, Tom Daley, and who wanted to appear with him on the ITV show, “Splash”. All he wanted to do was dive with his hero on television, but at the last minute his local LEA in Cornwall refused him a licence to appear on the grounds that he was too young. You can imagine his disappointment.
If this amendment is adopted, a licensing code of practice will be rolled out uniformly to all local authorities across the country. Its risk assessment will cover the mental and physical health of the young people taking part in performances. Obviously, the risk assessments should be adhered to, but in the present climate of pressures on budgets and the intense competition to surprise and shock audiences across the media, enforcement will be crucial. The new system must include a tough regime of inspection of productions that involve children.
We are in a new world. The internet and digital television offer us a jungle of diversity and shock. We need to update, streamline and extend our present licensing system. Only then will our children’s performances on the media be directed with their best mental and physical welfare being at the heart of the production. I urge noble Lords to support this amendment.
Lord Storey
My Lords, I am tempted to suggest that perhaps there ought to be some regulations regarding the times that we can perform, so that we know when we will start and finish and that we are being safeguarded correctly—but clearly that is not going to happen.
I went along to an all-party group looking at children and young performers in the media. I did not realise the problems that not only children face in terms of safeguarding. I am being told to shut up—you see, I cannot even perform.
I will make three very quick points. First, the legislation that was quite rightly introduced in the early 1960s was to protect children, but since then history has moved on. Times have moved on. Never mind a few television channels, we have hundreds of them. We are seeing the law being broken. There are television shows that are breaking the law. There are others that are playing by the outdated 1960s regulations. For example, a poor lad wins a talent competition, but because the witching hour has passed, he has to sit in the audience and cannot be part of the winning group.
I remind noble Lords of the three concepts that my noble friend Lady Benjamin spoke about: consistency, transparency and making sure that safeguarding happens. Currently, safeguarding does not happen. If we take only one thing from this rather truncated discussion, it should be that safeguarding children has to be not only about safeguarding them as individuals but about safeguarding their opportunities. It cannot be right that children in some local authorities are allowed to take part while in other local authorities they are not.
When the Minister replies—briefly, no doubt—I ask him to consider how we can make this happen, because we cannot have legislation trying to protect our young people that goes back to the early 1960s. I had lots more to say, but perhaps I can save that for another time—or, hopefully, not.
Lord Stevenson of Balmacara
My Lords, I thank noble Lords who contributed to this debate. It is a good topic and one which we have been happy to put our names to in order for it to have the best possible chance of being successful.
The noble Baroness, Lady Benjamin, will not mind me saying that when I first came down as a raw and untutored-in-the-cinematic-arts person from Scotland, she was one of the first people I met. She wowed me then, and she wows me now. That performance—Floella, you were wonderful.
I am very pleased to be able to support this update of legislation that was last updated in 1963. Clearly, as we have heard, the world of television and film performance has been transformed since then. As noble Lords mentioned, it is important that the legislation properly reflects the full range of opportunities available to young people and at the same time builds in safeguards that will protect them from exploitation or physical or mental harm.
However, the chance to be involved in film and television work—indeed, this also applies to stage work—depends where you live, with local authorities operating rules in a very inconsistent way. There are also huge disparities in the amount of paperwork required. We need to update the legislation. It needs to widen the types of involvement suitable for child participants and to make sure that it covers the range, as has been mentioned, away from just simply acting and singing. What a wonderful world 1963 must have been if that was all you could do. I would not know. “Stop mucking about”.
Lord Nash
My Lords, I thank my noble friend Lady Benjamin and all other noble Lords who spoke in this important debate. My noble friend Lady Benjamin makes a heartfelt case for updating the law in this area. Her long involvement with the performing arts and her work with children make her extremely well qualified to speak on these matters—as of course is my noble friend Lord Colville.
The achievements of the UK broadcasting sector and the importance of the creative arts to our economy cannot be overestimated. Our cultural industries are recognised throughout the world for their groundbreaking innovation and their wealth of creative talent. We are proud of that, and we should continue to support them to grow and achieve. We must nurture our young talent. The child performance licensing system was designed to allow children to take part in performances and, importantly, to ensure that arrangements are in place to protect them when they do. The broad framework has done that effectively and continues to do so. This is also something to be proud of.
