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Nigel Huddleston (Mid Worcestershire) (Con)
I beg to move, That the House sit in private.
Question put forthwith (Standing Order No. 163), and negatived.
Parental Bereavement (Leave and Pay) Bill
Friday 11th May 2018
(5 years, 11 months ago)
Commons ChamberRead Full debate Parental Bereavement (Leave and Pay) Act 2018 View all Parental Bereavement (Leave and Pay) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 11 May 2018 - (11 May 2018)
Kevin Foster (Torbay) (Con)
I beg to move amendment 1, page 2, line 11, in the schedule, leave out ‘parent’ and insert ‘primary care giver’.
This amendment would widen the provision to include those who are not ‘parents’ but were the main carer of the deceased child.
Madam Deputy Speaker (Mrs Eleanor Laing)
With this it will be convenient to discuss the following:
Amendment 2, page 2, line 11, after ‘parent’, insert
‘or grandparent where they were the primary carer of the child.’
This amendment would widen the provision to include grandparents where they were the primary carer of the deceased child.
Amendment 3, page 2, leave out line 22.
This amendment would remove the ability to set the period within which the leave may be taken.
Amendment 22, page 2, line 22, at end insert,
“, including arrangements for taking the entitled leave at different points within the period specified in subsection (6).”
This amendment would ensure that regulations on parental bereavement leave provide flexibility on when the entitled leave can be taken.
Amendment 4, page 2, line 25, leave out ‘two’ and insert ‘four’.
This amendment would increase the minimum time off from work from two to four weeks.
Amendment 5, page 2, leave out lines 26 to 28.
This amendment would remove any deadline for when the leave must be taken.
Amendment 23, page 2, line 27, leave out ‘56 days’ and insert ‘52 weeks’.
This amendment would extend the period of time within which parental bereavement leave must be taken from 56 days to 52 weeks
Amendment 6, page 3, line 1, leave out
‘“child” means a person under the age of 18;’.
This amendment would mean that parental bereavement leave would apply to a child of any age, not just those below the age of 18.
Amendment 24, page 3, line 1, leave out from ‘a’ to end of line 3 and insert
‘son or daughter of any age’.
This amendment would change the definition of “child”, for the purpose of parental bereavement leave, to a son or daughter of any age.
Amendment 7, page 3, line 11, after ‘absence,’ insert ‘save for remuneration’.
This amendment would make clear that the employee is not entitled to contractual pay for the leave.
Amendment 8, page 3, line 18, leave out
‘a job of a kind prescribed by regulations,’
and insert
‘the job in which they were employed before their absence,’.
Amendment 11, page 4, leave out lines 8 to 17.
This amendment would remove the power to make regulations providing for notices, or make provision for any consequences as a result of failing to give notice, or failure to keep records of notice or comply with other procedural requirements.
Amendment 10, page 4, leave out lines 8 to 10.
This amendment would remove the requirement to give any notice to take leave.
Amendment 9, page 4, line 8, after ‘about’ insert ‘reasonable’.
This amendment would create a requirement of giving a reasonable notice period before taking the leave.
Amendment 12, page 5, line 9, leave out ‘parent’ and insert ‘primary care giver’.
This amendment would widen the provision to include those who are not ‘parents’ but were the main carer of the deceased child.
Amendment 13, page 5, line 11, leave out from ‘employer’ to end of line 12.
This amendment would remove the qualifying period to make the pay element a day one right.
Amendment 15, page 5, leave out from the start of line 40 to the end of line 2 on page 6.
This amendment would remove the requirement to give notice, and how to give notice in order to receive parental bereavement pay.
Amendment 16, page 5, line 44, after ‘which’ insert ‘reasonable’.
This amendment would require the individual to give a reasonable amount of notice for taking bereavement pay.
Amendment 17, page 6, leave out lines 1 and 2 and insert—
“(3) Employers must accept notice given in writing, face to face, by telephone or through a third party on behalf of the bereaved parent.”
This amendment would remove the requirement to give notice in writing, allowing this to be given in conversation or through a third party on their behalf.
Amendment 18, page 6, leave out from start of line 48 to end of line 2 on page 7.
This amendment would remove the liability of HMRC to pay statutory bereavement pay.
Amendment 19, page 7, line 13, leave out ‘two’ and insert ‘four’.
This amendment would increase the payment for bereavement pay from a minimum of two to four weeks.
Amendment 20, page 7, leave out lines 18 to 21.
This amendment would remove the requirement for bereavement pay to be paid within at least 56 days.
Amendment 21, page 9, line 18, leave out
‘“child” means a person under the age of 18’.
This amendment would mean that parental bereavement pay would apply to a child of any age, not just those below the age of 18.
Amendment 25, page 9, line 18, leave out from ‘a’ to end of line 20 and insert
‘son or daughter of any age’.
This amendment would change the definition of “child”, for the purpose of parental bereavement pay, to a son or daughter of any age.
Kevin Foster
It makes a change to be called first in a Friday debate. [Interruption] Yes, or ever. I usually have to wait for at least three or four hours before being called.
First, let me make it clear that I fully support the Bill promoted by my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake), and I have no intention of attempting to make a monumentally long speech to talk it out. However, my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) and I wish to test some of the provisions, particularly in the schedule. We do not propose amendments to the two main clauses; our amendments are only to the schedule, as we would like to hear a bit more about some aspects of it and to test the reaction of my hon. Friend the Member for Thirsk and Malton and the Minister to some of our amendments.
This is a simple Bill; it has just two clauses, one of which is the title clause. However, the attached schedule requires further debate and scrutiny on the Floor of the House. I should make it clear that no employee in the country would ever want to benefit from the Bill’s provisions, as it addresses what would undoubtedly be one of the most difficult periods in anyone’s life; all parents and grandparents will want to see their children and grandchildren live long and happy lives. However, it is to be welcomed that the House is talking about this subject today, and we hope that the Bill will receive its Third Reading and head off to the other place. The Bill demonstrates how MPs can in this place draw on their personal experiences to make a difference for others who might have to deal with similar experiences. I accept that some of the issues we will be discussing today might have been debated in the Bill Committee, but, sadly, I was not lucky enough to be selected to serve on it, which is why I raise them on Report.
In the interests of brevity, I will talk about my amendments in groups, according to the themes they cover, rather than go through each one individually. Also, some of the amendments work in combination to offer distinct packages that address particular themes, and in these cases it would not make sense to pass one amendment but not another, as that would create odd law.
The amendments cover four distinct themes. The first deals with people who act as the parent but are not the biological parent, such as a primary carer who has picked up the reins when things go wrong; that is addressed by my amendments 1 and 2 and amendment 12 from my hon. Friend the Member for Mid Dorset and North Poole. The second theme is the issue of when leave may be taken, given that some people might wish to work in the immediate aftermath of losing a child but subsequently find that grief requires them to take time off at a slightly later date; not everyone reacts in the same way. This area is addressed by my amendments 3 and 5, amendments 22 and 23 in the name of the hon. Member for North Ayrshire and Arran (Patricia Gibson) and amendments 15, 16, 17 and 20 from my hon. Friend.
The third theme involves the requirement to give notice and, given the nature of this provision, my proposal for a requirement to give reasonable notice instead. This is covered in my amendments 9, 10 and 11. The fourth theme relates to the cut-off created by the 18th birthday and the proposals to change the definition of a child so that the provisions refer not only to sons and daughters under the age of 18. This is covered by amendments 6, 24 and 21. Finally there are three more amendments that I will speak to specifically: amendments 4, 7 and 8.
I shall start with the first theme. Sometimes, the person acting as a parent is not the biological parent. They could be a primary carer who has picked up the reins when things have gone wrong. Amendments 1, 2 and 12 cover this area. I think that we would all agree that parenting is not just about biology. It is not just about who has physically created a child, as we see with egg and sperm donor births. My concern is that if the Bill is passed without amendment to the schedule, there could be too much focus on the parent, rather than on the person who has done the parenting by looking after the child, bringing them up and loving and caring for them. The amendments will make it clearer that this is about the primary care giver—the person who is acting as the parent. I would be interested to hear my hon. Friend’s views on this and those of the Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Watford (Richard Harrington). We would not want to get into a situation where the person or couple who were acting as the parents could not take time off, yet an estranged biological parent could do so.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
I, too, have put my name to this amendment, and I intend to speak to it in a few moments. The way in which the Bill is drafted means that the Minister will lay regulations in due course, but should we not take this opportunity now to express our views on the Floor of the House about what the definition of a bereaved parent should be? Of course we trust Ministers to get this right, but it is for us as well to put forward what we think would be the appropriate definitions—hence these amendments.
Kevin Foster
Absolutely; I could not agree with my hon. Friend more. I accept that the Bill has had a good run in, particularly due to the valiant efforts of my hon. Friends the Members for Colchester (Will Quince) and for Eddisbury (Antoinette Sandbach), but it is important to examine these questions on the Floor of the House, especially when we are dealing with Private Members’ Bills. They are slightly different from Government Bills, which might have had lengthy periods of consultation in Green Papers and White Papers, perhaps following a manifesto commitment. This Bill also has a manifesto commitment behind it, but I shall not refer to that further because it already enjoys cross-party support. All the parties represented in the Chamber today strongly support creating this type of provision.
This is about being very clear, so that anyone seeking to interpret this legislation at a later date will know what our intention was in passing it. We also want to be clear what is in the Minister’s mind on this subject. Who exactly is the parent under this legislation? Someone sitting at home listening to this might wonder what on earth this discussion is about. Actually, it is about ensuring that the legal definition involves not only the biological parents but those who are effectively parenting and looking after a child as though they were the parent at the sad time of that child’s death.
This brings me to my own experience in local government in Coventry, where we had child protection services. Often, a way to avoid a child going into care was for a relative, particularly a grandparent, effectively to become the parent. The child would be placed with them to keep them within the family and maintain some parental contact, without being formally adopted. I accept that, under the current wording of the Bill, someone is legally the parent if there has been a formal adoption process. There should be no confusion about that.
I want to ensure that the regulations will cover a situation in which a grandparent, uncle or aunt—or even a much older brother or sister—has stepped into the parent’s shoes to act in absolutely the right way. In the child protection context, that sometimes involved someone giving their younger brother or sister a chance to stay out of an institution. I want someone who has taken on that role to be able to benefit from this type of provision. They will have developed exactly the same bonds of attachment as a parent and, sadly, they will also have had to deal with the formalities following the death in the same way that a parent would normally do. I want the Bill to cover them as well.
Karen Lee (Lincoln) (Lab)
When I lost my daughter, she was grown up—she was not a child—and I want to suggest that people might need to take leave on odd days. I know that that is not easy to facilitate, but people do not know when grief is going to hit them.
Kevin Foster
I am sorry to hear about the hon. Lady’s experience. It would be interesting to hear the Minister’s response to that suggestion as well. Perhaps the leave should not simply be a block of two weeks; after all, this is not like taking a holiday. Events such as the child’s birthday or something else that the family was looking forward to might crop up, and perhaps employers could allow the bereaved person to take their leave in two separate weeks or in separate days over a period, rather than as a two-week block. Also, I wonder whether the Bill focuses too heavily on the funeral as the main event. Clearly, it is a difficult day and people will want to take time off around it, but not necessarily two weeks. As the hon. Lady says, there might be other days, perhaps not too far in the future—a family wedding, for example—that will also be difficult for the parent and taking time off at that point would be appropriate. I thank her for her intervention.
I hope that the Minister noted what she said and will reflect on it in his contribution. In amendment 23, the hon. Member for North Ayrshire and Arran proposes to increase the amount of leave that can be taken to up to a year, but I want to reassure people that my amendments are about ensuring that things are not too tough or quick after the event.
My third group of amendments—9 to 11—relate to the requirement for notice and the ability to create such a requirement. Given the nature of the provision, I feel that it is more appropriate to examine creating a requirement for a reasonable notice period. It is safe to say that such events will rarely be predictable, and we have heard testimony in the Chamber before from Members who have gone through a stillbirth. Something wonderful is expected to happen, and people plan for it and look forward to it, but what happens instead is a shattering experience. I am worried that if we are too prescriptive about requirements to give notice, we could create a situation in which the bereaved find themselves having to comply with a particularly tough notice period requirement or having to deal with their employer in a particular way. I accept that the vast majority of employers would bend over backwards if an employee went through this type of situation, but we need the law to deal with the handful that would not.
Antoinette Sandbach (Eddisbury) (Con)
There was a degree of shock among the members of the Bill Committee at the evidence of employers who were not prepared to give employees leave if they were pregnant and then lost their child. I and many other Members were horrified by the lack of compassion and understanding being demonstrated by some people towards their employees at a deeply personally distressing time. I welcome my hon. Friend’s amendments that address the issue, which is an important reason for why we are being forced to legislate in this area.
Kevin Foster
My hon. Friend is right. The vast majority of employers will be considerate and understanding and will look to support their employees. At the end of the day, they will generate a lot of loyalty in an employee that might well be repaid in a positive way at a later date. It is not a burden for an employer to be good to their employees. Reducing staff turnover can actually be a huge boost for a business. Employees can get experience and develop skills and will stay if they feel that the situation is more of a partnership than a “them and us” relationship.
Unfortunately, however, there is still an undoubted need to legislate. The majority of people would not discriminate against others based on their gender, sexual orientation, race or ethnicity, but there are some who would, which is why we have the law and the relevant sanctions in place.
Chris Philp (Croydon South) (Con)
I support my hon. Friend’s case for protecting bereaved employees by ensuring that notice periods operate in a reasonable fashion. However, to ensure that nobody falls through the cracks, does my hon. Friend agree that there may be a case for a more general duty on employers to act reasonably? We may not be able to set out every eventuality in regulations, so a general duty to act reasonably would provide protection for bereaved parents.
Kevin Foster
My hon. Friend has clearly read my amendment 9, which talks about a “reasonable” notice period. Is written notice reasonable in some circumstances, or would a simple phone call from a trusted close relative be suitable? People react to grief in different ways. The hon. Member for Lincoln (Karen Lee) pointed out that some people might need to take specific days off, but others may want the time immediately. Some people may even want to come into work the next morning, and they will be able to speak to their employer face to face.
I agree with my hon. Friend the Member for Croydon South (Chris Philp) that things should be done on a reasonable basis. As a lawyer, I accept that there can be issues with words such as “reasonable” and “proportionate” and with where exactly we draw the line, but he is right that we do not want to split hairs about whether something is right or wrong. My hon. Friend the Member for Eddisbury touched on the fact that there will be no issues with most employers, but when an employer is looking to get out of doing something, that may lead to issues about how exactly notice was given or whether it absolutely conformed with the regulations. No reasonable employer would do that, but we legislate for those who are anything but reasonable.
Kevin Hollinrake (Thirsk and Malton) (Con)
My hon. Friend is making some strong points. He will be aware that there is already a requirement for employers to give reasonable time off when people suffer such tragedies but, as he says, the Bill seeks to ensure that the employers who would not normally be generous and sympathetic also give people the time off that they need at times of great tragedy and grief.
Kevin Foster
My hon. Friend is right that a reasonable employer will behave differently from the type of person at whom the legislation is aimed. To be blunt, the legislation will target the sort of person who adopts the employment practices of Scrooge and Marley—an admittedly small number of employers—but I do not want the Bill to offer a get-out for people who may want to act inappropriately. We must ensure that Parliament’s intention is clear in the legislation that we pass.
James Cartlidge (South Suffolk) (Con)
My hon. Friend is making a powerful argument. As for whether employers will act reasonably, this is not necessarily just about the Scrooge-like employers who are literally uncaring. We potentially need to be more prescriptive for certain corporate environments, particularly those with high turnover or significant distance between the management and employees due to the number of people. In a smaller company, where the bond between the employees and an employer who values them is strong, the employer will go out of their way to help anyway.
Kevin Foster
My hon. Friend is right. In a small or micro-business with four or five employees, the relationship may feel more like a partnership, instead of a situation involving the boss and then four members of staff. I accept that we may need to be slightly more prescriptive for larger employers, but I do not want the legislation to become so prescriptive that it provides a way for someone who wants to get every last penny out of their employee to avoid the regulations. However, we need to be a bit more prescriptive to deal with some of the examples that have been cited.
Karen Lee
It is just as important that an employee is supported when they go back to work. I was working on a hospital ward, and the people were just fantastic. People can say anything about the NHS, but it was wonderful to me. I had something like 10 weeks off while nursing my daughter, and when I went back I was doing audits of heart attacks for MINAP—the Myocardial Ischaemia National Audit Project—cleaning cupboards and all sorts of things. It was about six weeks before I went near a patient again. Every business is different, but people cannot just walk back in and pretend that everything is the same as it was on the day they left after their world has been turned upside down. It is vital that that is taken into consideration.
Kevin Foster
It is apt to reflect on the NHS, which provides such support to its staff as well as to its patients, in its 70th year. The hon. Lady is right that it is not just about leave. The employer will need to behave reasonably when the employee comes back.
As I have said, an employer would not feel comfortable about a person doing certain jobs if they have just suffered such a bereavement. Few of us would suggest it is a good idea to fly a plane the next day, for example, or to do something that requires absolute concentration—I am pretty sure the military have quite strong provisions on leave or, at the very least, on excusing people from particular duties. If a person’s mind is elsewhere, if they have had their life turned upside down, they will not be in the mood to do air traffic control, for example. It is appropriate that employers think about that when a bereaved parent comes back from leave.
It is hard to legislate for every instance, and thankfully many employers are very good and are fairly understanding. The Bill sets a legal minimum.
David Linden (Glasgow East) (SNP)
The hon. Gentleman is making a good point about ensuring the Bill is as flexible as possible, and I support some of the amendments he has tabled. I support all the amendments made in Committee. One of my concerns—my hon. Friend the Member for North Ayrshire and Arran (Patricia Gibson) and I tabled an amendment on this in Committee—is that a person will not fall within the scope of the Bill if they have been with their employer for fewer than 26 weeks. The Bill is all good and well, but does the hon. Member for Torbay (Kevin Foster) share my concern that a person who has been with their employer for, say, 25 and a half weeks will not be covered? Would he support the Bill being extended to people who have been with their employer for fewer than 26 weeks?
Kevin Foster
Bereavement leave should be a day one right, and I am reasonably supportive of the hon. Gentleman’s idea, or at least of having an idea of how an employer should approach leave for employees who have worked for them for a very short period of time. I accept it is probably slightly different for people who have worked for their employer for a very short period of time, but I think we would all hope and expect an employer to behave reasonably, because clearly this is not something a parent will have planned. This is not a provision of which any parent wants to take advantage, far from it. I am sure every parent in the Chamber would hope they never have to take advantage of this provision. I am interested to hear the Minister’s response on how we set that limit.
Again, we do not want the ludicrous situation in which a person, for the sake of argument, has worked one day short of the limit—for example, the death happens at 11 o’clock at night and they would have been covered if it had happened at 1 o’clock in the morning. We do not want such a cliff edge. I will address another such issue in relation to other amendments.
I support the broad thrust of what the hon. Member for Glasgow East (David Linden) says, and it will be interesting to hear the Minister and perhaps the promoter of the Bill, my hon. Friend the Member for Thirsk and Malton, outline how they feel it should work so we do not have cliff edges. The whole point of the Bill is to have a position that reflects the devastating impact on people.
I am conscious that I have been on this theme for a little while, so it is probably time to move on to the fourth theme of my amendments. I touched on cut-offs in my response to the hon. Gentleman’s intervention, and I am also concerned about the cut-off created by a child’s 18th birthday. My amendments 6 and 24, and amendment 21 tabled by my hon. Friend the Member for Mid Dorset and North Poole, would change the definition of a child so it refers not only to sons and daughters aged under 18.
I think we would all feel that losing a child is hard at any age. Sadly, in my own family, my grandmother Beryl lost her son Mike. Mike was 59 and, by that point, my grandmother was in her late 70s, but the impact on her was just as strong as it would have been had Mike been 12 and had she been 30. Of course, due to her age, she did not need to worry about time off work—she was already a pensioner—but the impact on her was just as significant. She had lost her son.
The law does not view a person aged over 18 as a child. The law rightly views them as an adult—they are able to make their own decisions and are able to participate in life—but the parent still views them as their child. Sadly, my grandmother outlived not only her son Mike but the two children of her second husband, Cyril, my maternal grandfather. Both my mother and my uncle died before my grandmother, both passing away in their 50s. The impact on my grandmother was quite profound. My mother was the last of the three to pass away, four years ago. My grandmother said, “Here’s me sat here at 85 with all the children”—as she viewed them—“gone.”
It makes logical sense that a child aged under 18 should clearly be covered by the Bill. That is unarguable, and it is absolutely right that the provisions also apply to stillbirths.
Michael Tomlinson
My hon. Friend is making a powerful point. Does he agree that amendments 6, 21 and 24 would not widen the scope too greatly? His powerful example shows that many people in this situation will already be retired, so removing the age restriction of 18 does not widen the scope. When looking for a balance between employers and employees, which of course we must do, the amendments would not widen the scope too much.
Kevin Foster
The amendments would widen the scope a bit. An employee aged 61, 62 or 63 might lose a relative in their early 40s but, yes, by the point children are in their 50s or 60s, their parent is almost certain to have retired, or at the very least will only be in part-time employment. Monica Bulman, a nurse who recently retired in Torbay, did nearly 60 years in the NHS, which is remarkable. She was in her 80s when she retired.
For me, it is about the principle and about how the Minister and my hon. Friend the Member for Thirsk and Malton think employers should reasonably act in circumstances where, for everyone else, an adult has passed away but for the employee it is their child. The employee will remember their child as a baby, and that will have an emotional impact. I am concerned that we do not create a cliff edge at 18.
Will Quince (Colchester) (Con)
My hon. Friend is making a powerful point. I do not usually disagree with my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), but the amendments would change the remit quite significantly. They would increase the number of potential recipients fivefold. At the moment, as we know, there is an element of fragility in getting private Members’ Bills through the House. We have the support of the Treasury Bench, which is based on financial calculations on the existing number of potential recipients. If we were to increase that fivefold, I fear we would lose Government support because they would have to go back, redo the calculations and get Treasury support again. However well meaning, I encourage him to think about the implications of these amendments.
Kevin Foster
I thank my hon. Friend for his intervention, and I take on board what he says. Perhaps my hon. Friend the Member for Thirsk and Malton will cover this in his speech, but it will be interesting to hear how we would expect employers to react in this circumstance. I am particularly thinking of people aged over 18 who have particularly special needs because of, say, Down’s syndrome. In the past, those with Down’s syndrome sadly lived relatively short lives. We now have examples of those with Down’s syndrome reaching retirement age with very elderly carer parents. That presents its own challenge to local authorities in how to provide care to a parent who is absolutely devoted to caring for their child who is now perhaps in their 30s or 40s. As the parent develops their own care needs in their 70s and 80s it can be difficult to manage them without breaking the special bond the family have had for many decades.
Hearing what my hon. Friend the Member for Colchester says, I may be minded not to press the amendments if they might prevent the Bill from progressing. It would be interesting to hear from the Minister what thoughts the Government have on such cases and how we might expect employers to react. I do not want a situation in which the Bill applies if a person loses a child aged 17 years and 364 days but does not apply if they lose a child aged 18 years and one day. We must ensure there is no such cliff edge, which I do not think is the intention of the Bill.