The system was designed in an age when broadcasting was in its infancy. New forms of media that are commonplace today were unheard of then. Our attitudes to children and to art have also moved with the times. However, some aspects of the licensing framework clearly have not. That is why, last year, the Government consulted on proposals for change. The consultation highlighted a number of problems. Some problems certainly stem from different local approaches to administration, as noble Lords have said. I welcome Councillor Simmonds’s leadership in tackling this. I recognise his concerns, and I am pleased that the Local Government Association plans to promote best practice to achieve greater consistency and reduce bureaucracy in this area.
We want to see more use of the flexibilities that already exist, especially when children perform in a non-professional capacity. More amateur groups and charities with a good track record for safeguarding should be approved to involve children in performances without the need for extra paperwork. Paperwork does not protect children.
Problems clearly exist in the system, but responses to our consultation were split on some key proposals. We do not agree the case for wholesale legislative change at this time. It is important that we get the balance right between increasing opportunities for children and protecting them from undue risk. We do not intend to take any action that could reduce the protections that are in place for child performers.
I recognise, however, that there are a small number of legal provisions that currently prevent children from taking up opportunities, for no good reason. We heard recently from the Royal Opera House about how an anomaly in the regulations meant it could not screen a ballet performance to a worldwide audience, or even to the home town of a very talented young dancer. The well-being of children is paramount, but there should not be unnecessary barriers to their taking part in performance arts, or to the airing of their talents.
I listened carefully to what my noble friend Lady Benjamin said tonight and at Second Reading, and to what other noble Lords said, and I am delighted that I shall meet her tomorrow. I look forward to that. We will explore what might be done to remove barriers without unpicking any of the important safeguards, and we are keen to be as helpful as possible. I therefore urge my noble friend Lady Benjamin to withdraw her amendment.
As this is the last debate in Committee, I take this opportunity to thank all noble Lords—those here this evening and those who have attended previous sittings—for their constructive, insightful and expert contributions to our Committee debates on the Bill. I also thank on behalf of us all the chairs, clerks and Hansard for staying on tonight.
This has been a most thorough and comprehensive scrutiny of the Bill. I and my noble friends Lady Northover, Lord McNally, Lord Attlee, Lord Howe and Lord Younger have learnt a great deal from noble Lords. We have a number of meetings already arranged, and I look forward to speaking to noble Lords here today and to many others about the issues that we have debated. I am committed to ensuring that those discussions move forward constructively so that we can resolve many of the issues that we have discussed ahead of Report.
Baroness Benjamin
I thank my noble friend for that response. I think that there is some sort of encouragement there. I cannot quite read the signs, but I hope that when we meet tomorrow I will get something perhaps a bit more constructive and concrete from him.
I am very grateful to all noble Lords who put their names to these amendments—it means so much to me—and to those who spoke so eloquently at this late hour. It is much appreciated. All noble Lords pointed out that the amendments represent an important step-change in addressing inequality as well as ensuring that there are provisions in place for strong safeguards and protection for all children who wish to perform and take part in any aspect of today’s vast media environment. I am encouraged to hear that the Minister will give guidance and recommendations to local authorities on how to have concise, coherent and consistent guidelines. That is wonderful. I strongly believe that we need to go further. I appreciate that using this Bill to solve the problem of children’s performance regulations might not be possible, but this is an important issue that ultimately will need more permanent change to the current outdated legislation.
I will say something now that I will probably say tomorrow—but I want to say it publicly. I intend to bring a Private Member’s Bill at an appropriate point to deal with child performance regulation, bringing it into the 21st century, to cover the range of concerns that those in the industry have with the existing Act. Will the Minister be able to give me a reassurance that the Government will give strong consideration and support to such a Bill if that were the case?
Baroness Benjamin
I thought that my noble friend might say that, but I wanted to say it publicly anyway. I look forward to discussing this matter further. I, too, thank Hansard for staying with us at this late hour to record what we have said on this important issue. With that in mind, I look forward to meeting my noble friend the Minister tomorrow, and I beg leave to withdraw my amendment.
“(6) A statutory instrument containing (whether alone or with other provision)—
(a) the first regulations to be made under section 49,(b) an order under section 54(1) or 55(1), or(c) an order under section 108 which amends or repeals any provision of primary legislation,is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”