Will Quince
I totally agree with the points that my hon. Friend is making. The key thing is getting the Bill on to the statute book; once that has happened, we can consider secondary legislation and amendments, but this is about our getting there. We discussed all these things in Committee. There are other issues, covering spouses and other relationships, that people would understandably wish to be included in the Bill. Unfortunately, we cannot do that; we are unlikely to get it through if we do. Everyone in this House would like us to look at the legislation in the future, with a view to amending it, but we have to get the Bill on the statute book as a starting point.
Kevin Foster
I take the points my hon. Friend is making. As I said at the outset, I fully support the Bill—I have no intention of giving a five-hour speech as an attempt to talk it out. When it comes to the key moment, I will not seek a decision on these amendments if that would endanger the Bill. However, it is right that we have this discussion today so that Ministers can listen to the opinions of the House. Sadly, tribunals and courts will be called on to interpret the Bill, but our discussion means they will be able to see clearly that Parliament was not setting a maximum and saying that the provision should stop there, but deciding where the floor—the minimum—should be.
Kevin Hollinrake
My hon. Friend is making some excellent points. The Bill has an impact on the Treasury, with an annual cost of about £3.2 million, because the taxpayer—not the Treasury itself, clearly—will be picking up the tab for the statutory pay element. We have to take that key consideration into account. We must also consider costs for businesses, especially small businesses, as they will suffer the effects more than larger businesses. Small businesses find it much more difficult to cater for absence. As there is already a predicted cost of £2.6 million a year for small businesses, does my hon. Friend agree that we need to strike a balance by taking into account the interests of both business and the individuals who suffer these tragedies?
Kevin Foster
Obviously my hon. Friend is right to say that a balance needs to be struck. On issues such as how much leave there should be, who this applies to and how it applies, we need to strike a balance against cost, particularly to small businesses. It is worth pointing out, as my hon. Friend the Member for South Suffolk (James Cartlidge) rightly mentioned, that many small businesses are likely to be the most reasonable with their employees in any case.
My hon. Friend the Member for Thirsk and Malton is a great champion of small businesses in this Chamber. Sometimes we rightly talk about not wishing to impose this cost or that cost, but a lot of the time we find that some of the worst examples of poorer employment practice are in one or two larger employers, where a rigid rule is applied fiercely to try to squeeze the last pound out, whereas smaller businesses work more as a team. If we walked into the room and were asked to guess who the owner of a small business was, we would not be able to do so, as the business works as a collective. I can think of hotels in Torbay where the owner of a hotel that is worth millions can be found serving the spuds, as the hotel does silver service—they do literally every job in the hotel, as well as being the owner and manager. However, I accept that there is a balance to be struck.
Kevin Foster
Given that I referred to my hon. Friend, I had best let him intervene.
James Cartlidge
Surely the key point is the difference between rigidity and clarity. The fact that management and staff will know where they stand, as opposed to there being a general reliance on reasonableness, is surely a huge benefit that works to the advantage of both sides.
Kevin Foster
We are introducing the Bill to set out in law more clarity on what Parliament expects. We have touched on the fact that we should not create a set of rules that is too rigid, particularly on this 18th birthday issue. We do not want to end up with a bizarre situation in which a doctor putting on the death certificate “five minutes past midnight” means that the Bill will not apply, whereas it would apply had they put “two minutes to midnight”. I understand that we need to be specific, rather than relying on reasonableness, and we that we have to give some guidance. What each of us thinks of as a reasonable expectation in a particular moment will differ, as we are all individuals, with different views and in different circumstances. Some of our constituents rightly take the view that it is not unreasonable to wait a day or two for a reply to their email, whereas others who email at 11 pm will ask why they have not received a reply by 9 o’clock the next morning.
Kevin Foster
It must be wonderful being one of my hon. Friend’s constituents—we will all be emailing him at 3 o’clock tomorrow morning and waiting for the reply. As I was saying, I accept that there is a need for balance, but I do not want the process to be too rigid.
Kevin Foster
I think that I am about to hear it now, so I happily give way.
Kevin Hollinrake
I am happy to come back on this point. We are clearly dealing with a minimum here. We expect employers to be—our evidence absolutely supports the fact that they are—generous and sympathetic in such situations. Many of them give full pay and provide whatever time is needed for the parent to try to recover—or to move on—from the tragedy. We are trying to cater for the isolated numbers of employers who do not take that approach. We believe that one in 10 does not provide a sympathetic and generous policy when these things happen. So we are trying to strike a balance while sending a signal to those employers that they should be generous and sympathetic in such situations.
Kevin Foster
I take on board my hon. Friend’s point, but legislating is not just about sending a signal—we can do that by tabling a motion, making a speech or putting a question to a Minister. This is about setting down a piece of law that is not signalling what employers should do, but telling them what they must do. He is right to say that the Bill will not make much difference at all to 90% of employers. The small business that works as a team and the larger employer that values its staff will be able to sit back and think, “This is pretty much what we do already,” with the exception that the Bill provides for statutory parental bereavement leave and for the taxpayer to make certain payments. The Bill is about dealing with that 10%.
Will Quince
My hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) makes a good point. The Bill enshrines in law the minimums—it is about a floor, not a ceiling. The House should make it clear that on pay and time off, we are providing for statutory minimums. We know that most employers will want to offer more time—the time that their employees need. Likewise, although we are talking about amounts for statutory paternity and maternity pay, I would like to think that most employers will recompense their staff at full pay. I hope that the Government, as a good, compassionate and sensitive employer, will consider ensuring that civil servants are paid at full pay, because that would send a clear signal that the Bill sets out a minimum and there is an expectation that the provision will be greater.
Kevin Foster
I thank my hon. Friend for making the point that this is about the minimum rather than the maximum. I take on board what he and my hon. Friend the Member for Thirsk and Malton have said. I certainly do not want to endanger these provisions, but I will be interested to hear what the Minister says when he responds to the debate. It would be useful to hear his views about the policy that will be adopted in the civil service. If he wishes to intervene now, I would be happy to let him, but he might find it easier to cover that when makes his speech.
This is an appropriate point for me to move on to amendment 7, which relates to the pay level. It would make it clear in the schedule that the minimum pay level will be statutory parental bereavement pay, rather than contractual pay. Like my hon. Friend the Member for Colchester, I hope that most employers will be flexible, but the amendment would make it clearer in the Bill that the minimum is the statutory pay. Of course, if employers wish to pay more—if they wish to treat the period as normal paid leave—they can, but the Bill will set out the minimum.
Chris Philp
I congratulate my hon. Friend on his extremely detailed and thoughtful speech. Will he confirm my understanding of how the process will work: the statutory pay element would be reimbursable by the taxpayer—the Treasury—but any excess over and above that level that the employer might choose to give would not be reimbursable by the taxpayer?
Kevin Foster
I think that my hon. Friend’s interpretation is correct, but perhaps the Minister will cover that when he sums up so that we are absolutely clear about the Treasury’s position. My understanding is that the Bill makes clear the minimum—the statutory pay—but that employers are of course welcome to pay more. As we have heard, most employers—some 90%—are doing the right thing. I should be clear that most employers are already doing exactly what we want them to; we are legislating for the 10% who do not.
Michelle Donelan (Chippenham) (Con)
I echo hon. Members’ comments about the Bill setting the minimum, but it is important that we also recognise that some very small businesses and microbusinesses simply cannot afford to continue to offer full pay because they have to get somebody else in to do the job in the interim. The statutory element is about giving them the ability to be compassionate and let their staff take the time off with some kind of income. It is not just about some employers not getting it; it is a “needs must” thing, too.
Kevin Foster
I recognise that for some employers, particularly microbusinesses in which there might be only two, three or even four employees, it is not about wanting to be nasty, but about the position of a business that is operating hand to mouth incurring the costs of agency staff and so on. That is why it is right that the taxpayer is involved in supporting people at a difficult time. I do not think that any of us object to the taxpayer sharing some of the costs of this provision, rather than it all being loaded on to employers. I accept that there is a balance between what we expect employers to do and what the taxpayer should be asked to pay for.
Having discussed microbusinesses, perhaps this is a good time to move on to amendment 8. I will be interested to hear the thoughts of the Minister and my hon. Friend the Member for Thirsk and Malton about what type of job will be covered. Many people might think, “Really? You have a job and you get paid. That’s simple enough.” Unfortunately, it is not quite that simple in the modern economy. It is not like the situation in decades past when it was perhaps quite easy to identify someone’s employer.
The Bill refers to jobs of a kind specified by regulations, and I am particularly keen to know that there will not be a sort of shopping list of the jobs covered such that if someone delivers milk in the morning, they are be fine, but if someone works on a farm milking a cow, they will not be covered because that job is not listed. My amendment deals with the question of whether someone is employed, and we have a good definition of that in law. Her Majesty’s Revenue and Customs is only too keen to define people as employed so that they can be taxed appropriately on their income from their employment.
I hope that we can explore exactly how we will cover some of the new models of employment, in which someone may not have a job with one employer but regularly works for a group. I am thinking particularly of the gig economy, in which someone might be working irregular shifts, but are to all intents and purposes an employee of an employer. How do we deal with different types of employment model? I accept that we will not be able to cover absolutely every single situation in which someone is paid to do something on someone else’s behalf. There will always be debates about how we treat self-employment. Indeed, the debate about national insurance contributions and what the self-employed are eligible to claim from the welfare and benefits system showed the difficulties with these things.
Kevin Hollinrake
My hon. Friend makes a strong point. The world of work is certainly changing. He will be aware of the Matthew Taylor review, which has been examining issues relating to the gig economy and how we define someone as an employee or a worker, as well as all the different categories of employment and self-employment. We want to keep options open in the Bill so that we can mirror the outcomes of the Taylor review when those issues are settled. We therefore will not have measures in the Bill that we cannot change; we will have flexibility to make sure that people who deserve to be covered by the Bill are covered.
Kevin Foster
I thank my hon. Friend for helping to bring some clarity to the matter. I did not want to get back to the old idea of what a “proper job” is that some of us used to hear at school. It is amazing how many people thought that certain things were proper jobs, and it has to be said that it was mostly men and that a proper job was one that was traditionally male orientated—surprise, surprise—and other things were just basic jobs. However, the sorts of jobs that were once dismissed—in care, healthcare and other areas—are vital in today’s economy, and we need people to be doing them and to see them as the type of job and career that they want to go into.
While exploring the Bill, I was concerned that we should not end up with Parliament in effect asking the Minister to draw up a list of every job he could possibly think of and every type of employment activity that could ever be done for an employer, so amendment 8 is about targeting whether someone is employed. I am conscious that we have to make sure that our language and intentions are fairly clear. We should bear in mind our brief debate on another private Member’s Bill, the Unpaid Trial Work Periods (Prohibition) Bill. Most of us would think that a trial was a very short period—perhaps an hour or two, just to see how someone mixed with a team—but the hon. Member for Glasgow South (Stewart Malcolm McDonald) gave an example of a place that had interpreted a trial as several weeks of working for nothing. Clearly, none of us would view that as a trial; the process was just about trying to dodge minimum and living wage legislation. We need to make sure that there is no opportunity to misuse what we all might think are reasonable words in the English language.
I am conscious of time and wish to give others the opportunity to speak. I shall listen carefully to the arguments made by the Minister and the Bill’s promoter, my hon. Friend the Member for Thirsk and Malton, when they speak about my amendments. I have been reassured by some of the interventions I have taken from my hon. Friend, and I thank my hon. Friend the Member for Colchester for his interventions, which have helped to clarify some points. To be clear, I will support the Bill even if my amendments are not accepted. It would not be beneficial for anyone if the Bill was not passed.
This welcome Bill will help many in the darkest times of their lives. My hon. Friend the Member for Thirsk and Malton can take great pride in the difference that his Bill will make to those people, and my hon. Friends the Members for Eddisbury and for Colchester can take great pride in how they have used their personal experience to help others who end up in the same position. I support the Bill wholeheartedly and hope that the discussion of my amendments will help to make it even better.
Patricia Gibson (North Ayrshire and Arran) (SNP)
It is a pleasure to follow the hon. Member for Torbay (Kevin Foster).
I thank the hon. Member for Thirsk and Malton (Kevin Hollinrake) for bringing forward this Bill and for the consensual and sensitive approach that he has demonstrated as he piloted the Bill to this stage. I appreciate all the work that he has done to ensure that, finally, the anomaly and the injustice of bereaved parents not having any protection in employment law is addressed. I also thank the members of the Bill Committee. I make special mention of the hon. Members for Colchester (Will Quince) and for Eddisbury (Antoinette Sandbach), with whom I have made common cause on this issue.
Kevin Hollinrake
May I put on record my thanks to the hon. Lady for her work on this Bill, particularly during Committee stage. Earlier, she said that we had worked together to improve this Bill. I and my hon. Friend the Member for Colchester (Will Quince) were delighted that the Government were willing to accept her amendment on stillbirth. That is a clear sign of how cross-party working can improve legislation as it goes through the House. That particular amendment will always be attributed to my hon. Friend the Member for Colchester and the hon. Lady.
Patricia Gibson
I thank the hon. Gentleman for his kind words. What the Bill has shown, across this House, is the best of what the House of Commons can be. It is unfortunate that we cannot work in a more consensual manner on many more issues. On an issue such as this, when it is about human beings, compassion and feelings for our fellow man, this House has come out today looking much better than it often does. I thank the hon. Gentleman for his words.
To face the death of a son or daughter with no entitlement to paid leave under the law is a terrible injustice that generations of people before us have suffered. I am proud to say that, today, we will correct that. The Bill sets out a minimum leave period of two weeks. I know that that is not very long, but given that currently there is no entitlement at all, it offers a start and provides legal recognition that the response to such a life-changing event can no longer be—and should no longer be—a matter of discretion for employers. This is one of those days when, whatever criticism people make of the House of Commons, either justified or unjustified, we can feel that we are making a real and practical difference to people’s lives as they face the worst circumstances imaginable—the death of their child.
Let me turn to amendments 22 and 23. We know the trauma that accompanies the death of a child. The first reaction is shock and disbelief, especially in the case of a sudden death. A parent may initially refuse to accept the loss and try to continue as normal, blocking out the experience, which is a common feature of trauma. For some parents, going on as far as possible as though the death is not “real” will be a reaction that helps them cope. Keeping busy is a coping strategy that many use and one that, to a great extent, my own husband used when our baby was stillborn at full term. People cope with the devastation of losing a child in a variety of ways. As the hon. Member for Torbay pointed out, there is no right or wrong way to do this. That is why the amendments are important. If they are passed, they will provide a signal to bereaved parents. The Bill is saying, “We recognise the trauma of your loss and we recognise its life-changing nature, but it is important that you take your leave between these particular weeks, from this date to that date.” I do not believe that that is really what we wish to do; it is not the message that we want to send out, which is why flexibility is so important.
Edward Argar (Charnwood) (Con)
It was a pleasure to serve with the hon. Lady on the Bill Committee. She is absolutely right to highlight the importance of flexibility and also of respect that each person is an individual and that each family copes in different ways. In some tragic cases, there are also practical reasons why greater flexibility is needed. For example, if there is an inquest or an inquiry into a death, that may come significantly later, and that may be a period when leave is needed to cope with the trauma of that event.
Patricia Gibson
The hon. Gentleman makes an excellent point, and I was just about to move on to that. I agree wholeheartedly with his insightful remarks.
It is simply not appropriate or desirable to set an early time frame as to when bereavement leave should be taken. Some parents may feel the need for leave only when they have had time—it can be months later—to deal with the enormity of the loss, and when the reality of the loss has sunk in.
Much of the discussion around this Bill seems to be predicated on the loss of a child after illness. Yes, it is true, far too many families are devastated by watching a child ravaged by some terrible, unforgiving disease against which they have so few resources to defend themselves, but let us not forget that children die in a variety of circumstances. The sudden and unexpected loss of a child is no less traumatic. When a parent loses their child in dramatic and sudden circumstances, they will have had no idea that the last time they saw their child would be the last time that they saw them alive. Then there is some horrific accident—perhaps a car accident or some other type of accident—and in a moment, families are destroyed by grief and the cruel random nature of events.
We need flexibility not just to allow parents to grieve in their own way in their own time, but, as the hon. Member for Charnwood (Edward Argar) said, to deal with a fatal accident inquiry, which is what would happen in Scotland, or a coroner’s inquiry in England. There may be a court case; perhaps even a trial. We have to consider all of those circumstances. There may be a significant gap between the loss of the child and the burial. There is a whole host of reasons why leave for bereaved parents must be flexible. If it is not, I fear that bereaved parents, whose employers—a small minority of them—are not as sympathetic as they might be, may face losing their jobs as well as losing their child. Bereaved parents must have the full protection of the law. I urge the Minister to consider this carefully. I am sure that he will, because he is a reasonable fellow.
Amendments 24 and 25 seek to recognise that the loss of a son or daughter is traumatic and life-changing no matter how old, or what age, that son or daughter may be. I think we all understand that it is against the natural order of events for any parent to bury their own child. We have the opportunity to recognise that in this Bill. I am sure that everyone in this House, and beyond it, would agree that losing a son or daughter aged 17 is a tragedy that should not and must not be treated differently from losing a son or daughter aged 19, 21, 23 or 25—we can pick whatever age we like.
Patrick Grady (Glasgow North) (SNP)
I pay tribute to the hard work that my hon. Friend has put into this Bill and the passion with which she is speaking. She has had very personal experiences that have led to her commitment to taking all this forward.
This amendment is important because the relationship between parents and their offspring is changing. Nowadays, children may go back to live with their parents at much later ages—indeed, well into their adult lives—due to a range of changing societal circumstances. Those wider societal changes make the amendment much more important and relevant to the modern world. I hope that the Minister will consider that.
Patricia Gibson
My hon. Friend makes an excellent point. We have to bear it in mind that the relationship between a parent and a child, even as the child grows up and becomes an adult themselves, is rather special. As he says, the traditional picture of young people growing up and moving out is no longer borne out in the statistics, for a variety of reasons. The relationship of parents and children living in the same house has to be recognised at any age, but also even when they are not living in the same house.
I understand why the Government have put this into the Bill, but drawing the line at the age of 18 when we are talking about the death of a child appears to me to be quite random and artificial. I do not think that such a distinction is appropriate in the context of the loss of a son or daughter. Loss is loss, whether or not someone’s son or daughter is their dependant. I ask the Minister and the whole House to keep it in mind that this Bill’s focus and starting point—we need only look at the title—is the bereaved parent, not the child. It is not about the circumstances of the age at which the child is lost—it is about protecting parents.
When a son or daughter is lost at an older age, the discussion—in relation to this Bill, at least—becomes more academic. As the hon. Member for Torbay pointed out, the older a parent is when they lose their son or daughter, the more likely it is that they will be retired anyway and will not need the protection of this Bill.
Kevin Foster
The hon. Lady is making some powerful points. She is right that this is about the impact on the person. As I said, my grandmother was into her late 70s and her son was 59, but his death still impacted her very strongly emotionally.
Patricia Gibson
I thank the hon. Gentleman for that intervention. I listened very carefully to the personal example that he gave us from his own family, which makes the point very well.
I ask the House to consider some other examples, such as that of a daughter aged 24 with a young child of her own whom she is perhaps bringing up on her own. As the Bill stands, if she were to die, her bereaved parents would not have any of the support that it could offer, even though there may be a thousand reasons why they will need bereavement leave—for example, the support that their grandchild might need if she had been bringing the child up on her own. I put to the House an interesting example that is completely, and sadly too often, within the realms of possibility. What about a son aged 25 who would not be covered by this Bill? Let us say that he is serving abroad in the British Army in a fragile region, and loses his life during a tour of duty. Do his parents not deserve the protection that the Bill offers because he happens to be 25 and not a dependant? I do not think that the intention of the Bill is really to exclude such parents, and that is why I have tabled these amendments.
I remind the House that this Bill was introduced in the first place because of the particularly unnatural order of circumstances in which someone buries their own child. I do not presume to judge whether one kind of grief is worse than another, but we can all agree that it goes against nature for someone to bury their own child. It does not necessarily go against nature to have to bury one’s husband or one’s wife. That, sadly, is in the normal scheme of things that we ultimately all have to face, but nobody—nobody—expects to bury their own child. A child is a parent’s investment—their stake in the future.
Antoinette Sandbach
I remember speaking at an event on child loss at which a solicitor who had acted in many, many cases where negligence had been involved told me that it was exceptionally rare for the parent to go back to the workplace because of the trauma. That would be less likely, as the hon. Lady says, if the parent had the ability to take some time out to deal with the grief. There is also action on the national bereavement care pathway that is at a pilot stage at the moment. These two things combined are likely to give parents a level of support that simply has not been there so far.
Patricia Gibson
The hon. Lady’s point is very well made, and I could not agree more. The initial input at the early stages through the level of support that can be offered in the workplace under the law is so important if we are going to help people to recover in any form from the trauma. It is better than having them parked out of the workplace, economically inactive and floundering alone in their grief with no support, as has been the case up until now. We lose too many marriages, and too many potential contributors to the workforce and society, because people do not get the support that they need.
The amendments I have tabled are extremely important. I will not press them to a vote, because a private Member’s Bill is such a fragile thing, and nobody wants to do anything that will take the entire matter off the table, but I urge the Minister to give those matters serious consideration and really reflect on including them in the Bill.
Michael Tomlinson
What a pleasure it is to follow the hon. Member for North Ayrshire and Arran (Patricia Gibson). She spoke with clarity and passion and from experience, and it is clear from other interventions that she has made a real difference to the Bill. I thank her for her words and for her work.
I pay tribute to my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) for his work in guiding the Bill through the House, as well as my hon. Friends the Members for Eddisbury (Antoinette Sandbach) and for Colchester (Will Quince). I have piloted a presentation Bill through the House, and I got it all the way to Third Reading before it fell at the last hurdle, so I completely appreciate the fragile china that is a private Member’s Bill. I well remember my hon. Friend the Member for Eddisbury speaking in the very first Adjournment debate that I attended as a new Member of Parliament, and what a powerful experience it was to sit close to her. I think that I appeared in a number of leaflets distributed by my hon. Friend the Member for Colchester, because I was sitting just behind him when he was making one of his powerful speeches. That had a double benefit: me hearing his wise words and the people of Colchester seeing my face in his leaflet.
I will come back to amendments 24 and 25 in due course, because the hon. Member for North Ayrshire and Arran struck a raw nerve, and her words were very prescient. My hon. Friend the Member for Torbay (Kevin Foster) has spoken in great detail to all his amendments, which I have signed, so I do not feel the need to bang on at length, but I want to address two or three areas.
First, amendments 1 and 2 relate to primary care givers and grandparents. While those amendments may not be necessary because of how the Bill is drafted—it is clear that the Secretary of State will lay regulations and that there will be a definition of a bereaved parent—it is important that we debate in this place at some length what we expect that definition to include. At a time when we need more foster carers and adoptive parents, it is right that we use the term “primary care giver”, rather than just “parent”.
Kevin Foster
If someone adopts a child, they become the parent as far as the law is concerned. There are also foster carers or those who have taken in a child in certain circumstances—for example, when there are potential child protection issues. We must be clear that this applies to the primary care giver, not necessarily only the person who is legally or biologically defined as the parent.
Michael Tomlinson
My hon. Friend is absolutely right, as he often is. That is why I was so delighted to add my name to his amendment.
It is the same with grandparents. My hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) led a powerful debate in Westminster Hall just last week on the important role that grandparents play in the family. I agree with him that we should give far more credit to the possibility of grandparents having care for and access to grandchildren. That is why I was delighted to sign amendment 2, which shows the important role that grandparents do and should play in the family.
Let me move on briefly to one or two other amendments before I get to my main point. On amendment 23, I completely agree with the hon. Member for North Ayrshire and Arran about the need for flexibility. That is fundamentally right. We heard that from the hon. Member for Lincoln (Karen Lee), who quite rightly said that we do not know how grief will strike any of us—we just do not know. Some people will want to go to work immediately the next day. To be—dare I say it?—a little bit stereotypical, it is probably more often the man who will want to go straight back to work, throw himself into it, try to forget what has happened and put it to the back of his mind and just get on with life. That is not always, but quite often, the case. Flexibility is key.
We have talked before about the fact that these are minimum standards. We are not talking about good employers. These provisions are there to safeguard employees who are not fortunate enough to work for a good employer. I completely agree with the hon. Member for North Ayrshire and Arran and the thrust of amendment 22 on the need for flexibility.
That brings me to my main point, which is on amendment 21, which I have tabled, and amendments 6, 24 and 25. It seems entirely arbitrary and faintly ridiculous that we are saying that these provisions only apply when the child is up to the age of 18. It is simply not right to say that a parent acts any differently if their child is 17, 18 or 19. My brother died aged 24, and I know that it did not affect my parents any less or any more because he was 24, rather than 17 or 18.
I am incredibly proud of my brother. He used to claim that he was the first Oxford student to have been president of both the Oxford Union and the Oxford University Conservative Association since my noble Friend Lord Hague of Richmond. I think he was wrong in that, but he was very proud to claim that he did that double. Sadly, he died out in Beirut. He was on a gap year in Lebanon—he was not fighting—and was learning Arabic. There were increased tensions between Israel and Hezbollah in Lebanon, but he died of a very mundane cause: carbon monoxide poisoning. It was such an innocent tragedy, and it just should not have happened.
My father had just retired the summer before, and I know that had he still been in work, he would have found it incredibly difficult to carry on and to turn up to work the next day. My mother was still working. She had the good fortune of having a brilliant employer. She was a teacher—many of my family are teachers—and her headmaster effectively gave her that term off, so she had from April to September, because there are the long summer holidays. Imagine a scenario where a parent does not have a decent employer and does not have the protection of this law, and arguably the protection of these amendments as well.
I maintain, as did the hon. Member for North Ayrshire and Arran and my hon. Friend the Member for Torbay, that extending this beyond the age of 18 would not widen the scope that much. We have heard evidence that it may increase the burden fivefold. It is probably my fault, but I have not seen that evidence, and I want to know what it is based on. My instinct is greatly that the older the child, the more likely it is that the parent will be in retirement and therefore that this will not widen the scope. I ask the Minister to consider and perhaps set out in some detail the evidence why the burden would be so much greater if the definition of “child” was opened up to beyond the age of 18.
The final set of amendments that I want to touch on is amendments 9 to 11, in relation to the regulations. My hon. Friend the Member for Torbay is right that the regulations laid before Parliament by the Secretary of State in due course should not be onerous in relation to notice periods. We are talking about parents who are in an incredibly difficult position, at an incredibly sensitive time. We do not want to be shutting off people who are entitled to this parental leave just because they happen to have failed to give some minor notice, because the letter has gone missing or the email was not sent. We need to be sensitive at a time of grief.
Kevin Foster
My hon. Friend is making a very good point. Does he agree that the bonus of his amendment 17 is that someone could easily provide notice in any way; it would not have to be a handwritten letter delivered in a particular way? As long as a reasonable effort has been made to get the notice to the employer about the circumstances, that should be enough, regardless of exactly which form that notice took.
Michael Tomlinson
My hon. Friend is absolutely right. He has the benefit of being a lawyer and will therefore have studied notice periods and all the ancient texts about contracts and contractual arrangements. It is just nonsense to say that this should be construed that tightly and with that much regulation. We need reasonable notice periods, while being perfectly understanding of the situation that these parents are in.
I strongly support the Bill. I congratulate once again my hon. Friends for their work, and I look forward to hearing the responses from the Minister and my hon. Friend the Member for Thirsk and Malton to the points I have raised.
Bill Esterson (Sefton Central) (Lab)
This is an important and sensitive issue. I am acutely aware that some Members who have been involved with the Bill throughout its passage have direct experience of losing a child, and I commend the bravery with which they have used their personal experiences to do good for others. In my family, my mum experienced the loss of my older sister who I never knew. She died some years before I was born, and for the rest of her life my mum was unable to speak about the loss of her daughter—I know that others have mentioned such experiences. It is something that has been present throughout my lifetime, unmentioned but always there in our family in the background. My sister’s name was Rebecca, which is also the name that my other sister gave to her daughter in her memory.
This Bill can only be a positive step. I am aware of the anxieties about it, but I am sure that none of us wish to do anything to scupper its progress. All those who are going through the ordeal and trauma of losing a child should at least be able to have some paid time away from their employment to deal with the practical elements of a bereavement, as well as the undoubted grief and pain associated with the death of a child.
Families, family relationships and caring relationships in our society are beautifully diverse, and it is right that legislation that offers entitlement to leave because of someone’s relationship with a child reflects that diversity. Often, those who are primary carers are not the biological mother or father of the child. They could be grandparents, other members of the extended family, or those who have opted to care for the child through formal means such as fostering, in a residential care home, or through adoption—my wife and I have gone through that experience and we have two adopted children.
In this country we—including under this Government—encourage foster carers to build loving relationships with children in their care, and rightly so. It is therefore only right and proper to make provision in law, so that people who are caring for a child, in whatever circumstances, are given paid leave if that child dies. That is in recognition of the fact that although those people may not be biological parents, they will often be parents, perhaps even legally, and they will form deep and meaningful relationships with the children in their care. They will suffer pain if they lose that child, and they will need time to make practical arrangements, including a funeral, and of course time to grieve.
How and when grief hits a parent can vary, as does the time at which practical arrangements associated with bereavement are needed. Arranging a funeral is just one of a huge list of responsibilities in the wake of the death of a child. There could be involvement with a coroner, and an ability to take the leave entitlement at varying points and not all at once would be welcome. People may need a day off to register the death, and they may need more time off weeks later because they are too low or upset to attend work. Grief does not come and go in a neat two-week period; it is something that stays with people, as I described with my mum’s experience. Although it is not practical to extend the leave entitlement to an undefined period, that entitlement should be valid for a sensibly long period of time—a year seems reasonable. It should also be possible to take the leave at more than one time.
Kevin Hollinrake
The hon. Gentleman is making good points and speaking very movingly. Does he accept that this is principally a signal to employers? There are many different circumstances involving this kind of tragedy, and everybody’s situation is different. Fundamentally, we are trying to ensure that all employers are generous, sympathetic and flexible in how they treat such situations, and that they provide leave and pay that is fair in all different circumstances. However, we cannot necessarily provide for all those things in legislation.
Bill Esterson
The hon. Gentleman is right and I commend him on promoting this Bill. I would like to pick up on some of the points he made about employment, self-employment, and the impact of the Bill on businesses. A good employer would certainly want to look after its staff—indeed, it is in its interests to do so. If an employer wants to retain staff, it should look after them, and that is also the right thing to do more generally. As we have heard, the vast majority of employers already do what is set out in the Bill in practice, and the Bill rightly ensures that all employers have a minimum set of standards to follow.
I take on board the point about whether this is the right time to consider broadening the provision to cover adult children, but we are talking about a relatively small number of people who would qualify for an entitlement to leave. We are talking about someone who loses a child, whether that child is under or over the age of 18—the hon. Member for Mid Dorset and North Poole (Michael Tomlinson) described losing his brother who was 24. It does not matter at what age this happens; it is an extremely painful situation for family members, and I understand that my hon. Friend the Member for North West Durham (Laura Pidcock) reminded the Committee of just that point. In the mind of a parent the pain never ceases, whatever the age of the child.
Although an older child might have a family of their own to help with practical arrangements, that is not always the case. Indeed, some older children are dependent on their parents—for example, parents may still care for a disabled adult. It is perfectly possible that a worker aged 60 could have a daughter or son who dies aged 30 or older, and it is reasonable for them to be afforded paid leave for all the reasons given for younger children. Lifting the age limit of what it means to be a child could be done either in the Bill or later, in recognition of just how exceptional these circumstances are.
Out of all the employment rights currently written into law, parental bereavement leave and pay is something that no one in the Chamber would ever want to apply for. Increasing leave entitlement from zero days and no pay to two weeks’ paid leave at a statutory minimum rate is a welcome step, although I am sure that many people who have lost a child would tell us that two weeks is nowhere near long enough, and perhaps a longer period of leave might be right. However, for purposes of the Bill we are discussing two weeks’ paid leave, which would be a significant and important step forward.
It is crucial that bereavement pay is paid immediately after the death of a child. A parent or carer should not have to worry about whether they can afford to take time off, and that should not be another thing added to the extreme stress that bereavement often creates. The statutory minimum rate is certainly better than nothing, although I fear, having had to take a hit on pay, that if pay is not given in full that may still exclude some from taking leave. Certainly the statutory minimum is better than nothing, and a step forward for those employers that currently do not provide such support.
Kevin Foster
Does the shadow Minister agree that this is about setting a floor, not a ceiling?
Bill Esterson
Yes, I agree. I believe that bereavement pay rightly has the support of the whole House. It is important that it is state funded and that HMRC is liable. That will minimise the risk of people not being paid—the point was made by my hon. Friend the Member for North West Durham in Committee—which is necessary because of the exceptional nature of the leave and the pay that needs to come with it. For those reasons, I also agree that there should not be a qualification period before a bereaved parent is qualified to receive the pay.
I want to pick up on some of the points raised by the hon. Member for Torbay (Kevin Foster). There is a challenge in ensuring that everybody benefits from the Bill, for example self-employed people who are currently not able to receive social security. This week the Federation of Small Businesses pointed out that it often takes two to three years to fully establish a business. The current rules on universal credit, which apply for only one year, are a very real concern in supporting self-employed people. There is a similar challenge here in supporting self-employed people through parental bereavement pay.
The flipside, of course, is the impact on employers. As someone who has run a small business, I can say from experience that when a key member of staff is not available it impacts the business. That is also true for larger businesses, but it is easier for them to make alternative arrangements. We need to recognise the impact on small businesses. This is about getting the balance right. It is only right that members of staff receive bereavement pay and that the statutory minimum is recoverable by the employer. The ongoing challenge will be how smaller firms in particular are supported when a key member of staff is absent.
My hon. Friend the Member for Lincoln (Karen Lee), from her own very sad experience as a nurse, demonstrated just how difficult it is for a member of staff who has suffered a bereavement to return to work and to carry out their normal duties. It is not straightforward to say that for a smaller firm staff should have to get back to work. Sometimes it is simply not possible for people, when they have suffered a bereavement, to return to work and carry out their duties. The challenge is very difficult for both the employer and a bereaved member of staff, and I hope the Minister will pick up on that point in his response to the debate. I do not say that there are any easy answers, but it is right that we are able to discuss the issue.
It was surprising to see the contradiction between some of the amendments tabled by the same Members. One asks that no notice be necessary for leave, while another asks that reasonable notice be given.
Michael Tomlinson
I am grateful to the hon. Gentleman for giving way. I remember serving on my very first Bill Committee when he was my equal and opposite. Is it not often the case that amendments are tabled to be probing? Alternatives are put forward that would be equally suitable and that is a perfectly logical and rational way to have a sensible debate.
Bill Esterson
If the hon. Gentleman thinks that by doing so he can waste time and delay the debate on the next Bill, and that that is a reasonable way to proceed, he is entitled to his opinion. I will give him this: it is logical to do so for the reason he outlines, but I sense from Government Members that my suspicions have been confirmed. I understand there is a reason to have a discussion on some of the points raised in the amendments, but I think it is a shame if they are being used to delay or scupper the next Bill. It is very important that we get the notice period right and I am sure the Minister will pick up on that in his response.
Michelle Donelan
I am delighted to have the opportunity to speak. My heart goes out to everybody who has been affected by a bereavement. I take my hat off to all Members who have contributed to the debate who have personally endured loss themselves. It is a very brave and remarkable thing to share with the House. Their experience will enable others to have a better experience.
I cannot imagine going through parental bereavement, but if my constituents or I were to do so, I would expect employers to be generous. The Bill is meant to ensure the minimum of what employers should give to their employees. It is important to note, however, that some microbusinesses or small businesses just do not have the capacity to pay staff for a period of leave, and a member of staff might not be able to afford unpaid leave, so the provision of a statutory element is a great step forward. It will give employees more freedom to take the time to grieve and to deal with their loss. It will also give employers the benefit of knowing that they will be able to facilitate that while keeping their business afloat. I think that that is the right thing to do. It is right for taxpayers to be contributing. We have heard today that the cost will be £3.2 million, and I would argue that this is a very good use of that money. I know that my constituents will be delighted as I have already received a number of pieces of correspondence from them echoing that view.
Antoinette Sandbach
For those who lose a child in childbirth or before birth—for example a stillbirth—there would have been a cost to the taxpayer, had the pregnancy gone as planned, through payments for maternity or paternity leave. I would therefore argue that although the Bill will involve a small additional cost for the taxpayer, the burden would have been borne by the taxpayer had there been a birth without complications. This measure is a very important way to support parents during an utterly tragic time in their lives.
Michelle Donelan
I completely agree. The state and the taxpayer have a responsibility to contribute. If someone is given the amount of time they need to recover, the long-term benefit for businesses and the economy will more than pay back any financial cost.
The Bill is a modern and compassionate measure. It is surprising that most countries do not already make such provision. The Lullaby Trust says that the UK will lead the way with this legislation, and I hope that other countries will follow suit, because this is the right thing to do.
James Cartlidge
I have been looking for information about international comparisons, and the reason why there is not much of it is because no one else does this. It is heartening to think that we will be leading the way, and that will be in no small part due to those Members on both sides of the House who have fought so hard for these changes.
Michelle Donelan
I completely echo my hon. Friend’s comments. I pay tribute to my hon. Friends the Members for Thirsk and Malton (Kevin Hollinrake) and for Colchester (Will Quince), as well as everybody else in the House who has contributed to the Bill, including all members of the Public Bill Committee. The Bill commands cross-party support, as well as support from the public, who will note today’s debate and see that Parliament sometimes really is in touch with people and their needs.
I echo comments about the fact that when employers are very generous towards their employees, it fosters a sense of loyalty and respect among them. I am sure that employers’ ability to offer this additional support will go some way towards developing that even further. Some of the amendments relate to the amount of leave that can be given. I honestly think that we can never quantify the length of time that it takes to get over a loss—in fact, we never really do get fully over a loss, be that of a child or anybody else who is significant in our lives—so I question whether the time being allowed is enough, although it is a good start. The whole point is that the Bill is supposed to set out the minimum, and we might revisit this and look to increase the time through secondary legislation.
We have discussed when people can take leave. There is a strong argument that an eight-week period is too arbitrary and very strict, because of such things as inquests, anniversaries and the dates when it really hits home. We must also remember that the Bill offers statutory pay, and people who only get that might not be able to afford to take time within those eight weeks. They might have to save up or make provision as a result of debts or the unexpected bills that people have to pay when someone dies. They might also not be ready for those losses. We cannot expect that somehow their financial burdens will suddenly disappear—that can take time.
We have heard an interesting discussion about the age of the child. It is important to remember that no matter how old someone’s child is, they are still that person’s child. Whether someone is 18 or 40, the loss is still huge, and Members have mentioned their personal experiences of that today. There is an argument for increasing the age from 18. We might not be able to do that in this Bill, but perhaps we can look at the position again. I echo the comment from my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) that the burden would probably not increase fivefold, because a lot of people will be retired by the time their child is lost. It is important to remember that not everybody will take up the offer, and some employers would offer their own scheme, so their employees would not be looking at the statutory benefit. We can explore this area more, and I think that further research and investigation needs to determine the cost to the taxpayer if the provision were extended.
Kevin Hollinrake
My hon. Friend is making some excellent points. As I am sure she is aware, there is a consultation on many of the issues to which she refers. I absolutely accept that we need to consider the eight-week window, for example, and that is one matter that is subject to consultation. I urge her and any Members who may have an interest in this, as well as constituents and charities, to submit evidence to the consultation, which I believe expires at 11.45 pm on 8 June.
Michelle Donelan
I thank my hon. Friend for his intervention and for clarifying that very specific time of 11.45 pm. I will urge all my constituents to contribute to the consultation, especially those who can bring their own experience to it.
Kevin Foster
Does my hon. Friend agree that the priority is that the provisions do not become a cliff edge, meaning that we do not have people’s 18th birthday as the absolute marker? Actually, when we read the Bill, we see that it could apply not only to someone under 18, as the parent of someone who dies on their 18th birthday may end up qualifying. However, the issue is making sure that this age is seen as a bare minimum, not a ceiling.
Michelle Donelan
I thank my hon. Friend for his contribution. He made that point earlier and he is right that we need a law that is compassionate yet workable so that we can interpret it in an orderly fashion and implement it for everybody.
The consultation will also look at the definition of a parent. That is needed in today’s society more than ever before, as we have different types of families and family dynamics. Sometimes people have more than one mother and more than one father, and we need to be flexible when defining parents and understanding of the different roles that people play as primary care givers.
Another important area is the self-employed, and I know that we will look at that as part of the Taylor review. I regularly speak in Parliament about making provision for the self-employed because although they are the lifeblood of our economy, they are too often forgotten and missed out from these types of benefits. Self-employed entrepreneurs are driving our economy forward, so it is important that we show just as much compassion and understanding to them.
I hope that this fantastic, modern, forward-thinking Bill will inspire other countries to follow suit. I hope not only that its provisions will set out the minimum that we expect from companies, but that we will revisit the Bill in the future and try to expand and build upon it.
Chris Philp (Croydon South) (Con)
It is a great pleasure to follow the hon. Member for Chippenham (Michelle Donelan) and to speak in such an important and moving debate. I start by congratulating my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) on piloting this private Member’s Bill through the Commons—I hope it will conclude today—with such skill and deftness, which we have come to expect from him.
I also pay tribute to members of the Bill Committee, who clearly improved the Bill with such diligence and thoroughness. I gather from comments that have been made today that the hon. Member for North Ayrshire and Arran (Patricia Gibson) served on it, along with my hon. Friends the Members for Eddisbury (Antoinette Sandbach), for Torbay (Kevin Foster), and for Colchester (Will Quince). I apologise if I have missed any Committee members out—[Interruption.] How could I possibly forget my hon. Friend the Member for Charnwood (Edward Argar), who is certainly nothing if not unforgettable. I thank and congratulate those hon. Members for their work, and my hon. Friend the Member for Torbay has clearly given this matter extremely careful and diligent thought in tabling so many detailed amendments.
Before speaking to some of those amendments, I observe that the measures are extremely welcome. They strengthen protections and rights. One occasionally hears people claim, particularly as we think about leaving the European Union, that there may be some sort of race to the bottom on regulation and that we somehow plan to have less stringent employment rights in this country than in the rest of Europe. This Bill proves conclusively that that is not the case, and that this Parliament is willing and eager to legislate to strengthen employment rights and the rights that our citizens enjoy in ways that go far beyond anything contemplated by European Union legislation. This Bill is evidence that we are doing more, not less, when it comes to employment rights and other rights.
I turn to the first group of amendments—amendments 1, 2, 12 and 14—tabled by my hon. Friend. Amendment 1 would extend the definition of parents in this context beyond simply biological parents to include people who are acting as the deceased child’s principal guardian. Amendment 2 would include grandparents when they act as the child’s principal guardian. Those amendments are absolutely right in spirit. I am interested to hear whether the Minister thinks that these things need to be in the Bill—these amendments would do that—or whether they can be dealt with in regulations. Whichever approach is adopted, the spirit and thrust of my hon. Friend’s amendments are absolutely right. It is clear that whoever is caring for the child—the biological parent, a grandparent or a foster parent—they have an equally close connection to the child and would suffer the same level of anguish as a biological parent would. I therefore agree very strongly and wholeheartedly with the amendments that my hon. Friend has wisely tabled.
Kevin Foster
I appreciate the comments that my hon. Friend has just made about the amendments. Does he agree that we must focus on not ending up with a scenario in which a primary care giver—someone who has been a parent in almost all senses of the word—has no access to leave, while, in theory, an estranged biological parent could suddenly have that access? We must reflect the impact on the person who has been doing the parenting.
Chris Philp
My hon. Friend has put it extremely well, far better than I did. It is, of course, right for us to focus on the primary carer, whoever that may be.
Amendment 21, tabled by my hon. Friends the Members for Torbay and for Mid Dorset and North Poole (Michael Tomlinson), would extend the definition of a child to a son or daughter beyond 18. The hon. Member for North Ayrshire and Arran has tabled similar amendments—24 and 25. I must say that I was undecided on the merits of the amendments, but, having heard what was said by those Members—as well as the hon. Member for Sefton Central (Bill Esterson)—I can see the force of the argument.
I had initially thought that a line must be drawn somewhere when it comes to these rights, and that if a child of any age is to be included, it might equally be suggested that the same should apply to a deceased sibling, or, indeed, a deceased parent or spouse. The emotional attachments to those other relations are, in many cases, just as strong as the other attachments that we are discussing. Wherever the line is drawn, there will be relations just on the other side of it, with equally strong attachments, to whom the provisions do not apply. The fact that there is a line somewhere does not suggest that there should be no line at all; the question is simply where to draw it. However, I was powerfully moved, in particular, by what my hon. Friend the Member for Mid Dorset and North Poole—who is not currently in the Chamber—said about his brother. I appreciate that there are very powerful arguments on both sides.
James Cartlidge (South Suffolk) (Con)
My hon. Friend is making a very good speech. Some powerful arguments have been made on both sides about the 18 threshold. Is my hon. Friend at least reassured that, as I understand it, parents of those over 18 would be covered by the “reasonableness” provisions?
Chris Philp
I see that my hon. Friend the Member for Thirsk and Malton is indicating his agreement with my hon. Friend’s point, and that is certainly good enough for me. I do take comfort from the fact that the “reasonableness” provisions would apply for children over 18. However, it is a difficult question, and we have heard some powerful commentary on it from Members on both sides of the House.
As my hon. Friend the Member for Colchester has just returned to the Chamber, I want to comment on an amendment that he tabled in Committee, which was passed unanimously and which extended the Bill’s provisions to stillborn children born after 24 weeks of gestation. I know that my hon. Friend has had a very tragic personal experience of that. I strongly welcome and support that extension, and I congratulate him on the amendment, but let me observe in passing—to the Minister in particular—that, perhaps not in this Bill but on some future occasion, we might also consider entitlement to parental leave for the parents of very premature children who are lucky enough to survive.
I am one of those parents. My twins were born after 25 weeks and one day, which is extraordinarily premature. They were very lucky—blessed, in fact—to survive. I remember that night in the intensive care unit, where, as the Minister can imagine, there were so many parents who were extremely distressed, whatever the precise circumstances that their children were in. I ask the Minister to consider providing for extra parental leave in the case of very premature births, although this Bill may not be the right place to do it, and it may be too late to introduce amendments. The experience of parents with children in neonatal care units after 20-something weeks of gestation is very difficult. However, the amendment tabled by my hon. Friend the Member for Colchester at least improves the Bill in that regard.
Amendment 7, also tabled by my hon. Friend the Member for Torbay—he has clearly been working extremely hard—makes it clear that, while the employee could receive additional pay from the employer above and beyond the statutory minimum, only the statutory minimum would be reimbursed by the taxpayer. My hon. Friend pointed out in interventions on the hon. Member for Sefton Central that the statutory minimum is just that: it is a floor, not a ceiling. Although that is the extent of taxpayer support, I am sure that Members on both sides of the House would strongly encourage employers to reimburse employees at their full rate of employment during periods of compassionate leave, for that or for any other reason. I hope that any employers who are listening to the debate or reading the report of it will take careful note of that exhortation. As one who set up and ran businesses for 15 years before being elected, I know that my businesses would always have taken such action without question.
Kevin Foster
I can confirm that my hon. Friend’s interpretation is correct. I wanted to make clear what the statutory minimum was, but this is, of course, about a floor and not a ceiling. Employers would be welcome to go further: the amendment would not change that.
Chris Philp
I am grateful to my hon. Friend for his additional clarification. We are in complete agreement.
Speaking of complete agreement, I want to make one more point about the amendments. It relates to amendment 9, also tabled by my hon. Friend the Member for Torbay, assisted on this occasion by my hon. Friend the Member for Mid Dorset and North Poole. The amendment proposes the introduction of a test of reasonableness in relation to notice periods, to which a number of Members have referred.
Clearly, in circumstances of probably unexpected bereavement, requiring parents to comply with potentially quite prescriptive and very detailed notice periods would not be appropriate. As other Members have said, it would present the risk that a bereaved parent might inadvertently fall foul of one of those notice periods. I think that there is a strong case for a general requirement—either in the Bill, which is the aim of the amendment, or in subsequent regulations—for employers to act reasonably in this context. Such a catch-all would, I think, provide a general level of protection and reassurance for bereaved parents.
I know that other Members want to speak. Again, I congratulate my hon. Friend the Member for Thirsk and Malton: I am delighted to be here today to support this excellent Bill.
Robert Courts (Witney) (Con)
It is a great pleasure to speak in the debate. I have been greatly moved by what has been said by Members in all parts of the House. Others may agree that the House is shown at its best when it works on a cross-party basis—when it listens to Members who speak about their individual experiences and who speak with passion and knowledge. I salute all those who have done so today: their speeches have made a great impact on me and, I am sure, on my constituents and the whole country.
We are debating a very important piece of legislation, but perhaps one of its effects will lie outside legislation. As anyone who has experienced bereavement will realise, one of the initial feelings is isolation—the sense that friends or family are not coming to see them or a feeling of distance from their employers. I hope that those who are watching the debate or who read the report later realise how much they are not alone. They are listened to, and many Members on both sides of the House have their interests firmly at heart and are doing everything they can to help.
I warmly welcome the Bill, and I pay tribute—as others have, but it bears repetition—to all those who have argued this case so compassionately and for so long. My hon. Friend the Member for Colchester (Will Quince) has been one of the leading lights, and he introduced a version of the Bill that sadly did not make it past the general election. The Government have picked the issue up and support the Bill—it was in the Conservative party’s manifesto—and I thank them for doing so. My hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) has, in the words of my hon. Friend the Member for Colchester, picked up the baton—a nice way to put it. It is important to remember that this is very much a team effort, and several Members supported it in the recent Westminster Hall debate and the baby loss awareness debate some months ago, in which I was deeply honoured to speak. I thank everyone involved enormously, because many people in West Oxfordshire will be feeling grief and loss but be heartened to see that so many people in this House are seeking to help them.
I am also pleased that, while some other countries have similar rights, we will be world leaders in introducing this level of rights and protection. That makes it sound a little too inhuman—it will be a level of reassurance and human compassion that will be world leading. I am proud to be able to make a few brief comments in support of the Bill and on the amendments tabled by hon. Members on both sides of the House to attempt to improve the Bill, which is of course to be highly commended.
Amendments 1, 2, 12 and 14 deal with definitions and whether we should be dealing solely with literal parents. I do not think that we should be prescriptive and that only biological parents should be the beneficiaries of assistance under this legislation. Clearly, as we will all know from our constituents, many people can be involved in caring for a child: the biological parents or foster parents, or others who it is difficult to foresee in legislation but who may be deeply involved in a child’s upbringing and be devastated by its loss. We should be as flexible as we can to ensure that people, however they are connected—whether they have a caring responsibility in a formal sense or in more of a moral sense—are equally protected and assisted by this legislation.
We will need some clarity, and the Government are consulting on this and listening carefully. It is a drafting issue and we will have to ensure that the Bill is phrased to provide breadth and width, but also clarity. We must make it clear in passing the legislation that we are seeking to help those who are bereaved having cared for a child and that we do not want to be prescriptive about particular classes of carer.
Kevin Foster
Does my hon. Friend agree that the firm message that we want to send to the Minister is that the definition of “parent” is about parenting, not biology and blood lines?
Robert Courts
As so often, my hon. Friend makes the point that I was seeking to make, but more succinctly and eloquently. He is right: it is parenting, not being a biological parent, that I am seeking to stress, and I am sure we all agree on that.
Amendments 3, 5, 22 and 23 deal with when leave can be taken and for how long. I am humbled to speak in this debate, as I have heard so many moving stories from those who understand only too well the nature of grief. I hesitate to express my thoughts, but I do so with the intention of being as helpful as possible. Grief is not a predictable phenomenon. People cannot know how long they will grieve for or what form their grief will take. Perhaps most strikingly, they have no way of knowing when it will strike. It may be immediate. However, as we have heard, people often find different coping methods. They may decide to carry on. Going back to work and immersing themselves in the hubbub of everyday life makes them feel better for some time, but sooner or later grief hits and they may then need leave from their employer.
Mrs Anne-Marie Trevelyan (Berwick-upon-Tweed) (Con)
I commend those who have brought this Bill forward and those who have suffered personal loss. Among the friends of mine who have suffered such a loss, the line has always been, “It’s just wrong to have to bury a child; nature didn’t intend it that way.” Therefore, regardless of whether we are 80 years old and burying a child or 30 and burying a young infant, it is the wrong way around and the effects cannot be overestimated, so we must offer support in all cases.
Robert Courts
My hon. Friend powerfully makes the very point I want to make. For any human being, burying a child is profoundly distressing, as it goes against our very nature as humans. We therefore should not even countenance saying that people should not be able to avail themselves of assistance just because their child is older; that would go against what we are trying to achieve.
While that is my wish, however, I listened carefully to the interventions made by my hon. Friend the Member for Colchester, and my overriding desire is that this legislation gets on to the statute book. If it just sets a minimum level, we do not have to say that that is it, the story is closed and we can never amend it again. We can come back to it: we can either amend this legislation through regulations or come back and debate it again, and campaign, as we are so used to doing, to ensure that we provide a higher standard. I would not like any changes to be made now that mean either the Government are unable to support the Bill or employers feel that it is too onerous on them, and as a result we do not have these much-needed protections. It must be our foremost concern today to put these protections in place.
The last group on which I want to comment is those that address notice periods: amendments, 9, 10, 11, 15 and 17. I think that an element of practicality is intended here, and I would certainly not wish to see anything in this Bill that requires people, at a time of profound distress, when their world has been turned upside down and they cannot think straight, to have to worry about filling in forms or jumping through hoops or having to comply with something, which, as my hon. Friend the Member for Croydon South (Chris Philp) said, might mean they inadvertently fall foul of a regulation.
We are seeking to provide legislation that is compassionate and sensitive. The requirement for any notice period to be given must be very light touch and amount to nothing more than people simply telling the employer that this tragedy has occurred and they would like to go off for a certain period. That is reasonable to enable the employer to provide some cover for the job they are undertaking at that time, but I certainly would not want to see requirements put in place—perhaps involving training—and people having to worry about whether they have complied with them. That would be running completely counter to what we are trying to achieve here.
Kevin Foster
Does my hon. Friend agree that that is the benefit of saying the notice must be reasonable or, as amendment 17 from my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) proposes, giving as much scope as possible about how this notice can be provided, so that there is not a written form that people must be aware of and fill in?
Robert Courts
My hon. Friend rightly draws my attention to amendment 17, and the fact that I have not referred to it directly is perhaps a drawback of dealing with the amendments in groups in the way that I have done. The amendment says:
“Employers must accept notice given in writing, face to face, by telephone or through a third party on behalf of the bereaved parent.”
Therefore, it makes clear that a low level of notification is required. I think that is along the right lines, and I ask the Minister to consider it and respond.
Similarly, in providing evidence, people should not be required to find and supply to an employer a death certificate or a coroner’s report, because that is the very last thing they would want to deal with at such a time. I appreciate that some people might use legislation to accrue a benefit to which they were not entitled, but my mind boggles somewhat at that happening in such circumstances, and legislation already exists to deal with anyone who takes such an extreme course of action. My overriding concern is to ensure that bereaved parents and carers are looked after and helped. That must be what we are seeking to do here, rather than setting up bureaucratic hurdles for them at a time when they really do not require them.
I am grateful to the House for listening to me. Suffice it to say that I support the Bill, which, although overdue, is very welcome. I wish it a speedy passage, and I congratulate once again those who have taken the standard forward and taken the Bill through the House. I commend all those who have spoken with such total bravery today. It is not easy for them to stand up in public and explain things that are so personal, but the Bill shows the enormous impact that they can have when they do so. I salute all hon. Members who have done that today and on other occasions.
Nigel Huddleston (Mid Worcestershire) (Con)
It is a pleasure, as always, to follow my always eloquent hon. Friend the Member for Witney (Robert Courts). I rise to speak briefly to amendments 2, 3, 5, 6, and 22 to 24. I should like to thank the hon. Member for North Ayrshire and Arran (Patricia Gibson) and my hon. Friend the Member for Torbay (Kevin Foster) for being so diligent in tabling so many amendments that are clearly intended to improve the Bill. As others have said, however, we need to be careful not to let the perfect be the enemy of the good, and it is the clear consensus of the whole House, and indeed the country, that we have to get the Bill passed.
I thank my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) for bringing forward the Bill in such a considered manner, and for working so closely across the House and with the Government to ensure that we really make this happen. Like others, I also want to pay a sincere tribute to my hon. Friends the Members for Eddisbury (Antoinette Sandbach) and for Colchester (Will Quince), who have championed this cause, and related causes, for so long and with such eloquence and passion. Their truly heartfelt speeches have shown this House at its best, today and on many occasions over the past few years.
I have a few constituents—I am glad to say that the number is relatively small—who have had direct experience of child bereavement. However, a large number of my constituents have contacted me to say that they support the Bill. Although a relatively small number of people have experienced the pain of losing their child, everyone can sympathise with the pain and anguish that such an occurrence brings. The loss of a child is an unbearable experience—perhaps the worst form of bereavement that a person can suffer—and we must ensure that parents are supported throughout what must be one of the hardest periods in their lives.
I want to talk about the numbers, because they are important not only for the amendments but for the overall Bill. Sadly, thousands of parents each year suffer the devastation of losing a child. The Office for National Statistics data shows that 4,300 children under the age of 18 died in Great Britain in 2016, affecting 8,000 employed parents. However, using that data and taking into consideration the assumption that some separated parents may have new partners with direct parental responsibility, the Bill’s impact assessment estimates that as many as 11,500 people will have been directly affected in 2016. So we are talking about more than 100,000 parents or carers being impacted over the course of a decade. That is not an insignificant number, and we need to consider that carefully.
There are three groups or areas that I wish to speak to today. The first, covered in particular by amendment 2, deals with extending the Bill to cover not only parents but grandparents and others with caring responsibilities. This is an important aspect, as my hon. Friends the Members for Croydon South (Chris Philp) and for Chippenham (Michelle Donelan) have mentioned. We need to think carefully not only about parents but about all those who have parenting responsibilities in the modern age. The situation is not the same as it was 30 or 40 years ago. We need to think particularly about grandparents, as my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) has said. Grandparents are a group of people whom I champion, as I believe that they are underserved by legislation in this country today. It is important that we show them proper recognition in law.
The second grouping of amendments relates to the period in which the leave can be taken. This is addressed in amendments 3, 5, 22 and 23. The Bill allows for a minimum of two weeks’ bereavement leave for eligible employees, but how those two weeks may be taken—all in one go, for example, or perhaps in various non-consecutive blocks—has been left undecided. I have great sympathy for the sentiment behind amendment 22, which calls for flexibility on when entitled leave can be taken. Grief affects each of us differently, and while it may suit some bereaved parents to take two weeks off in one go, that will not be true for everyone. After all, the Bill intends to provide additional support to parents mourning a loss, and to be truly beneficial there should be some flexibility in the entitlement so that parents can use it to best suit their individual needs.
David Linden
From evidence given to us by CLIC Sargent, we know that the NHS provides cancer treatment for young people up to the age of 25, so there is a bit of inconsistency in Government policy, and hon. Members should be mindful of that.
Nigel Huddleston
The hon. Gentleman makes a valid point. We need to factor in other considerations, which is why I said “if” we need to include a cut-off point. One argument in favour of restricting the age in the definition of a child is that the financial burden on the Exchequer may be considerably greater if we extended the definition beyond the age of 18. My hon. Friend the Member for Croydon South asked about siblings, and there is some logic to being careful about how far we extend the provisions. However, the Government will spend over £800 billion this year, and the estimated cost to the Exchequer of this legislation is around £3 million. We must be careful about saying, “That’s a drop in the ocean compared with total Government expenditure,” but it is true in this particular case.
If we do extend the definition to beyond 18, how much more would it cost? Five times more has been mentioned but, again, that means £15 million. Spending £15 million out of some £800 billion of Government expenditure to do something compassionate that is so widely supported is worthy of further consideration, so I ask the Minister to examine that carefully. I understand that the matter is subject to further consultation, so I encourage people to contribute to that debate.
As I said at the beginning, this is one of those topics that shows the House at its best. I will not delay proceedings further by repeating the comments made by others, but I will encourage those who have tabled amendments not to push them to a vote, as I think they have indicated, if that might jeopardise the overall vote.
I completely support the Bill. I have never had to go through, and hope never to have to go through, the anguish and pain of losing a child, as far too many of my colleagues and constituents have. It is right that we pass this law today to show that we stand with them, and with anybody who suffers this huge pain in the future, and to show that the Government are on their side.
James Cartlidge
It is a pleasure to follow my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston), who made an excellent speech. I join him and others in congratulating my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) on introducing the Bill.
While this has been a cross-party effort—I congratulate everyone who has contributed—I am particularly proud to be part of a cohort of heart-on-sleeve-wearing compassionate Conservatives who have done their constituents and their country proud by delivering change in an area that really matters to people. The cost of the Bill is tiny, as we have heard, but the cost to people who experience bereavement is immeasurable. I hope that I never experience such bereavement. Indeed, I regard myself as incredibly fortunate to have had four healthy children.
I rise to speak to amendments 22 and 8, and briefly to amendments 21, 24 and 25 on the cut-off point. On amendment 22, the hon. Member for North Ayrshire and Arran (Patricia Gibson) and my hon. Friend the Member for Torbay (Kevin Foster) spoke extremely well about the way in which the period of leave will be taken and the need for flexibility.
I have four children, and I was a self-employed company owner. When I had the first two, the company was basically just me, so I did not really take leave. When I had Nos. 3 and 4, I was fortunate that the company had a few more staff, so I was able to take proper leave— Nos. 3 and 4 came at the same time, meaning there was somewhat more need for my support. That period soon ran into the selection process for my constituency and a lot of time pressure, so I was pleased to be in that position, but of course many people are not.
The consultation, entirely reasonably and rationally, says that in considering the structure of the time block for this leave, we will consider the existing arrangements for maternity and paternity leave. Whenever we legislate, it is entirely rational that we look at existing measures so that we do not reinvent the wheel. Page 13 of the consultation says:
“The Bill has mirrored existing provisions for family related leave and pay rights where possible and, in particular, Paternity Leave and Pay. But where the detail is left to be set in regulations, the regulations could be different to those for existing rights.”
This is the key point:
“Paternity Leave and Pay cannot be taken in separate blocks of a week: a father or partner is merely able to choose whether to take just one or both of the weeks available.”
I have been particularly moved by the arguments made today that underline why bereavement leave is very different from paternity leave, and why the circumstances could require extra flexibility.
The hon. Member for North Ayrshire and Arran gave good examples of why we might want flexibility. She talked about court hearings—I think there is a different phrase for inquiries in Scotland—and the fact that more flexibility might be needed in such circumstances. It is important that what we do in this place mirrors what happens in the real world.
In contrast, when I think back to being a new dad, it seems rational that paternity leave is taken in a single block, ideally when the child is born, when help is most needed. With my first child—my daughter—I well remember the intensity of those early days, when I prayed every hour that the baby would at some point sleep through the night. There is an early period of intensity that a parent sincerely hopes will reduce, which is why there is sense in taking the block together. That is a rational position. We have heard powerful examples from hon. Members about the need for flexibility on bereavement leave, however, so I hope that the Minister will respond to them.
Kevin Hollinrake
My hon. Friend is making some excellent points. It might not seem that we have best reason for taking this approach; as he rightly points out, the flexibility required in the circumstances of bereavement is entirely different from that needed in the case of paternity leave. However, the difficulty we are dealing with relates to processes in Her Majesty’s Revenue and Customs and its ability to deal with statutory pay. The bureaucracies that support the decisions we make in this House should not necessarily drive our thinking, but they are a consideration to which we must pay due regard.
James Cartlidge
I thank my hon. Friend for clarifying the point. Indeed, I did note that from the consultation document, which referred to that fact that the benefit itself limits the flexibility. We all know how difficult it is to change systems, and we can well imagine the difficulty in the social security system, with employer software and so on, in giving out the benefit on the basis of sporadic days. However, there would still be merit in someone having the ability to take unpaid one-off days. I think most people would rather have that freedom, even if it is not possible for it to be covered by the statutory pay they would receive because of the limitations of HMRC’s and other systems.
Kevin Hollinrake
My hon. Friend makes a good point. Underpinning all this are the general principles and our expectation that employers would be understanding, sympathetic and flexible in how they deal with this situation. We are setting out the minimum requirements, but we would expect employers to show that compassion and flexibility when dealing with how people take the leave.
James Cartlidge
I am grateful for that intervention and do agree with it. If we were to have the single block but there was an exceptional reason to grant an additional day—or even that—at a future point, most employers would be prepared to do so. In most cases, employers will act reasonably as long as a reasonable request is made.
Amendment 8, which was tabled by my hon. Friends the Members for Torbay and for Mid Dorset and North Poole (Michael Tomlinson), is important as it touches on defining the employment status that someone must have to be eligible for these new rights. Proposed new section 80EB (1)(c) of the Employment Rights Act 1996 states:
“an employee who is absent on leave under that section is entitled to return from leave to a job of a kind prescribed by regulations”.
That prescription therefore relates to the type of employment, with the word “employee” being crucial. The issues arising from the Taylor review and the changing nature of employment have already been mentioned, and we have to discuss the extent to which these rights would be available to employees in those newly growing, ambiguous areas.
My hon. Friend the Member for Chippenham (Michelle Donelan) referred to the self-employed, but of course we are not talking about a homogenous group. Before the general election, when I served on the Work and Pensions Committee, we held an inquiry on the gig economy—this growing army of the self-employed. We heard evidence about cases in which people are, to all intents and purposes, employees. On this amendment, my question for the Minister is: in defining jobs and defining people as an “employee”, are we able to award these benefits—these rights—to those defined now as “workers”? I refer to those people in between employment and self-employment. Are we able to do that, or do we need to introduce separate regulations to do so?
That is an important point, so it is handy that I have a copy of the Taylor review. The Bill amends the primary piece of legislation to which it relates—the 1996 Act—and we are dealing with the important distinction between an employee and a worker. I remind the House that the 1996 Act states that an
“‘employee’ means an individual who has entered into or works under…a contract of employment.”
I will not go into the detailed definition in the report, but a worker is someone who has some form of contract.
Antoinette Sandbach
We heard similar evidence on the Business, Energy and Industrial Strategy Committee, and it is a real concern.
James Cartlidge
It is a real concern. This whole subject of the changing nature of work is fundamental, and it matters because it gives rise to this question: if someone has been “working” for one of these companies—possibly as a gig economy worker, but certainly in that grey area between employment and self-employment—and they suffer the terrible tragedy of bereavement, are we really saying, particularly if they have been working primarily for one company for many months, that they should not enjoy this right? That is a key question; it is what the whole Taylor review boils down to.
When we talk about the nature of someone’s work, most of us have an instinctive understanding of what employment looks like. The review puts it well:
“Ultimately, if it looks and feels like employment, it should have the status and protection of employment.”
In other words, those people should have these sorts of rights. That is incredibly important.
I shall not stray from the subject, Madam Deputy Speaker, but there are a whole load of issues, including auto-enrolment, relating to how we bring greater security to those who are caught up in a flexible and dynamic workforce in which the need for flexibility can sometimes mean that people are exploited. To all intents and purposes, they have given their employment to one firm, yet they have not been given the same security and rights that they would expect for having reduced their own freedoms. That is the exchange that underpins an employment contract.
I hope that my hon. Friend the Member for Thirsk and Malton will be able to give further information on the extent to which the Bill will benefit those in the specific category of worker. They are not the normal self-employed—if someone starts a business, they would not expect to have the same rights—but the 1.3 million people whom we know of in the gig economy. If they have offered their work on a pseudo-employed basis for many months and then suffer bereavement, my view is that there is a strong case for suggesting that they should have the same rights as the employed.
Finally, on the amendments relating to the cut-off point, which is a difficult issue, the moral argument that was set out very well by the hon. Member for North Ayrshire and Arran is very hard to argue with. Who knows precisely what the cost would be of her amendments and those tabled by my hon. Friend the Member for Torbay on the cut-off point—my hon. Friend the Member for Mid Worcestershire made an estimate, and I am sure it would not be many, many millions—but I want to understand the extent to which those who would suffer from the cut-off point because their child was over 18 would still be protected under the provisions on reasonableness. After I intervened on my hon. Friend the Member for Croydon South (Chris Philp), he confirmed that his understanding was that they would be protected, as did my hon. Friend the Member for Thirsk and Malton, but I would be grateful if the Minister would confirm that someone would still be protected, even if their child was above the cut-off point, because that is very important.
In conclusion, this is a powerful Bill, and our proceedings are a classic example of Parliament coming together to deliver changes that appear small in terms of the legislation and the cost, but that will be enormously beneficial to those struck by a pain that is, for me, beyond understanding. I have nothing but the greatest sympathy for those who suffer bereavement. We should all be proud of this work. I hope that the Bill proceeds and encourage everyone in the House to support it.
Edward Argar
It is a pleasure to speak at this stage of the Bill’s progress. I very much enjoyed my time on the Bill Committee, and pay tribute to all my colleagues who served on that Committee. Indeed, it was also a pleasure and a privilege to speak on Second Reading of this Bill.
As many hon. and right hon. Members have said during the passage of this Bill, we are, to a degree, righting a wrong. Although many businesses do the right thing, as we would wish them to do, in looking after and supporting bereaved parents in the dreadful circumstances of having lost a child, there are some, as we have also heard, who have not done that. What this Bill does is not only to send a very clear message to all businesses but to provide a basic level of protection.
I pay tribute to my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake). I think that this is his second private Member’s Bill and, like his previous one, it stands a very good chance of success. He is always someone to have in one’s corner when taking a cause through the private Member’s Bill process. I also pay tribute to my hon. Friends the Members for Eddisbury (Antoinette Sandbach), for Colchester (Will Quince), and, although she is not in her place today, my hon. Friend the Member for Banbury (Victoria Prentis) and, of course, the hon. Member for North Ayrshire and Arran (Patricia Gibson), all of whom have spoken extremely movingly, at different points, about their experiences and why this piece of legislation is so hugely important.
Let me turn to the specific amendments before us today. I can understand why each of them is hugely important, but we must also be careful that we do not try to make the perfect the enemy of the good. The key must be to get this legislation through the House. Amendments 22 and 23, tabled by the hon. Member for North Ayrshire and Arran, are essentially about flexibility, which was also highlighted in the amendments tabled by my hon. Friend the Member for Torbay (Kevin Foster). She makes an extremely valid point. If I recall, there are organisations, such as Together for Short Lives and Cruse Bereavement Care, which have all made the same point about the need for flexibility. Individuals and families cope and grieve in different ways, at different paces and at different times. Some will want to go straight back to work, while others will want time to grieve quietly. Equally, as we have touched on in previous comments, if there is an inquest or if the death has been sudden and unexpected that may well also increase the need for flexibility, because no one will know when they may need that time off.
Although I entirely take on board what the hon. Member for North Ayrshire and Arran said—I will be interested to hear whether the Minister will allude to this—it may be that the most effective way of addressing the points on flexibility is to feed them into the consultation, which is due later this year, and to use that as a mechanism to address them, rather than necessarily putting them in the Bill. I am entirely sympathetic to the points that she makes. I would be grateful if the Minister could say what he thinks is the best method by which to achieve that outcome.
We then turn to amendments 24 and 25, which were mentioned by my hon. Friend the Member for South Suffolk (James Cartlidge), about where the cut-off point should be. He was absolutely right in what he said. The hon. Lady made an extremely powerful moral case for her amendments. My hon. Friends the Members for Thirsk and Malton and for Croydon South (Chris Philp) were clear that the reasonableness test would address the issue, but, again, I would welcome clarity from the Minister on his interpretation of that.
Finally, let me address amendments 1, 2, 12, 14 and others on the definition of what a parent is in the context of this Bill. I argue that that is one of the hardest parts of getting this Bill right—how do we define the scope of what is a parent. There will be biological parents, and there will be the partners of someone who is not the biological parent, but still feels the bereavement as acutely. I believe that, in Committee, my hon. Friend the Member for Thirsk and Malton mentioned the case of Mandy Ruston who talked on Facebook about the fact that, while she was able to get support from her employer, her partner, a non-biological parent, was told by his employers to return to work.
It is extremely difficult, particularly in the modern age, for us to define who is a parent. Perhaps, rather than looking at a legalistic or biological definition, we should look at it in terms of caring responsibilities. The challenge is to try to find a legal definition for the purposes of legislation. This Bill goes a very long way towards doing exactly that. It is not perfect, but I have yet to see, in my short time in this place, any legislation that I believe is entirely perfect as it passes through this House, or indeed as it emerges at the other end. There are always things that can be tweaked to reflect the changing nature of society or changing circumstances as the world moves on.
Throughout the passage of this Bill, we have heard a number of extremely moving, thoughtful speeches and contributions. As Members on both sides of the House have said, all those contributions have been made in a spirit designed to allow the Bill to progress and to work together to come up with the best legislation we can. With that in mind, the key for all of us must be to get the Bill on to the statute book. Where there are issues that still need to be ironed out, we should not shy away from that and we should continue to look at them, but the key must be not to let that slow down or impede the passage of the Bill. We should get the Bill on to the statute book and then we can, as necessary, refine and tweak by regulation or through the consultation.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Richard Harrington)
I thank colleagues on both sides of the House for the moving speeches that they have made. As you may know, Madam Deputy Speaker, I usually try to start my addresses to this House with a quip or a humorous comment, but I am afraid that today is not an occasion for that. This is a very serious Bill. I am the third Minister to have had the honour of working on it. That is not because no one can be bothered with it, but because it is very important. Every human being, let alone every Member of Parliament, will have every sympathy with it.
Colleagues have made it clear that the Government fully support the Bill, and I reaffirm once again that it very much has our backing. Despite the public reading, quite rightly, of the system of opposition—some say that it is opposition for opposition’s sake and some say that people are being partisan—this is a very good occasion when the reality is not that.
I was in business for most of my adult life before first coming to this place, and I did not really think about this issue. When I first started to consider the Bill, I remembered an occasion when it was brought to my attention that someone had had a bereavement. I just said, not because I am particularly humanitarian or perfect but as anyone would say, “Take as much time as you need.” I think that the vast majority of employers do say that. Before there was statutory sick pay, statutory holiday pay and so on, I am sure that a lot of employers, even in the 19th century, just did what they thought was the right thing—for example, the non-conformists building houses in Bournville and elsewhere. Employers always have been, and certainly are in the present day, far more responsible than just relying on the minimum in law. However, it is our place to make laws to provide that basic minimum—not to insult those who do the right thing but to provide a safety net, or catch-all, for the employees of those who do not. Quite clearly, there are those who do not, and they should be ashamed of themselves, frankly.
Not every employer is like BT or a firm with tens of thousands of employees. My hon. Friend the Member for South Suffolk (James Cartlidge) mentioned that he had a business with only two or three employees. That makes things much more difficult and employers have to be much more flexible. Big firms can make proper arrangements, and often do indeed have them. I have come across many cases of companies that have very responsible policies on this kind of thing, far and above what the law would provide, because that is the right thing for their employees.
Richard Harrington
The shadow Minister makes a good sedentary comment, but I detect a note of sarcasm.
The serious point here is that consultations in which charitable bodies and other institutions make points based on their experiences are an important part of the legislative process, because that is where the detail comes in. I can assure Members on both sides of the House that this is not a can-kicking consultation or a formality. It is very important. Anyone who is interested can submit a response, and the consultation is open until 8 June, so there is not long to wait. I feel that it is necessary. Sometimes consultations are formalities, but I do not think this is one of them.
Kevin Foster
I am reassured by some of what I am hearing from the Minister, but can he be clear that the Government will look at the results of that consultation with a view to being clear on primary care givers, rather than parents who are purely defined by biology?
Richard Harrington
My hon. Friend makes a good point, as is typical. He asked me whether I can be clear, and I can be clear that that is the case.
The definition of a bereaved parent will be the same in respect of both leave and pay for the Bill. We must not forget that this involves the two minimum rights, as I call them, of the leave that can be taken and the pay that goes with it. Those are the minimum rights, and I think many companies now fully exceed that. We have been clear all along that we want to introduce a system that prescribes clearly, based on the facts, who is eligible, for the benefit of employees and employers.
In some areas of employment law, legislation has been the right course of action. Legislation has set the principle, which employment tribunals interpret for particular cases, fleshing out how it should be applied. In this case, however, we do not want claims to reach an employment tribunal to establish whether an individual counts as a bereaved parent for these purposes, and it would not be right to expect people dealing with that tragic loss to muster the energy and time to follow that course of action. That issue came up on Second Reading and in Committee, and each time it became clear that the question who should count as a bereaved parent, which on the surface seems very simple, is not easy to answer.
The consultation seeks to get that right, so that when the regulations are published—this is not a case of regulations being published so that Ministers and not Parliament take control—they are correct. The regulations must be simple, but they must also be comprehensive and include all circumstances. That is a difficult balance to get right, but we are doing our best. I agree with the spirit of the amendment, but it is not appropriate to accept any measure that will effectively pre-empt the outcome of that consultation. We must allow the process to run its course.
David Linden
Can the Minister say when the Government will respond to that consultation? Have they set a timescale for that? We cannot just go on waiting for a consultation response—I would not be so bold as to say that that has happened before—so can he say when the Government will report back?
Richard Harrington
I fully accept the hon. Gentleman’s point, and we cannot allow this to go on and on. I think that it was Mrs Thatcher who said she was going to “go on and on”, but this is not one of those cases—well, it was not in her case either, as the hon. Gentleman will know. In all seriousness, I cannot give a direct answer, not because I do not want to, but because we must see how much information there is and process it. If I say “weeks”, perhaps he will hold me to that. I know that “weeks” could mean 5,000 weeks, but that is not what I intend. I hope that will give him a rough idea, but we cannot just hold the consultation one day, have a knee-jerk response and finish it, as I hope that he understands. There is no intention to stall. I have seen the spirit of the House today, and I hope that no one will think that this is a governmental stalling mechanism—far from it.
Amendments 3, 5, 20 and 23 consider the window within which leave and pay can be taken, and amendment 22 concerns the flexibility with which leave is taken. Given that this measure will join a fleet of others related to family-related leave and pay, we must maintain consistency. That is the genesis of the eight-week window and the ability to extend that through secondary legislation. We cannot have a situation in which the enabling framework is inconsistent with frameworks for other family leave provisions, thereby adding complexity and potential confusion.
Today, we have heard the view that the current eight-week window might not be enough. I have heard that message. That is one key element explicitly considered in the current consultation, and it is legitimate to ask people other than politicians for their views on this issue. The decision that leave could be taken at a later stage, while retaining a minimum timeframe of eight weeks in the Bill, is not unreasonable. We cannot accept any of the proposed amendments without waiting for the outcome of the consultation and then making a decision in view of the responses. Hon. Members and their constituents must engage in the consultation process, because we need the evidence base on which the Government can take responsible decisions. We need as broad a base of representative evidence as possible.
Kevin Foster
May I clarify for my benefit and that of other Members that the idea is for eight weeks to be the minimum timeframe and that the leave can be broken? This is not about a solid two-week period.
Richard Harrington
That is exactly what the Government are trying to find out. It may be that that is not appropriate, but my instincts are that what my hon. Friend says is right. Bills like this are strange. The natural thing would be to have as much flexibility as possible for almost anything, because these circumstances are different—of course they are. Each is a terrible tragedy, and we have heard speeches from hon. Members across the House about their own experiences, and those of their families and constituents. Everyone is different. We do not want to have to force everything into a narrow hole.
Employers have to know where they stand, however, otherwise we are just asking them to be nice people and to behave humanely. We do say that, of course, but it is not enough. We have to provide a framework and a balance must be struck. I think that we all agree that we need to provide employers with a simple set of rules, not an over-complex set of rules. The odd time—thankfully, it is just the odd time—that such a terrible bereavement happens, we do not want employers to be rushing around looking for papers, laws and guidelines. If an employer has only three or four employees, that is very difficult to do. I am sure their answer would be, “Take whatever you need,” but we have to provide the rules. I am absolutely clear that the amount of leave and pay is a minimum entitlement, so that all families who lose a child are given the bereavement support they need. I believe it is the absolute minimum.
The Bill was never about making sure that each parent who finds themselves in this situation has all the time off they need, because grief is different for each person. Grief is never time-limited and I am sure any reasonable employer would not or could not give people enough time off to deal with their entire grief—grief will happen over the rest of their lives. The intention is to set a minimum entitlement that employers must provide and to encourage a culture of support to develop around child bereavement. I am sure many employers would take into consideration the mental health needs of parents after bereavement, or extra time to deal with other children affected. This is the minimum; it is not everything. I hope that employers do not think, “Well, that’s all we have to do. That’s enough.” It never is. I am sure all responsible employers know that.
We have to consider employers’ rights. They have to have a clear framework. They need to know, in a way that is easily understandable, the minimum the law entitles them to. This may be obvious, but most employers will never come across this situation. When it does happen to an employee in a smaller company, employers will not have experienced the situation before. They will not have a file in a human resources department to tell them what their rights are. We found a consensus among employer groups for the minimum leave period of two weeks. It is sensible to continue with that, as long as it is known that it is the minimum entitlement in the Bill. Bigger, more organised employers will develop their own enhanced bereavement policies, as big firms often have very clear policies for almost every possible contingency.
On removing the age limit for a child, I cannot imagine how difficult it is to lose a loved one. The point was made, I think by my hon. Friend the Member for Chippenham (Michelle Donelan), that a child is a child. My mother is 89, but I am still her child. That may be obvious, but when we think of children for the purposes of the Bill one can assume that we mean little children. As my hon. Friend said so eloquently, to lose any child is not what nature intended but unfortunately it does happen. I can well understand why amendments seeking to remove the age limit for a child have been tabled. Having a sick child is understood easily by people. The way things are changing mental health, thankfully, is spoken about more now. However, people do not come across child bereavement very often, so it can be more difficult to speak about. The numbers, however, are not insignificant.
We have tried to get the balance right between those affected and those who need to administer this provision. It provides the minimum level of entitlement, but it does not prevent employers from enhancing their policies. I do not like the idea of having to consider costs in these circumstances, but they are unavoidable. There is a cost to employers and to Government, and the broader the scope, the higher the cost, so it is important to focus on the fact that this is a framework and a floor, providing a minimum. However, in so many areas of life employers go far beyond what the law sets the minimum for. Holiday pay and sick pay are good examples, and I am absolutely certain that the bereavement pay should be too.
Michael Tomlinson
The Minister is absolutely right: this is a statutory minimum. So many employers do so much better and I am sure that we all hope that they will continue to do so, but there has been this figure of a fivefold increase. It seems odd to be talking about money and financial costs in these circumstances. Can he explain, perhaps in more detail, the evidence that we have heard about a fivefold increase? Is it right that widening the scope and extending the age limit of 18 would increase it fivefold? If that is right, can he explain how?
Richard Harrington
I would like to consider my hon. Friend’s point. Perhaps I can drop him a line next week, or perhaps we can meet up and have a chat about it, because I do not want not to give a knee-jerk answer to a very complex question.
Kevin Foster
May I suggest that a letter with the information could be placed in the Library, given that we have discussed the issue on the Floor of the House?
Richard Harrington
Yes, I thank my hon. Friend very much for that suggestion. I would be very happy to do that and to correspond directly with my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson). We have to focus on the fact that this is a floor, as I think I have made clear. This is really about changing the culture around bereavement in general. It is my heartfelt belief that this Bill is not the be-all and end-all but that it will be a powerful driver of that culture change.
Alan Mak (Havant) (Con)
My hon. Friend mentioned the desire for a culture change among businesses. Will he continue to engage with the many business representative organisations to make sure that that message from this House is clear and spreads out across the whole country?
Richard Harrington
Yes. As ever, the good citizens of Havant are very well served. I make the point clearly that I meet business representative organisations, such as the Confederation of British Industry, the EEF, the Federation of Small Businesses and chambers of commerce, on a weekly basis. They are very responsible and I shall be bringing it up with them. This is a culture change, but culture changes do not happen instantaneously.
On remuneration, I really believe that the Bill again provides the minimum standard for employers. Hon. Members on both sides of the House have spoken about the level, but this is a minimum level, and bereaved parents have to know what the minimum is and what the entitlement is. However, it is not something that they should be negotiating with their employers. I am sure again that employers will be clear, and most will have a policy that is greatly in excess of that.
While I am on the subject, I turn to a point made by my hon. Friend the Member for Torbay. When we were discussing the amendment that deals with remuneration, I was asked about the civil service and whether the Government will provide leadership. I am pleased to announce today that we have decided that civil servants should receive full occupational pay for the one or two weeks that they take off under the Bill’s provisions. [Hon. Members: “Hear, hear!”] Many civil servants already take special leave when they find themselves in tragic circumstances, and we obviously want that level of support to continue when the Bill is implemented. I do not think that that makes the civil service particularly special. It should be standard, but I think we should lead by example. I have seen—not to do with child bereavement, but with sickness and other things—that the civil service is very flexible, and we as Government are very responsible employers in that way.
Will Quince
I thank the Minister for that very welcome announcement. It sends a very clear message to employers up and down the country that this is the gold standard and very much what we expect them to aspire to.
Richard Harrington
My hon. Friend is right: we must lead by example. Offering full pay to our own employees who lose a child means that we are a good employer, but it also provides a best-practice model for other employers to follow.
In relation to amendment 7, my hon. Friend raised an important point about consistency with other family-related leave entitlements. The Bill as drafted makes clear which contractual elements are applicable to parental bereavement leave or pay.
Let me now turn to amendment 8. I will begin with words that you have heard already, Madam Deputy Speaker: I agree with the comments made by many Members. It has been made clear that there is no desire to deviate from frameworks supporting existing measures in the landscape of family-related leave and pay, but that must not be at the expense of fairness and proportionality. Someone may be on family-related leave for many different reasons, and the forms of leave involved are a variety of lengths. They can be taken back to back. Sometimes it is natural for that to be the case, but sometimes it is not.
If the amendment were accepted, it might be possible for a bereaved parent who had been on leave for an extended period—perhaps consisting partly of maternity leave and partly of parental bereavement leave—to be entitled to return to the job that they had before going on leave, whereas a colleague who had been on other forms of family-related leave for the same period of time would not have quite the same right to return. We would not want a fixed “right to return” that was out of kilter with the other, existing “rights to return”.
The Government need the flexibility to set all this out through regulation after they have had time to consider all the various forms of leave and how they could interact with each other. I know that that sounds pedantic. Earlier this week, the hon. Member for Barrow and Furness (John Woodcock) accused me of being a nit-picker—there should probably be a Royal Society of Nit-pickers—but in this instance we have to nit-pick, because the detail is critically important. We should set out the rules only after we have considered the issue. That is, after all, the approach taken in the existing legislation on family-related leave and pay rights.
My hon. Friend the Member for Croydon South (Chris Philp) suggested the extension of leave to parents of premature babies. As I have said, all family leave provisions represent a floor. Employers are encouraged to go beyond the minimum when they can. Last year the Government worked with ACAS to produce new guidance on support for staff who have premature babies. The UK offers generous maternity-leave entitlements —some of the best in the world—and I think that they provide for a variety of circumstances. Parents also have access to other types of leave, such as shared parental and annual leave.
Chris Philp
I appreciate the Minister’s response to my earlier comments. I would point out, however, that the parents of very premature babies have additional caring responsibilities—particularly when the babies are in a neonatal intensive care unit—over and above the ordinary parental requirements involving a normal newborn baby. I therefore ask the Government to consider, at some future time, an additional leave right, over and above the normal one, for parents in those circumstances, when it is necessary for them to be present with the baby as much as possible.
Richard Harrington
I know that my hon. Friend has personal experience in that regard, as his twins were born prematurely. I was born quite prematurely myself. Some of us look as though we were not born prematurely. My hon. Friend has made a serious point, however, and I will definitely consider it.
Amendments 9 to 11 and 15 to 17 deal with notice requirements. In this context, we have to stop and think about what the word “reasonable” means. It looks sensible in drafting and in amendments, because people think, “Well, what’s reasonable is reasonable”, but it is very subjective. It is a word that remains open to interpretation and genuinely means different things to different people. If I was challenged on the grounds of reasonableness—for example, on the length of this speech—what would the outcome be? It is a serious point with a number of scenarios and thought processes, with the usual outcome that something can be considered reasonable or unreasonable for any number of reasons when viewed from multiple perspectives.
The amendment might inadvertently make it difficult for those who seek to rely on the provision to know exactly what it means for them. We cannot create a situation in which the issue of reasonableness ends up being a sticking point between employer and employee. Then we would have questions of whether it should go to an employment tribunal or how would it be arbitrated, when that would be the last thing that anyone wanted on top of dealing with the terrible tragedy of a child’s death. It would be the worst of all outcomes and I am sure that no Member would want to see it.
I understand the aim of the amendment, however, and I sympathise with its spirit. But given that we are dealing with such a delicate issue, in which clarity is key, we should keep the text of the schedule as it is.
Kevin Foster
I take on board some of the points that the Minister is making, but does he accept that “reasonable” is a word that has been in the law for a long time in various circumstances? For example, Lord Denning famously talked, in the language of his time, of the man on the top of the Clapham omnibus. One of the reasons we picked the word is because it has been decided on in the courts many times.
Richard Harrington
I thank my hon. Friend for that point and in my brief time not as a lawyer but doing a law degree I remember the Lord Denning case, which was about being subjective about reasonableness. It was fine for Lord Denning, as the Master of the Rolls, to opine on the issue, but we have to consider a system that will not, we hope, go to an employment tribunal or a court—that is the last thing that anybody would want. Although “reasonableness” seems a fine test on the surface, this is such a delicate issue that we need to keep the text of the schedule as it is, with due respect to Lord Denning and my hon. Friend, although I agree with him about the “reasonable” test generally in English law and other systems.
As for the eligibility for pay, I look at this from my business background. Keeping the qualifying period for the pay element aligned with family leave provisions avoids questions arising at this sensitive time about who is entitled to take both parental bereavement leave and pay, because employers are already familiar with how it works. If employers are able to follow the legislation easily it will, in turn, enable them to act in a way that reduces the stress and uncertainty of the bereaved employee. ACAS has opined a lot on this subject and my officials have worked with it to establish how the Government can best support employers when an employee suffers child bereavement. Much of it will have to do with guidance and support to reflect the new provisions after Royal Assent and once the regulations have been made.
In supporting the Bill, the Government want to ensure that employees and employers are both involved in managing child bereavement, in the context of existing family leave and pay legislation. So I think it better that we leave the Bill as it stands in this respect—consistent with existing family-related pay entitlements when it comes to eligibility for statutory pay.
On amendment 18 and the liability of HMRC, the point has been covered a lot in the proceedings on the Bill, and I believe we need to ensure that protections are in place in the event an employer does not fulfil his legal obligation.
To allow time for Third Reading, I would just say that this is as good a time as any to reiterate the Government’s full support for the Bill, and my appearance as the third Minister to represent the Government is not a signal of wavering commitment. It is a signal that we are trying to get it right and treating the subject with the importance it deserves. I hope that after today’s important stages the Bill will make a swift transition for consideration in the other place, so it can proceed and receive Royal Assent at the earliest convenience.
Kevin Hollinrake
I thank the Minister for his very clear representation of the Bill and his responses to the amendments, which I will not cover in great detail because he did an excellent job of that. I also thank the small business Minister, my hon. Friend the Member for Burton (Andrew Griffiths), for all his work in taking this Bill forward. He cannot be here today, but I know he very much wanted to be present to see the Bill, hopefully, through its final stages.
I also thank all Members who have contributed today and throughout the passage of the Bill. We have heard excellent speeches that have helped to shape the Bill. I thank in particular those Members who have been willing to share their personal experiences; there is nothing better to make sure that the Bill is fit for purpose as it goes through this House and the other place than hearing from Members from both sides of the House who have suffered such experiences. I have been lucky in my life, as I have four very healthy children. We have had a few mishaps along the way, but nothing along the lines of a stillbirth or the loss of a child. It amazes me—I find it inspirational—that Members are able to talk about their experiences in this Chamber.
I have had experiences from another relevant perspective—as an employer. Prior to entering this House I was an employer for 25 years, and I am still associated with the business. A number of people who worked for us have suffered these terrible tragedies, and I cannot think it ever entered our minds that we would not give people the leave that they needed for as long as they needed it, and to pay them without any deduction from their normal pay. That is the approach we have always taken, and I absolutely believe that it is the approach that the vast majority of employers in this country take, too. It is important to recognise that all the proposals and amendments are, understandably, trying to deal with the minority—the one in 10 who do not do the right thing—but those contributions are nevertheless incredibly important.
I want to thank a number of people individually. The first of them must be my hon. Friend the Member for Colchester (Will Quince). I am definitely the baton-carrier —if that is the right expression—for this Bill, as he brought forward a very similar Bill in the last Parliament but could not get it through in time. We absolutely would not have this Bill without him. Thousands of parents every year suffer these tragedies, so this is a hugely important proposal.
I also thank my hon. Friend the Member for Eddisbury (Antoinette Sandbach) for all her contributions, and my hon. Friend the Member for Banbury (Victoria Prentis), who cannot be here today but I know would have wanted to be.
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. I hesitate to interrupt the hon. Gentleman, but I am listening carefully to what he is saying, and while of course he can thank his colleagues and other hon. Members as often as he wishes—I have no objection; that is perfectly in order—I gently remind him that at the moment he should be addressing the amendments that we have been dealing with since 9.35 this morning. Once he has done that and we come to the end of this process, we will go on to Third Reading, when it is customary for the thanks to come, but of course the hon. Gentleman may wish to make his thanks more than once, and there is nothing wrong with that. If he does so more than twice or three times, I will have to say he is being repetitive, but I never discourage courtesy in this place—I am merely pointing him in this direction.
Kevin Hollinrake
I am very grateful for that informative interruption to my remarks. I was going to move on to the amendments, but the contributions of my colleagues and Opposition Members have helped to inform the discussion around them. However, of course I will respect your views, Madam Deputy Speaker, and move on now to the amendments themselves.
The principal amendments on which most of the debate has been focused are those dealing with the definition of a bereaved parent: amendments 1, 2, 12 and 14. My hon. Friends the Members for Torbay (Kevin Foster) and for Mid Dorset and North Poole (Michael Tomlinson) talked about primary care givers and grandparents. We have had a number of contributions on this matter, not only from hon. Members but from charities and individuals who have contacted me on Facebook. We had a Facebook debate on the issue, in which Nicky Clifford said that she wanted the measure to extend to grandparents when they were the child’s primary carer. Mrs Clifford felt that the grandparents had suffered a double loss when her son died. The charity Together for Short Lives said that the right to leave should be extended to legal guardians, as did the Rainbow Trust, which also mentioned foster carers. There is certainly a wide breadth of opinion on how the regulations should be set, hence the need for a consultation. The Government are consulting on these issues now, and the consultation should come to an end at 11.45 pm on 8 June. I urge all Members to make submissions to the consultation on the definition of a parent before that is set in regulations.
The other key amendments were amendments 3, 5, 20 and 23, which relate to the window during which leave can be taken. The hon. Member for North Ayrshire and Arran (Patricia Gibson) talked about the shock and disbelief that is felt when these things happen. Of course every case is entirely different, so it is absolutely right that we should be flexible. The same point was made by my hon. Friends the Members for Torbay and for Mid Dorset and North Poole. This was the principal area into which charities had an input. Faye Williams said on Facebook that her partner had been allowed two weeks leave, but that the funeral was not arranged in time within that window. Louise Wright said that her son’s inquest was in October, five months after he had passed away. Cruse Bereavement Care said that the leave entitlement should be spread over a longer period of 52 weeks. Interestingly, one of the bereaved mothers who made a submission to the consultation through Cruse stated:
“When my child was born, I was entitled to a year off, but when he died I wasn’t entitled to a day off.”
That is an excellent reason for bringing forward this Bill.
We need to take all these things into account. It is right that there should be a baseline minimum—amendment 5 would take out that minimum—but it is also right that we should look to increase it. I am certainly sympathetic to increasing it from eight weeks to a longer period of perhaps six or 12 months. I am sure that the Minister will listen to such representations. However, we also need to keep the legislation simple for reasons of administration, and for the sake of the businesses that deal with these problems.
My hon. Friend the Member for South Suffolk (James Cartlidge) talked about whether the leave needed to be taken as a two-week block. This is really about HMRC’s systems, but we would expect employers to be more flexible. On the point about extending the period of pay from two weeks to four weeks, we would need to look at the costs involved. The Bill has been carefully costed, and the cost to the Treasury will be £3.2 million per annum. The taxpayer will pay for the statutory pay, but employers will pay as well. The annual cost to businesses will be around £2.6 million, and we need to take that into account.
Amendments 6, 24, 21 and 25 focus on the age limit, and we had some good contributions on this point. From a parent’s perspective, there is no difference between the grief for someone who was 18 and that for someone who was 19. I quite understand that, and we had a number of similar submissions from the charities on this point.
My hon. Friend the Member for Croydon South (Chris Philp) mentioned this, but we need more discussion about the 24-week cut-off point between miscarriage and stillbirth, and the private Member’s Bill of my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) seeks to consider that issue. There must be a cut-off somewhere, and our friends at the Treasury certainly want to know exactly what the proposals will cost. We have already passed the money resolution, so I suggest to hon. Members that now is not the right time to try to amend the Bill in that way.
I thank hon. Members on both sides of the House for their constructive, informed and human contributions. I politely suggest that Members do not press their amendments to a Division so that we ensure that the Bill can proceed.
Michael Tomlinson
My hon. Friend mentioned the consultation and invited us to withdraw our amendments. Does he agree that it would be otiose—unnecessary—for us to repeat the suggestions that we have already made? This debate should be formally submitted to the consultation so that Members of Parliament do not need to write further submissions. Those involved in the consultation could simply read the Hansard reports of Second Reading, our Committee proceedings, Report and, hopefully, Third Reading.
Kevin Hollinrake
I was pleased that my hon. Friend explained what otiose means. He is absolutely right that the Bill has been shaped as it has passed through the House. The consultation is a key part of that, and it is fair to expect that some of the Bill’s provisions will be different from those that we see today. Finally, I politely ask Members not to press their amendments to a Division and to allow the Bill to pass through the House and on to the statute book as quickly as possible so that we help more parents who suffer these terrible tragedies in their hour of greatest need.
Kevin Foster
It has been fascinating to listen to the past few hours of debate, and I am pleased by the discussion of the amendments tabled by my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) and I. I was reassured to hear the Minister’s comments about the consultation, particularly that this is about setting a minimum, not a ceiling, and about practice in the civil service. I hope that the matters we have discussed today will be automatically included in the consultation, as my hon. Friend just said, without us having to write another letter stating, “As I said in the House of Commons on Friday 11 May, these are my views.” I look forward to the matter coming back for debate after the consultation has concluded, when I am sure there will be opportunities for discussion on the Floor of the House. Having listened to the Bill’s sponsor and the Minister, I beg to ask to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Third Reading
Queen’s consent signified.
Kevin Hollinrake
I beg to move, That the Bill be now read the Third time.
With your leave, Madam Deputy Speaker, I want to thank hon. Members from both sides of the House. I thank the hon. Member for Glasgow East (David Linden) for his contributions in Committee and his forbearance in the process, because I know that there are things that he would have liked to have taken forward. I thank the hon. Member for North Ayrshire and Arran (Patricia Gibson)—a constituency almost as beautiful as Thirsk and Malton. I also thank the shadow Minister, the hon. Member for Sefton Central (Bill Esterson), and those who played their part in Committee, particularly the hon. Member for Swansea East (Carolyn Harris), who spoke so powerfully.
It is remarkable what we can achieve when we work across parties, so it has been a fantastic experience for me, and I am sure for other colleagues, to be associated with this Bill, which is about not just a new automatic entitlement to two weeks’ leave but, as we have discussed many times, a cultural change among some employers in this country to make sure everybody steps up to the mark when people suffer these tragedies.
From our research and from third-party contributions, we know that nine out of 10 employers do the right thing, but we must make sure that all employers do. We must continue to raise the bar to ensure that our employers do more and more to respect people when they have significant difficulties and are in their hour of greatest need.
This kind of debate and this kind of legislation brings out the best in this House. The debate on 10 October 2017 on Baby Loss Awareness Week was attended by Members on both sides of the House, and my hon. Friend the Member for Ludlow (Mr Dunne), who was the Minister on duty that day, described it as the most moving experience he had ever had in this Chamber. It was incredible to be here to listen to those speeches from Members on both sides of the House.
Again, Members spoke movingly on Second Reading of this Bill on 20 October 2017, including my hon. Friends the Member for Eddisbury (Antoinette Sandbach) and for Banbury (Victoria Prentis) and the hon. Members for Swansea East and for North Ayrshire and Arran. My hon. Friend the Member for Mid Dorset and North Poole (Mr Tomlinson) told the touching story of his own experiences and how well such experiences can inform debate in this House. At times this needs to be a more human Chamber, and today the Chamber has been more human.
Principally, of course, I thank my hon. Friend the Member for Colchester (Will Quince) for his inspirational leadership and steadfast commitment. As he knows, I think this Bill should be called Will’s Bill as a result. I also thank the individuals and charities that have informed this debate, and certainly my constituents Annika and James Dowson, whose stillborn baby Gypsy was my first experience, as a Member of Parliament, of some of the difficulties that people experience. I am delighted to be able to stand here to represent the Dowsons today.
Members on both sides of the House have improved the Bill. We made some important amendments in Committee to include stillbirths, and those amendments were a result of the contributions from the hon. Member for North Ayrshire and Arran and my hon. Friend the Member for Colchester.
I thank the Government and Ministers for their support, and I thank the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Richard Harrington) for his excellent words. I also thank his officials for their tremendous service—they have made all this possible.
I very much hope this Bill will proceed from this House and swiftly pass through the other place. I am delighted to help move this issue forward, and I am keen to see Will’s Bill become Will’s Act.
Bill Esterson
I congratulate the hon. Member for Thirsk and Malton (Kevin Hollinrake) on the fine way in which he has piloted the Bill to its Third Reading. I endorse everything he says about the contribution of hon. Members on both sides of the Chamber to the Bill.
This is a subject that unites Members on both sides of the House, and this Bill is an opportunity for the House to demonstrate what we can do when we recognise that we have more in common than that which divides us. We have seen that displayed extremely well today. I thank those who have, no doubt with some difficulty at times, explained their own personal experiences of the tragic situations they have faced, and I commend them for their inspiring contributions to this debate on Second Reading, in Committee and today.
It has been said many times, but it is worth repeating that parental bereavement leave and pay provision did not exist and had not been considered until this Bill was introduced. Astonishingly, ours is the first country to have got this far in the provision of this correct support for those suffering bereavement. At one of the worst periods of someone’s life, it is only right that employers and the state do all they can to make that time a little easier to bear.
Many employers are extremely compassionate, and go above and beyond what is expected of them. This Bill does not seek in any way to undermine employers who do the right thing; it seeks to ensure that those who do not do the right thing have to catch up with everybody else. The Bill helps to reinforce the employers who are doing the right thing and to make sure that those who do not are not in a position to gain an advantage by undercutting, whether deliberately or otherwise. It is right that we rectify that position on something so important, and that there is no prospect of employers, deliberately or otherwise, being obstructive or unhelpful during the grieving process.
This legislation provides for the bare minimum; it is not perfect, but it is welcome and necessary, and it moves matters forward. It is right that bereavement leave for the loss of a child is the first way in which bereavement pay and leave is addressed. We heard discussion about the fact that bereavement affects us when we lose a partner, a family member or a close friend, but it is right that we put the loss of a child first, because the special connection between a parent and a child is different from other relationships and so this is different from bereavement on the whole.
This Bill has the support of the CBI, the Chartered Institute of Personnel and Development, the TUC and many other major organisations. We heard about the challenges for those with poor employment rights—those on zero-hours contracts or minimum-hours contracts, and those who are self-employed. These are all challenges to come, and I hope that when the Government respond to the consultation we will start to address some of these areas, along with some of the challenges faced by businesses when a key worker is absent.
Fundamentally, the Bill is the right thing to do. It makes a great start in providing support for those who have suffered the loss of a child, and it addresses the problem where the minority of employers—and it is just that—are not doing what they definitely should be doing. So I look forward, as a matter of some urgency, to seeing the Government’s response to the consultation. I very much welcome the fact that we have reached this point and we will be passing this Bill on Third Reading in a few minutes’ time. I hope that as this Bill is passed, with all of our support, it gives all those people who are experiencing the traumatic and devastating loss of a child one less thing to have to worry about.
Scott Mann (North Cornwall) (Con)
It is not often that we get to our feet in this place to ask the question: why was this not done before? It is abundantly clear to me that we are doing the right thing today. It is a pleasure to follow the shadow Minister, and I congratulate my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) on introducing this important Bill and getting it to this stage. I also congratulate my hon. Friend the Member for Colchester (Will Quince), who originally introduced this Bill in the last Parliament. He has been a big voice in this place for bereaved parents.
Losing a child is the most traumatic thing that can happen to a parent, and it is right that we introduce safeguards for bereaved parents going through such a painful and unimaginable experience. Parental bereavement has been brought into sharp focus since the start of the 2015 Parliament, notably by my hon. Friends the Members for Colchester and for Eddisbury (Antoinette Sandbach), who have both shared their experiences in a number of debates. I remember when my hon. Friend the Member for Colchester led an Adjournment debate on maternity units and bereavement care in November 2015. The accounts that he and my hon. Friend the Member for Eddisbury gave then significantly raised the profile of parental bereavement.
Since then, my hon. Friends and many others have taken part in debates and continued to campaign in support of bereaved parents. I have no doubt that that campaign led to the Conservative manifesto commitment to ensure that all families who lose a child are entitled to bereavement leave and pay. There has clearly been a lack of support for bereaved parents. I have no doubt that the campaigning on the issue by Members from all parties—including, notably, my hon. Friend the Member for Thirsk and Malton—has led to the introduction of this Bill.
Currently, if someone loses a child, they have to rely on holiday leave, or compassionate leave, at their employer’s discretion. Alternatively, they could take unpaid leave for a reasonable amount of time, as permitted under the Employment Rights Act 1996. This situation is clearly inappropriate. A bereaved parent should not have to use holiday pay or take unpaid leave at such a traumatic time in their life.
Bob Stewart (Beckenham) (Con)
It strikes me that we should also pay great tribute to the employers who give people as much time as they possibly can, fully paid. That happens so often these days, so only a small percentage of people will require the statutory two weeks’ leave.
Scott Mann
My hon. Friend is exactly right: we are dealing with only a small proportion of employers. Many great employers throughout the country would make such provision for their staff.
ACAS has advised that employers should have a duty of care, taking account of instances of bereavement, but it is right that we back that up with statute and give everyone a legal right to bereavement leave. That is why I wholeheartedly support the Bill. I am very pleased that the Government have introduced it and that it has cross-party support. It is a pleasure to be here to see the Bill make progress.
Statutory bereavement leave is a reasonably common right throughout Europe and among many other countries. I welcome the fact that the Bill goes significantly further than the rights that other countries provide for employees. It is right that the UK leads the way on this matter. I particularly welcome the provision of two weeks’ minimum bereavement leave, which will give parents sufficient time away from work to grieve with their family. It will also make easier the unenviable task of planning a funeral. It is a minimum period, and it is hoped that many employers throughout this great country will be able to afford to give people more than two weeks to get their affairs in order.
I welcome the fact that an employee who has been employed for 26 weeks will have a statutory right to bereavement pay, as well as bereavement leave. I also welcome the fact that employees who take parental bereavement leave will have the same employment protections that apply for other types of family-related leave, such as maternity and paternity leave. They will be protected from dismissal and detriment as a result of taking bereavement leave, which would be wrong.
One question before us today has been about the definition of a parent, which my hon. Friend the Member for Torbay (Kevin Foster) talked about, and how it should be covered by the legislation. It is right that the Government will take some time to consider that question and consult on it.
I welcome the amendment that was made in Committee to ensure that the definition of a child includes stillborn babies after 24 weeks’ pregnancy. Stillborn births are extremely traumatic for an expectant couple, and it is right that they should be afforded the same bereavement leave as those who lose a child in other circumstances.
It is important that parental bereavement leave works for employers as well as for employees. I am glad that the Government are currently consulting on the definition of a bereaved parent, on how and when they can take the leave and on notice and evidence requirements. I hope that some of my constituents who have either experienced the loss of a child or who own a business take part in this consultation to shape the bereavement leave policy.
I welcome and support this Bill today. I once again congratulate both my hon. Friend the Member for Thirsk and Malton on getting the Bill to this stage and other Members who have campaigned on this issue. Bereavement leave should be in place for all families who lose a child, and I will support the Bill on Third Reading today.
Patricia Gibson
I will test your patience for a moment, Madam Deputy Speaker, by repeating some of the earlier remarks that I made in thanking the hon. Members for Thirsk and Malton (Kevin Hollinrake), for Eddisbury (Antoinette Sandbach) and for Colchester (Will Quince). We have seen, over a number of months, real examples of constructive cross-party working. When that happens in this House—it does not happen very often—it can be quite a beautiful thing, so we should treasure it when it does happen.
The Bill is not perfect, but its passing today is hugely welcome and enormously significant. In passing this Bill, Parliament will do something good, which will help parents in their darkest hours. Today, Parliament has recognised that a parent burying their child is such a life-changing and such a traumatic event that it should be recognised in law. How it is dealt with in the workplace can no longer be left entirely at the discretion of employers—however well-meaning many, many employers may be. As the Minister said, if something is important and it matters, it is right that the law should recognise that fact.
The consensus across this House today is a testament to how important this Bill’s provisions are. We can easily imagine that they command the same consensus right across the United Kingdom. It is no secret that I would have liked more flexibility on when leave can be taken, and I would have liked the age restriction removed, but we have made a start. As the Minister said, it is hoped that the consultation will bring in many of the improvements that Members across the Chamber have talked about today. There is more to do, but this Bill sets a tone and a cultural shift.
I wish to extend my thanks to the hon. Member for Mid Dorset and North Poole (Michael Tomlinson) for sharing his own very personal story with us. I was particularly impressed by his eminently sensible suggestion that the comments, speeches and remarks that have been made today should definitely form part of the consultation, which we all hope will allow further improvements to be made to the Bill.
The Bill, as we have heard, sets out only minimum provisions, and we know that there is more work to do. Again, I pay tribute to the work that has been done so far, which will make such a difference to the lives of parents who find themselves bereaved. We have made a start, and I believe that we can and that we will go further in the future. I very much support the Bill.
Will Quince
This is indeed a great day. I did not come into politics with the thoughts of being a baby loss campaigner, or a campaigner for bereaved parents. It is tragic circumstances that has brought me, and so many others who work so passionately in this field, to this position. I remember the first journalist whom I spoke to on entering Parliament in 2015—she will know this when I reference the story. It was Isabel Hardman of The Spectator. She said, “If you could achieve one thing in Parliament, what would it be?” I said that it would be paid bereavement leave for parents who sadly lose a child. We are getting very close to that point. It has been an enormous team effort. I repeat the comments made by my friend, the hon. Member for North Ayrshire and Arran (Patricia Gibson), when I say how brilliant the cross-party working on this issue has been.
It has shown Parliament at its best. More than that, what we have seen over the course of the past two or three years is a seismic shift in the way that we approach bereavement, particularly bereavement for parents. We now have the national bereavement care pathway, which is launching nationwide at the end of this year. That is largely owing to the work of the all-party group on bereavement support. Again, we saw some brilliant cross-party working. We have seen the fantastic work of the hon. Member for Swansea East (Carolyn Harris), who I also call my friend, with her child funeral campaign. Now we have this Bill, which will give us one of the best workers’ rights in this area in the world.
I should like to say some thank-yous. The first goes to all the charities that have played such an important role through all the work that they have done in feeding into this process. This is not a new campaign—it is about something they have been calling for some time.
I pay tribute to all the bereaved parents who have contributed to all the consultations and thought processes that led to the Bill. It is really hard for bereaved parents to share their stories and talk about their own tragic loss, but they are willing to do it if they know it is going to make a difference to people who sadly find themselves in similar circumstances. I encourage the Minister, as this process continues, to continue to engage with bereaved parents. I encourage all bereaved parents who might be listening please to get involved in the consultation.
I thank the all-party parliamentary group on baby loss for all the work that has been done, again cross-party, to feed into this process. Lucy Herd, a bereaved mother who set up Jack’s Rainbow, has campaigned tirelessly on this subject. Someone who has not yet been mentioned, but who absolutely deserves it, is Tom Harris, the former Member for Glasgow South. He is another person who has passionately campaigned on this subject, first as an MP back in 2013, and since then as a journalist. I worked with him very closely behind the scenes on my incarnation of the Bill, and I know that he has continued to follow the path of this Bill very closely.
I thank parliamentary colleagues for all the work that they have done across this House to help to publicise the Bill and to get the word out there in supporting it. I also thank all the parties. After my Bill failed at the end of the last Parliament, all three major parties put this into their manifestos as a policy. That was a huge achievement. At the start of this Parliament, regardless of who ended up forming the Government, this was a manifesto commitment—a pledge—by all three major parties, and it was supported by all the smaller parties too.
I thank the Government and the Minister, because this has been, from the very beginning, like pushing against an open door. These things are never easy. We always look at it and think, “Well, of course it will be an easy thing to do”, but it never is—there are always complications and added consequences for any piece of legislation or change that we make, particularly on something as complex as employment law. But from the very beginning, the Secretary of State for the Department for Business, Energy and Industrial Strategy, the then Minister of State, and Ministers subsequently have all been so supportive of pushing this agenda forward. I thank all the civil servants who supported it too.
There is one person who I have to single out for the biggest thanks, and that is my hon. Friend—my very good friend—the Member for Thirsk and Malton (Kevin Hollinrake). When the ten-minute rule Bill failed at the end of the last Parliament, my hon. Friend, who has twice been lucky in the private Member’s Bill ballot, took it up. It is easy to underestimate the number of people, charities, organisations and colleagues who would have been lobbying him to put their Bill forward—hundreds and hundreds. Yet it only took one call to him. He did not even say, “I’ll think about it and call you back”—he immediately said, “Yes, of course I’ll do it.” That is to the credit of the man. He has passionately, committedly and determinedly put forward this Bill with great steadfastness and commitment. It is a huge credit to him that we have got as far as we have, and I hope that today we will be sending the Bill up to the House of Lords.
It is important when we consider a Bill of this nature to look at where we are now. Numerous Members have said that the vast majority of employers already do the right thing, and yes, they do. The vast majority act with compassion, kindness and sensitivity, and recognise that this is the most emotionally difficult period that their member of staff has had to, and probably ever will have to, come to terms with. But we are not legislating for them. We are legislating for the tiny minority of employers that do not do the right thing—the ones that act without compassion and with complete insensitivity and carelessness.
I had lots of anecdotal evidence before, but ever since the Bill was presented, a number of people have been in touch to say how disgracefully their employers have acted—and we are not just talking about small employers; we are talking about big ones too. I even heard from one individual who was working in our NHS. That should not be happening. People are being told that they have to come back to work or take it as holiday or unpaid leave, and some are not even given time off to go to their child’s funeral. It is an absolute disgrace. If it is just one person who is affected—if just one person has to go through the huge ordeal of questioning, “Do I go back to work even though I’m not ready and my family need me and I’m going through this horrendous ordeal, or do I lose my job and get sacked and therefore not be able to provide for my family?”—this legislation is worthy and right. That is why I wholeheartedly support the Bill and we have to act.
We have discussed grief a lot today. I have had an experience of grief, and I know what my grief was like. I have a small understanding of what my wife’s grief was like, but we all grieve differently. That is why it is so important that we ensure there is flexibility in the Bill and its future incarnations, as we potentially tweak it. We have put two weeks’ leave in the Bill, but we want there to be flexibility in when that can be taken, because not everyone grieves in the same way. One person’s grief will not be the same as someone else’s. I know mine was different from my wife’s. I wanted to get back to work a lot quicker, as a coping mechanism.
It is not just about grief. It is also about the huge amount of administration and processes that you have to go through, whether it is simply going to register the death or dealing with the hospital and, in some cases, coroners and inquiries. There are other things people do not think about, like going home and having to think about the bedroom upstairs that your child used to sleep in. Who is going to do that? Who is going to go through their wardrobe? We do not necessarily think about those things when we have not gone through that tragic experience. It is important that we give parents who go through this emotional tragedy the time to grieve in peace but also to make those all-important arrangements that only they, as parents, can do. That is why the Bill is so important.
We have talked about some of the issues with the Bill. We would like it to be more than two weeks’ leave, but that is very much a floor, not a ceiling. I would like all employers to say to their staff, “You take what time you need.” I was really reassured by what the Minister said he did when he was an employer, and I hope all employers would take that approach. As other Members have rightly said, it not only builds loyalty, but we know the social and economic cost of the mental health issues and family and marital breakdown that happen when parents lose a child and are not properly supported. It is in the employer’s interest to do the right thing. Through the Bill, we will ensure that all employers that are already doing the right thing are supported and recompensed via the statutory paternity or maternity leave process. We are not rewarding employers that are already doing the right thing, but ensuring that they see a benefit from it. This is more about employers that are not doing the right thing.
This is very much meaningful change. A number of Members have talked about the fragility of private Members’ Bills; I remember mentioning it in Committee a lot. At one point, I was not sure we would get to this point, because of the number of amendments, which are all worthy in their own right. I would like to see many of them included in future incarnations of the Bill, but we have to ensure we do not make the perfect the enemy of the good—and this Bill is fundamentally good. It will do good. As I said, we are introducing one of the most advanced workers’ rights in this area in the world. This is world-leading stuff, and we should all be very proud of it. Some members of the public who have a bit of disdain for politicians say, “You MPs do nothing. What do you do for us?” Today, we are doing something for tens of thousands of bereaved parents up and down the country. We know the good that this Bill will do.
My hon. Friend the Member for Thirsk and Malton kindly and generously referred to this as Will’s Bill. It is not. All my work in this area is only as a result of my late son Robert, so if anything, it is Robert’s Bill. I cannot thank my hon. Friend enough, and I am hugely indebted to him.
David Linden
What a pleasure it is to follow the hon. Member for Colchester (Will Quince), who made such a moving speech.
I will keep my remarks brief, because I want to ensure that the hon. Member for Hove (Peter Kyle) gets his important debate on votes for 16-year-olds. I pay tribute to the hon. Member for Thirsk and Malton (Kevin Hollinrake) and all members of the Bill Committee. I was conscious that the hon. Gentleman had a difficult task—indeed, he would meet me on a regular basis and try to temper me, as a new, naive young MP tabling all those amendments.
This is a good Bill, but it could have been even better. I understand the fragility of the private Member’s Bill process, and I continue to be frustrated about the way such Bills are dealt with—I think we will find that when we debate the subsequent Bill. While I understand that the process is fragile, I regret that we have still not done anything for employees who have been with a company or employer for fewer than 26 weeks, and that the Bill does not cover those who are self-employed or on zero-hours contracts.
I welcome the consultation that the Government are taking forward, but it is vital that we get clarity on when that will report back and how we will move forward. I spoke in Committee about my own circumstances, which were nowhere near as grave as those outlined by other Members, including my hon. Friend the Member for North Ayrshire and Arran (Patricia Gibson), who has done a power of work on the Bill. I hope that the Bill’s Third Reading indicates the beginning and not the end of a process that will give enhanced employment rights to people who have been through one of the worst things that anybody can imagine, and that the Bill will receive Royal Assent.
Antoinette Sandbach
It is a huge pleasure to follow the hon. Member for Glasgow East (David Linden) and hear his support for the Bill, together with that of so many others. My hon. Friend the Member for Colchester (Will Quince) said that he spoke to Isabel Hardman of The Spectator about his aim to introduce parental bereavement pay. My aim when I spoke to Judith Woods of The Telegraph—probably in the same week—was to speak out so that we could have the best possible practice, support and information for bereaved parents.
I pay tribute to my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake). I had the honour of appearing—on the “Victoria Derbyshire” show, I believe —with his constituent, Annika Dowson, to discuss some of the issues of grief and bereavement facing parents. We have kept in touch ever since and, like so many parents who have been in our position, she has been stalwart in this area, raising huge amounts of money for her local hospital and its bereavement suite.
I pay tribute to other hon. Members who have supported the Bill but cannot be here today, including my hon. Friend the Member for Banbury (Victoria Prentis) and the hon. Member for Lewisham, Deptford (Vicky Foxcroft), who spoke incredibly powerfully in Baby Loss Awareness Week about her experience. The hon. Member for Washington and Sunderland West (Mrs Hodgson) has also been really helpful; again, she has spoken movingly about her experience of stillbirth. I had the pleasure of sitting on the Bill Committee with the hon. Member for North Ayrshire and Arran (Patricia Gibson). I had a friend who went through an experience similar to hers, and it was simply devastating to see.
The fact that all of us have spoken out and shared our experiences has meant that the issue has been looked at in a completely different way. As the hon. Member for North Ayrshire and Arran said, it has led to a real, cross-party political will to ensure that parents who go through this utterly devastating and tragic event get an entitlement to some form of support. It is historically significant that we are extending the benefit system in this way to give support to bereaved parents. It is also historic, as benefit extensions do not happen very often. I pay tribute to my hon. Friend the Member for Thirsk and Malton, who has acted throughout with honour and decency. He has worked assiduously across the parties to ensure that the Bill is in the best possible shape and, as the hon. Member for North Ayrshire and Arran put it, to carry the valuable and delicate china of a private Member’s Bill to this point.
About 8,000 parents suffer the loss of a child each year. As we have heard, most employers understand how utterly devastating that is for the family involved, but not all of them appreciate that or have been willing to give their employees leave. Frankly, that is shocking in this day and age. We are making a real advance in the protection we give to employees. Hopefully, that will have an effect on the general approach to bereavement. The sandwich generation are looking after not only their children, but parents with very complex needs. I hope that the Bill sends a signal to employers to be compassionate, and to treat their employees with decency and understanding. That will be repaid in spades when they return to work.
I thank the Minister and the Government for the support they are putting in place for bereaved parents who have lost a child. Such time off is incredibly important, particularly as other children in the family will be affected, and will need their parents to support them and explain what is going on. They need to get through the fog of devastation and loss to try to find the parameters of where normality—[Interruption.]
Michael Tomlinson
I am very grateful to my hon. Friend for giving way. She is making such a powerful speech. I well remember the very first time I heard her speak so powerfully—during the Adjournment debate to which I referred a few moments ago. I have perhaps allowed her 30 seconds to compose herself before she concludes her remarks.
Antoinette Sandbach
I am very grateful for my hon. Friend’s intervention. We are making history today. I hope that parents who face child bereavement in the future will feel there is a little bit of grace and a little bit of space for them to be able to deal with what is an utter tragedy.
Mike Wood (Dudley South) (Con)
It is a real pleasure to be able to speak in this debate and to follow the moving contributions of my hon. Friend the Member for Eddisbury (Antoinette Sandbach) and many other Members.
I thank the many Members on both sides of the House who have supported the Bill and worked so hard to bring it to where it is today. I thank my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) for driving the Bill this far and my hon. Friend the Member for Colchester (Will Quince) for his work on his ten-minute rule Bill in the previous Parliament, which I was very proud to co-sponsor. I am delighted to see that Bill’s important measures included in this Bill, which I hope the House will endorse this afternoon.
Before I was elected to Parliament, I was a trustee and treasurer of a small bereavement counselling charity in the midlands. Our counsellors worked very closely with people from all backgrounds who had lost loved ones, including a large number of bereaved parents. They had lost children to illness, to accident and, in one case, to the Lockerbie bombing. The emotions and experiences of parents in such circumstances are wide-ranging and completely individual to each specific parent, regardless of what happened. For some, the early emotions were anger. There was despair and in some cases even a sense of guilt about what could and could not have been done differently, even when it was clear that nothing that they could have done would possibly have made any difference.
All bereavements cause grief. The loss of a loved one leaves a sense of emptiness and places strains on mental health. However, when someone loses their own child, it is particularly devastating, as a number of hon. Members have said, including my hon. Friend the Member for Chippenham (Michelle Donelan) in particular. It is completely the wrong order—it is not the natural way things should be. That does make such losses particularly damaging and painful. Children should not die before their family.
From the moment when a person learns that they are going to be a parent, their life and the way in which they see the world changes. They start to plan for what the future will bring for their children, and when those children’s lives are taken away, of course it has a huge impact on them. The whole world as they know it can be changed in quite literally a heartbeat. While all these losses are hugely and unimaginably painful, sometimes it can almost be even worse for the parents who lose a sick or disabled child. They may feel that they somehow get less support and sympathy from the community. They may almost feel as though people are suggesting that it is somehow for the best whereas, of course, this is their son or daughter who they will never see again.
It is absolutely vital that we do anything we can as a Parliament—as lawmakers—to make the process even the slightest bit easier at a time when people are experiencing particularly horrendous and acute pain. The pain does not go away, but of course there are times when it is particularly sharp. It is then that people should be allowed the time and space that they need to grieve in their own way and in their own time, because the impact on families can be terrible. There is often a very deep marital strain. The tragedy of losing a child can be compounded by the further tragedy of family break-up, so we need to allow parents the time to grieve together. If the Bill allows that, at a time when people are ready to grieve—it may not be in the week or two immediately after a child’s death—it will achieve a great thing.
A number of the details will be dealt with in the regulations on which the Government are consulting. I hope that all those with views on the how, what, when and who will submit their views to the Government’s consultation, and I also hope that the Government will interpret the definition of a parent broadly. The Bill says that the regulations may interpret that either wholly or in part on the grounds of caring responsibilities. That is clearly the logical way of interpreting who is a parent.
This is a necessary and important Bill but, more than that, it is the right thing to do. The sooner that we can get these measures on the statute book, the sooner they can start to make a little bit of difference to parents at a time when they need it most.
Richard Harrington
I will not go through the long list of speakers, because other Members have already done so. Let me merely endorse what they have said.
Bills such as this give rise to two types of emotion: one prompted by our political views or policy ideas; and the other due to our personal experiences or those of our constituents. We have felt a great deal of the second type of emotion today. It would not be right for me to single out individual Members’ moving and emotional speeches. In my eight years in the House, I have never experienced anything quite like them—certainly not as a Minister responding to a debate.
I covered most of the points on Report, but I should mention some of the voluntary and other organisations and people who have taken part in this whole process: Rainbow Trust Children’s Charity; Together for Short Lives; and Lucy Herd of Jack’s Rainbow. I hope that they are pleased with the progress that we have made today. People campaign, they lobby their MPs and MPs campaign, but in the House today, MPs have spoken on the basis of their own personal and, I am afraid, tragic experiences. That is different from normal politics.
Being present, as the Minister responding to the Bill, from 9.30 am until 2 pm has meant more to me than just being on duty. It has been an experience that I will not forget. I am very pleased and very proud to be, in my small way, a part of this process, and to reconfirm the Government’s commitment to the Bill. I look forward to the speedy progress of consultation and secondary legislation, and I am sure that the other place will be as supportive as we have been today.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Representation of the People (Young People’s Enfranchisement) Bill
Friday 11th May 2018
(5 years, 11 months ago)
Commons ChamberRead Full debate Representation of the People (Young People's Enfranchisement) Bill 2017-19 View all Representation of the People (Young People's Enfranchisement) Bill 2017-19 Debates Read Hansard Text
Peter Kyle (Hove) (Lab)
I beg to move, That the Bill be now read a Second time.
Let me begin by paying tribute to the many people and organisations that have been campaigning for a very long time to enfranchise 16 and 17-year-olds. There are too many to mention, but I want to single out the work of one organisation, the Association of Colleges, in recent months. The AOC represents further education colleges and sixth forms across the country, and while it often campaigns on matters of policy, this is the first time it has spoken out about such a politically charged issue. Like so many other youth organisations, it understands that young people have become disempowered, and, as a community, are losing out as a result.
Investment in post-16 education is lower than investment in post-18 education, and young people today emerge into an economy that is far more complex than any before, an economy that requires them to have a wider set of social as well as technical skills in order to thrive. The challenges that our country faces are increasingly long-term, from paying off our national debt to picking up the pieces from the Brexit referendum. Those are the challenges that our generation will hand down to the next, yet our political system locks out the very people who will be living longest with the consequences. It is time for that to change. There are many technical, practical, political and even emotional reasons for the change to happen, but for me it always comes down to one thing. Our politics is missing out on the wisdom and insight of young people. Many other Members throughout the House have come to the same conclusion.
I am extremely grateful to the right hon. Member for North Norfolk (Norman Lamb) and the right hon. Member for Loughborough (Nicky Morgan) for sponsoring the Bill. Their sponsorship illustrates perfectly that this is not a partisan issue but one that has support from senior Members on both sides of the House.
David Linden (Glasgow East) (SNP)
I am sure that the hon. Gentleman will get the usual excuses from the Government today, but does he accept the view of Ruth Davidson, the leader of the Scottish Conservatives, who said that until the Scottish independence referendum in 2014 she had opposed votes at 16, but after that process—for which the voting age was lowered—she was a convert? Does he hope that hon. Members will get their act together and support the Bill?
Peter Kyle
I am grateful to the hon. Gentleman for those comments. He will not be surprised to know that I intend to come back to the point that he makes in a few moments.
The hon. Member for Worthing West (Sir Peter Bottomley), who is not in his place, has been a solitary voice on this issue on the Conservative Benches, but he has been joined by a new generation of Members who are speaking out with real passion and commitment to delivering votes for 16 and 17-year-olds, in particular the hon. Members for East Renfrewshire (Paul Masterton), for Berwickshire, Roxburgh and Selkirk (John Lamont), for Ochil and South Perthshire (Luke Graham)—who is in his place—and for Ayr, Carrick and Cumnock (Bill Grant). They have been a powerful voice for change on their Benches, and we should celebrate that across the House. It is no surprise that they represent Scottish constituencies, because Scotland is the perfect illustration of why the present settlement is simply not fit for purpose.
Some people ask why 16 and not 15? There are two reasons. First, I believe that education to GCSE level equips young people with all the knowledge and critical thinking that is needed. Secondly, we have the practical experience in other parts of the United Kingdom that shows that it simply works. A 16-year-old in Scotland can vote in referendums, in local elections, and for their preferred candidate standing for the Scottish Parliament, but they have no say in who gets sent to Westminster. I do not believe that there is a Member in this Chamber willing to make the argument that the capacity needed to pick a representative for this Parliament is in any way different to that needed for the Scottish Parliament or indeed a local authority.
Layla Moran (Oxford West and Abingdon) (LD)
My background is as a teacher, and I can certainly attest that 16-year-olds have more than the capacity to make these complex decisions. In fact, does the hon. Gentleman agree that in some cases they put much more consideration into such decisions than some adults?
Peter Kyle
The hon. Lady makes a powerful point, and reflects the sentiment that I have heard from teachers up and down the country since I launched this campaign.
Similarly, there is no evidence, and nobody making the argument that since 16 and 17-year-olds were enfranchised in Scotland, subsequent elections and the referendum were in any way negatively distorted as a result of their participation. Now that 16 and 17-year-olds are able to participate in Welsh elections and those in the Channel Islands, it leaves England and Northern Ireland as the democratic laggards of the United Kingdom. Britain has become a democratic postcode lottery and it needs fixing.
We should all pity the Tory candidate who has to speak at a hustings in a future English election. They will have to explain to a 17-year-old questioner why their party believes that English teenagers lack the intellect, experience and common sense of their Welsh and Scottish counterparts and cannot be trusted with the vote. It is politically unsustainable.
Danielle Rowley (Midlothian) (Lab)
Does my hon. Friend recall the research that showed that during the Scottish referendum 16 and 17-year-olds looked at information from a greater variety of sources than any other age group?
Peter Kyle
I certainly agree. When I held a question and answer session with young people at Brighton Hove and Sussex sixth-form college recently, their questions were erudite, thoughtful and passionate, and rarely concerned their own lived experience in an educational establishment but addressed the big issues facing their community, our country and our planet.
Alex Chalk (Cheltenham) (Con)
Does the hon. Gentleman think that the legal age for drinking should be reduced to 16?
Peter Kyle
I say to my hon. Friends that we have to engage with such points, and in fact I will come to them later in my speech. But I do not believe that we should link public health with voting. If we do, we need to do so in other areas too.
My Bill would not just enfranchise young people, it would embrace them. By auto-enrolling under-24s and placing polling stations in educational establishments, it would strive to get young people into the habit of voting. Evidence shows that it is a habit that lasts a lifetime.
Tracy Brabin (Batley and Spen) (Lab/Co-op)
Does my hon. Friend agree with young people such as my constituents Hannah and Hawa, who have travelled to witness this debate and say that they have their own power and articulacy and should be listened to? They say that young people like them are ambitious about politics and want to express their views.
Peter Kyle
Of course I agree, and I welcome them on behalf of the Chamber to the House today. I know that they also enjoyed a good hour and a half of the previous debate and I hope that they learned a lot from that, too.
Returning to the point made by the hon. Member for Cheltenham (Alex Chalk), some people point to things that 16-year-olds are not allowed to do, such as drinking and smoking, but I urge Members not to link voting with public health issues. I think that would be perverse, not least because I look forward to banning smoking entirely. If public health and voting ages were linked, where would that leave voter turnout? We must look at this issue on its own merits, based on the formidable capabilities of today’s young people; we must think about what kind of democracy we should be.
Karen Lee (Lincoln) (Lab)
In the recent elections, the turnout was pretty abysmal—
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. If the hon. Lady faces the Chair, she will be better heard, and I will know who she is so I can say her name.
Karen Lee
Thank you, Madam Deputy Speaker; I am a new Member.
As is often the case, the turnout in the recent local elections was abysmally low. Does my hon. Friend agree that if younger people could vote, turnout might improve and the result might be more representative of what the general population thinks about issues?
Peter Kyle
My hon. Friend makes an important point, and if we had longer for this debate we would air such issues in more detail.
The Scottish experience in its referendum was that the proportion of 16 and 17-year-olds who voted was 20% greater than the turnout among 18, 19 and 20-year-olds. That shows that young people of 16 and 17 are enthusiastic, and when they get into the habit of voting and have the opportunity to do so, they grasp it with both hands.
Wes Streeting (Ilford North) (Lab)
As an honorary president of the British Youth Council and a former president of the National Union of Students, may I give huge thanks and congratulations to my hon. Friend for introducing this Bill? What we have just heard about the enthusiasm with which 16 and 17-year-olds have so far cast their votes when able to do so has also been reflected in the enormous support that the BYC, the NUS and other organisations have given to my hon. Friend’s Bill. That is another reason why Members on both sides of the House should support it.
Peter Kyle
I am grateful for my hon. Friend’s intervention. I know that, as a former president of the NUS, he has been considering and campaigning on this issue, and listening to young people’s views on it, for a long time—dating, indeed, back to the days when he was young himself.
Michelle Donelan (Chippenham) (Con)
I take on board the hon. Gentleman’s point about not comparing voting to other things, but we cannot gloss over it as simply as that. Is it not contradictory to say that those aged 16 cannot gamble, smoke or drink, but they can vote? In fact, it was Labour who said in 2005 that those under 18 should not be gambling online; have they changed their mind on that as well?
Peter Kyle
I simply say that we must look at this issue on its own merits. I simply do not recognise that there is a fundamental similarity in skills and intellect between gambling, smoking, drinking and voting. They are fundamentally different things, and some are public health issues while voting is about participation in our democratic process. We do need to look at these issues, but they must be looked at in the context of the Bill going through Parliament.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Will my hon. Friend give way?
Peter Kyle
No, I am about to conclude.
These issues need to be ventilated, and I am grateful to the hon. Member for Chippenham (Michelle Donelan) for putting them on the record. At the same time as Labour was raising the age limit on the activities she mentioned, it also said that it was open-minded on giving the vote to 16 and 17-year-olds. I think we would find that this generation of 16 and 17-year-olds and this generation of young people are far more sensible about drink, drugs and gambling than previous generations, and I think their voice and experience should be heard as we make policies, not shut out.
We must think about what sort of democracy we want to be. Do we want to be a democracy that looks for reasons to exclude, or do we fundamentally want to be a democracy that looks to the future, and that judges citizens on their merits today rather than the prejudices of yesterday?
Luke Graham (Ochil and South Perthshire) (Con)
I am conscious that we are short of time, although we should be having a full and comprehensive parliamentary debate on this matter. I welcome the cross-party support on this issue. I have worked with colleagues across the House on it, and I stand in support of the Bill today. This is not about party politics; it is about civic engagement. I support the Bill not because I am under some misguided belief that a 16 or 17-year-old would still consider me to be a young person but because of the evidence provided by the participation of 16 and 17-year-olds in the Scottish referendum and the subsequent Holyrood and local elections. So, what is that evidence? For anyone who was involved in the referendum in 2014, it was a pretty intense political process. One highlight of the campaign was going to the Hydro in Glasgow for a debate in which 16 and 17-year-olds came up with some of the most insightful and well-informed questions for our political leaders on one of the most important constitutional issues for our country.
This is not just about the standard of debate, however. The figures back this up as well. The Electoral Commission report on the 2014 referendum showed that 75% of 16 and 17-year-olds voted in the referendum, and the commission’s report on the subsequent Holyrood election showed that 78% of 16 to 17-year-olds voted in that election. That is higher than the figure for the 18 to 35-year-olds. I can reassure my Conservative colleagues that those 16 to 17-year-olds showed a greater propensity to vote Conservative than the 18-to-35s, so there are no worries about the direction of travel.
One issue that has been raised is that of demand. Do 16 and 17-year-olds actually want the vote? Although Scotland has led the way, the NUS should also be applauded for the campaign it has been running in colleges up and down the country to assess the level of support for voting at 16 and 17. It has run a vibrant and proactive campaign.
Luke Graham
I thank the hon. Lady for her contribution. Voting is an incredibly positive engagement, although I have to say that I have derived some pleasure from drinking in the past.
Alex Chalk
On the important issue of civic engagement, does my hon. Friend think that 16-year-olds should be able to sit in judgment on their fellow citizens on a jury?
Luke Graham
That is a very good point, and it is one that we should certainly review.
Luke Graham
If we are allowing 16-year-olds to vote and be part of the political process, yes, they should be part of the judicial process as well.
We have talked a lot about consistency today, and I want to turn to whether there is a difference between allowing 16-year-olds to vote and allowing them to drink, to smoke or to use sunbeds, which is a question that has been raised in Wales. The only thing that is consistent about the age-related laws in this country is their inconsistency. In pretty much every aspect of our age-related laws, we choose different levels at which to give people access. For a long time, people could vote at 18 but they could become an MP only at 21. That was changed in 2006. I see no reason why we should not have differentiated laws, allowing people to vote at 16 and run for office at 18. That is entirely consistent with saying that we want civic engagement. People would be allowed to vote before taking the next step of having the responsibility of representing 75,000-plus people.
James Cartlidge (South Suffolk) (Con)
My hon. Friend is making an excellent speech. Does he agree that if we were to be completely consistent, we would have to raise the age of consent? In my view, that would lead to the creation of an awful lot of criminals. As the hon. Member for Hove (Peter Kyle) rightly said, in a cross-party spirit, each of these age limits has to be based on its own individual merits.
Luke Graham
I could not agree more with my hon. Friend. We do not need to have consistency right across the board. These different age-related laws are quite separate and they are not contingent on one another. We should not allow them to muddy the waters and clog up this debate.
Nigel Huddleston (Mid Worcestershire) (Con)
My hon. Friend makes a perfectly valid point about the appropriate voting age, and I question whether 16 is the right one. I have just left a meeting with a bunch of schoolchildren in the education centre, where they were asking me the most sophisticated questions, some of which—dare I say it?—were far more sophisticated than the questions I get from their parents—[Interruption] —much as I respect the constituents of Mid Worcestershire, of course! I may have to dig myself carefully out of that one. My point is that there are some incredibly sophisticated children in this country, and they can be engaged in politics, but whether they should vote is a different question.
Luke Graham
As my hon. Friend’s point proves, age and wisdom do not necessarily go hand in hand—[Laughter.] The UK Youth Parliament and Scottish Youth Parliament representatives from my constituency have strongly advocated for votes at 16 and 17, and I applaud them for their representations. I am fortunate to have visited schools across my constituency, from Morrison’s Academy to Lornshill Academy, and the support for votes at 16 and 17 is there in the schools. Young people are engaged with the debate, and they are not only engaging within their age group, but challenging their parents and grandparents. We have a richer democratic discourse as a result.
Hugh Gaffney (Coatbridge, Chryston and Bellshill) (Lab)
As a new MP visiting schools, I know that 16 to 18-year-olds are angry that they are not getting a vote. The election last year could mean no vote for five years, which has changed the age gap. These kids are upset, and I fully support the hon. Gentleman.
Luke Graham
I could not agree more. Colleagues across the House need to remember that today’s 16-year-olds will be reaching 20 come the next election, and they will probably have a bearing on our own electoral successes.
Patrick Grady (Glasgow North) (SNP)
Another lesson that can be learned from Scotland is how the Scottish Parliament takes forward private Members’ Bills. This is the second Bill on votes at 16 this Session that is in danger of being talked out. The reality is that if such a proposal had the same amount of support in the Scottish Parliament as it clearly does here, it would go through because Holyrood’s system allows it. We need democratic reform, votes at 16 and to reform this corrupt, unfair private Member’s Bill system.
Luke Graham
The hon. Gentleman makes a point about the Scottish Parliament, but at the risk of getting slightly party political, I would draw his attention to the fact only one such piece of legislation was put before the Scottish Parliament in 2016-17, so its legislative example is not exactly leading the way. I will not take lectures on that from him in this place.
Mr Peter Bone (Wellingborough) (Con)
Whatever Members may think about the current private Member’s Bill system, does my hon. Friend agree that the suggestion that it is somehow corrupt is wholly reprehensible?
Patrick Grady
On a point of order, Madam Deputy Speaker. I believe that the word “cruel” has been used in the past because the system can be so unfair on Members, but I withdraw the word “corrupt”.
Madam Deputy Speaker (Mrs Eleanor Laing)
I am glad that the hon. Gentleman has made his point of order. I did not like the use of the word “corrupt”, but I appreciate that he was not calling any Member corrupt, so I did not call him to order. He has recognised that moderation is best, and I thank him for his point of order.
Luke Graham
Returning to votes at 16 and 17, I was about to talk about the risk of having different standards across the United Kingdom, which should not be the case. As a base minimum, we should allow 16 and 17-year-olds in England to vote in their local elections, as they can in Scotland.
Education was present in the previous private Member’s Bill on this topic, but it is absent from this one, so I want to highlight the importance of civic engagement across the UK and to tackle those who say that 16 and 17-year-olds do not have the right level of education or world experience to take part in a democratic process.
Danielle Rowley
I thank the hon. Gentleman for his generosity in giving way and for his support. As a fellow Scottish Member, does he agree that young people in our constituencies often feel more disconnected from their MP than from their councillors or MSP because they can vote for them?
Luke Graham
As a fellow Unionist, I think that is something we constantly need to combat. We have to remember that Westminster is Scotland’s Parliament, too. As MPs, it is incumbent on us to go into schools to make sure we are just as accessible as many MSPs or local councillors.
Jim McMahon (Oldham West and Royton) (Lab/Co-op)
That is the point, is it not? If young people in Scotland already have the right to vote and if young people in Wales will soon have the right to vote, and if we believe in a United Kingdom, it is right that we have a united democracy in the United Kingdom, too.
Luke Graham
I could not agree more. As a basic minimum, we should make sure everyone can participate in local elections at 16 and 17.
On civic engagement, the previous private Member’s Bill, the Representation of the People (Young People’s Enfranchisement and Education) Bill, would have specifically provided for constitutional education across the United Kingdom. Obviously, education is devolved, so the exact delivery of such education is at the discretion of the devolved Administrations, but the content should be uniform across the United Kingdom.
I remind the House again that the United Kingdom would not exist without a Scottish king. The political Union that sees the unicorn side by side with the lion, and the thistle, the rose and the harp we see in every cornice and on every bit of woodwork in this building, is a reminder that this is Scotland’s Parliament, England’s Parliament, Wales’s Parliament and Northern Ireland’s Parliament together. We should make laws that bind us together and provide rights to us together.
We spoke earlier about consistency, and my hon. Friend the Member for Cheltenham (Alex Chalk) mentioned the judiciary. Again, I make the point that these laws are not contingent on each other. Like many in this House, I believe that 16 and 17-year-olds have the wit and wisdom to be able to differentiate between different rights and different activities. We should take each of those topics on its individual merit. If he wants to change the position on 16 and 17-year-olds serving on juries, I look forward to his private Member’s Bill, which I am sure will be forthcoming.
Tom Pursglove (Corby) (Con)
Often the argument is made that it would be helpful to have an overarching review of all the different qualification ages. Is that something my hon. Friend would welcome?
Luke Graham
I would more than welcome a review, but we have to be careful that we do not turn such a review into another royal commission and another formal debate. We need action. We usually ask for a review when we do not have any evidence, but we have clear evidence in Scotland on the participation of 16 and 17-year-olds, on how they are contributing to our democratic discourse and on how they are influencing and participating in local democracy. We do not need a review; we need more action.
Rachael Maskell (York Central) (Lab/Co-op)
The hon. Gentleman is making an excellent speech. Does he agree that, as is evident, those people in our society who are most socially excluded would be more included if they could vote at the ages of 16 and 17?
Luke Graham
I could not agree more. When I go round schools and community groups to speak to 16 and 17-year-olds, as I am sure the hon. Lady does, they really are at an inflection point in their lives. They are coming towards the end of their education or course and will be deciding which area of work they want to go into, or whether they want to go on to further or higher education. It is an important moment for us, combined with some of the education measures I mentioned earlier, to engage with those individuals so we can tell them how important they are, how valued they are as British citizens and how their voice matters. It is essential that, as MPs, we sit down with 16 and 17-year-olds, who are the primary users of our state-funded education system and are users of other public services, and look them straight in the eye and say, “I think your voice matters.”
James Cartlidge
On public services, I recently tabled a written question to the Chancellor on the amount of tax and national insurance paid by 16 and 17-year-olds. Interestingly, the figure for those who are eligible is £2,247, more than every category of pensioner, which is perhaps not surprising. Does my hon. Friend agree that one of the key issues is taxation and representation? If people are expected to pay tax and national insurance, they should have a say in how that tax and national insurance are spent.
Luke Graham
My hon. Friend makes a valuable point, and I certainly was not aware of that figure. I would be grateful if he shared the figure with me and other members of the all-party parliamentary group on votes at 16. This House probably should have learned the lesson by now that taxation without representation can lead to unforeseen and unfortunate consequences, so I hope that we can seek to avoid that in future. Many speeches and column inches are taken up with how to engage with young people. A huge multitude of think- tanks, debate nights and academic pursuits—
David Linden
On a point of order, Madam Deputy Speaker. A number of Members have, unusually, come to the House on a Friday because they wish to vote in favour of this Bill, which the Government have blocked today by means of filibustering. [Hon. Members: “No!”]
David Linden
What methods are available to hon. Members to change the procedures of this House to allow us to have a vote and allow votes at 16 to become law, as is the will of the people?
Madam Deputy Speaker
I understand the hon. Gentleman’s point of order. The first part of it alleges negligence on the part of the Chair, so I cannot allow that to stand. No filibustering has taken place in this House today, because if such a thing had occurred, I would have stopped it. It is the case that we had one Bill that went through two stages and it took a long time to do that. Therefore, this Bill has had only half an hour’s consideration. That is perfectly proper under the rules of the House. His question about changing the procedures is a very good one that has merit, although I of course express no opinion as far as that is concerned. I suggest that he, and any other Members who feel as he does, should consult the Chairman of the Procedure Committee, who might wish to consider the points that he has made.
Lloyd Russell-Moyle
Further to that point of order, Madam Deputy Speaker. When we tried to bring this matter to a vote with the last private Member’s Bill on the subject, you stated that you felt more time was need to debate this issue. Could you advise me on how much more time you think is needed to debate this issue before this House will get a vote on it?
Madam Deputy Speaker
It is normal for the Second Reading debate on a Bill to have some three, four or five hours on the Floor of the House. This Bill has had only 28 minutes this afternoon, but the matter is not up to me. It is normal to have considerably longer than 28 minutes to deal with very important matters.
The debate stood adjourned (Standing Order No. 11(2)).
Ordered, That the debate be resumed on Friday 26 October.
Madam Deputy Speaker
It will be resumed on 26 October—that is the answer to the question asked earlier. We shall hopefully then have another opportunity to discuss this important matter.
Business without Debate
Hon. Members
Object.
Bill to be read a Second time on Friday 15 June.
local authorities (borrowing and investment) BILL
Motion made, That the Bill be now read a Second time.
Hon. Members
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Bill to be read a Second time on Friday 15 June.
principal local authorities (Grounds for abolition) BILL
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Hon. Members
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Bill to be read a Second time on Friday 15 June.
COASTAL PATH (DEFINITION) BILL
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Madam Deputy Speaker (Mrs Eleanor Laing)
I know that I said earlier that repetition was not in order, but at this point it is in order.
judicial appointments and retirements (AGE lIMITS) bILL
Motion made, That the Bill be now read a Second time.
Hon. Members
Object.
Bill to be read a Second time on Friday 15 June.
representation OF THE people (young people’S ENFRANCHISMENT AND education) BILL
Resumption of adjourned debate on Question (3 November), That the Bill be now read a Second time.
Madam Deputy Speaker (Mrs Eleanor Laing)
So Members are to have two opportunities on 26 October.
universal credit (application, advice and assistance) BILL
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Hon. Members
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Bill to be read a Second time on Friday 23 November.
MArriage (Same sex couples) (Northern Ireland) (No. 2) BILL
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Hon. Members
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SUPERVISED DRUG CONSUMPTION FACILITIES BILL
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HOSPITAL (PARKING CHARGES AND BUSINESS RATES) BILL
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Bill to be read a Second time on Friday 15 June.
HOUSE OF LORDS (EXCLUSION OF HEREDITIARY PEERS) BILL
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Hon. Members
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Bill to be read a Second time on Friday 26 October.
PRIVATE LANDLORDS (REGISTRATION) BILL
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Bill to be read a Second time on Friday 26 October.
BBC LICENCE FEE (CIVIL PENALTY) BILL
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INTERNATIONAL DEVELOPMENT ASSISTANCE (DEFINITION) BILL
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BENEFITS AND PUBLIC SERVICES (RESTRICTION) BILL
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ELECTRONIC CIGARETTES (REGULATION) BILL
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Hon. Members
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Bill to be read a Second time on Friday 15 June.
PEDICABS (LONDON) BILL
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Hon. Members
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Bill to be read a Second time on Friday 15 June.
VOTER REGISTRATION (NO. 2) BILL
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Hon. Members
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Bill to be read a Second time on Friday 15 June.
KEW GARDENS (LEASES) (NO. 2) BILL
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Bill to be read a Second time on Friday 15 June.
RIVERS AUTHORITIES AND LAND DRAINAGE BILL
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Bill to be read a Second time on Friday 15 June.
WILD ANIMALS IN CIRCUSES BILL
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Hon. Members
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Bill to be read a Second time on Friday 15 June.
FORENSIC SCIENCE REGULATOR BILL
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Bill to be read a Second time on Friday 15 June.
Road traffic offenders (Surrender of Driving Licences Etc) (No. 2) Bill
Motion made, That the Bill be now read a Second time.
Helen and Douglas House Hospice
(5 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Layla Moran (Oxford West and Abingdon) (LD)
I am so grateful that the House has allowed me to speak about funding for the Helen and Douglas House Hospice in Oxford. It is an incredibly important matter, not least because Helen House was the world’s first children’s hospice, starting the children’s hospice movement that spread around the world. It opened in 1982 to provide a home for terminally ill babies, children, young adults and their families. In 2004, Douglas House was opened by Her Majesty the Queen to provide care for 16 to 35-year-olds, not just in Oxfordshire but throughout the whole south-east. It provides specialist services for young adults, bridging that crucial gap between children’s and adult hospices.
I am sorry to say that we have to be here today because those services are under threat. Indeed, 48,000 people signed a local petition—that is extraordinary for a local petition—calling on the Prime Minister to intervene to stop the closure of Douglas House and to make sure that those services are properly funded. That is a staggering amount of public support and I hope that the Minister takes that to heart today.
Let me start by outlining the value and importance of Helen and Douglas House. I think that it is best summed up by my constituent Alison, who is a volunteer in the hospice. She said:
“Helen and Douglas House really is one of a kind, providing a lifeline both to those needing end of life care, and their families—from befriending and home support services, to The Elephant Club for bereaved siblings; to the annual remembrance service. Helen and Douglas House brings these families together, providing a support network to help them enjoy the time they have left together, and to face the future afterwards.”
Families rely on the work of Helen and Douglas House and they are indebted, as we all are, to the dedicated army of staff, volunteers and fundraisers who go above and beyond, and also to the nurses and the medical team.
Robert Courts (Witney) (Con)
The hon. Lady is making a very powerful and moving speech. Helen and Douglas House is not far from my constituency—it borders my constituency. I have visited it, and I am sure that she has, too. Perhaps she will agree with me that it is an oasis in the centre of Oxford. I wish to pay tribute—as I am sure that she does too—to everybody who works there, to all the volunteers, to the extraordinary therapy provided for the patients and to the support network that is provided for the family.
Layla Moran
I very much thank the hon. Gentleman for his intervention, and completely endorse what he says. The care that the hospice provides is world class and one of a kind. With the closure of Douglas House—I will get to this later—we will see hospices across the area having to deal with the extra need. Helen House is truly unique. I wish to pay tribute to some amazing fundraising efforts. Paul Townsend of Abingdon and Stuart Ryan of Farringdon are looking to raise £92,000 for Helen and Douglas House, and also for Sobell House in Oxford, with a tour of 92 football grounds in the 2018-19 football season—I suspect that there may also be an ulterior motive to their fundraising efforts, but I wish them well. Golfer Eddie Pepperell from Abingdon will wear a Helen and Douglas House cap for the televised BMW PGA championship in Wentworth later this month. He has also raised £7,500 via JustGiving.
Local businesses, including Stagecoach, radio station Jack FM—of which I am a huge fan—and Reed recruitment are just a few examples of the local businesses that have taken Helen and Douglas House into their hearts. The strength of feeling in the community across the whole of Oxfordshire is palpable.
Bambos Charalambous (Enfield, Southgate) (Lab)
Does the hon. Lady agree that it is a real shame that many hospices, such as the North London Hospice in my constituency, have to resort to fundraising to provide palliative care, which is so massively under-resourced with the NHS?
Layla Moran
I absolutely agree with the hon. Gentleman. There is a more systemic issue that I will get to later in my speech.
I now wish to tell the story of Sienna, who very much exemplifies one of the children and many of the families who we know use Helen and Douglas House. She is six years old and lives in Wootton with her mum, Kay, and dad, Andy. Her brother, Jamie, is 13 and sister, Ella, is 12. Sienna was born with Dravet syndrome, a rare and catastrophic form of epilepsy. Kay said:
“Being Mum for Sienna is like having a new-born baby for life. She cannot do anything for herself and therefore requires 24-hour care and monitoring. Her health is fragile and she is constantly dealing with illness and seizures, which are worse when she gets a temperature. Looking after a child like Sienna can consume much of my time, so having help is essential so that I can also be Mum to my other two children.”
She goes on to say:
“When Andy and I need a few days to spend time as a couple, or do something active with Jamie and Ella, Helen and Douglas House provides Sienna with a welcoming and safe place to go. Helen House is sensitive to the needs of our family and in that way it feels a lot like coming home; a safe haven. It makes me feel normal again and able to carry on.”
That very much exemplifies what hospices across the country do.
Let us get to the crux of the issue, however. The hospice is now facing the closure of Douglas House. Why is this happening? First, we have a situation where more babies are being born earlier and therefore many of them have more severe issues, and also medical advances mean that they are living longer. That is fantastic, but there is a knock-on effect in the wider system because demand is increasing. This is a third-sector organisation that, when it was first set up, never wanted or asked for money from the NHS but now finds itself providing services that the NHS itself should be providing, and facing a shortfall of £3.6 million. It brings in a huge amount—£52.3 million a year—but its expenditure is £55.9 million.
That is why we are now facing the closure of Douglas House, with a loss of care for 90 patients and 60 job losses. These are specialist nurse and medical teams that I fear would disappear from our ecosystem in Oxfordshire and have to end up going elsewhere. The hospice is also considering a review of its 37 excellent shops, which I often shop in. It currently receives zero funding from the local clinical commissioning group. That is the crux of the issue. Some beds are brought in by the NHS—roughly 12%—but zero per cent. of its funding comes from the CCG. I would argue that that is partly why the deficit has built up over time. In a way, the NHS is abdicating some of its responsibility towards an organisation that has been very strong at fundraising in the past but is now struggling and still being asked by the NHS to provide this service.
It is worth noting with cautious optimism that in more recent times—literally the past couple of weeks—the CCG has told the hospice that it might be able to give it some money, in the order of £100,000. However, hospices in nearby areas such as Buckinghamshire and even Birmingham that are doing similar things are being funded in the order of 30% to 37% rather than the 12% that Helen and Douglas House gets from the NHS.
I would like the Minister to address some of the bigger systemic issues. Of course, if there were a magic pot somewhere that she wanted to announce, that would be lovely, because we desperately need the money, and if we could in any way avoid the closure of Douglas House that would obviously be the best option. Will she explain why children’s hospices are funded less than adults’ hospices? That is the top ask. We need to ask ourselves whether that is fair. Together for Short Lives, the fantastic charity that does work in this area, is calling on the Government to grant £25 million a year to bring in funding parity. I think that is a fair ask given the amount of work that the hospice does. I should point out that the Scottish Government have already earmarked £30 million over the next five years to do just that. I know that nobody in this place ever wants to fall behind the Scots, so let us make sure that we get this right.
In 2016, the Government’s response to the review of choice in end-of-life care stated that to support high quality personalised care for children and young people, commissioners and providers of services must prioritise children’s palliative care in their strategic planning. If that is true, then why did we get to the point where Oxfordshire’s Helen and Douglas House received nothing from the CCG? While I appreciate that the Government are making the right noises on this, I am asking for some clarity on oversight. Are they checking and challenging the CCG, because I am not convinced that that has happened so far? It really should not take a petition of 48,000 people to get to the point where the CCG is finally starting to listen. That is ridiculous. Where else in the country is this happening? We have amazing organisations falling by the wayside.
There are some more specific things about Helen and Douglas House that I would like the Minister to address. The first is communication. The Government need to take some ownership of this. On 14 February, I wrote to the chief executive of Oxfordshire clinical commissioning group about the future of Helen and Douglas House. I was met with quite a lengthy waiting time and got a response—clearly a “cut and paste”—from the community and engagement team on 27 March. Their main argument was that Helen and Douglas House has the capacity to bid for contracts. Helen and Douglas House told me that the contract it was being asked to bid for was so vast, and the sort of care it was being asked to provide was so huge, that it did not feel it was the right fit for that pot of money.
It is a proactive organisation, so it reached out to the CCG and said, “We can’t bid for this”—in fact, Barnardo’s now has that contract—“but what we can do is this, that and the other. Can you help us? We’re providing a great service,” but it received radio silence from the CCG, with delay after delay. It had some meetings where it felt things were going forward, and then nothing happened. That lack of communication and lack of accountability for what the CCG does is the crux of what I would like answered today. If excellent organisations like Helen and Douglas House, which has a long-standing and illustrious history, are not able to engage with the CCG, where else is that going wrong, and what handle do the Government have on that? I welcome what the CCG has now done, but are we sure there are not hospices elsewhere where that is happening?
The last point I would like to make is about the false economy of not providing this care. This is critical. The intensive care nurses in the John Radcliffe, when speaking to the chief executive, said, “These are the children on the wards who we worry about the most.” These are the sickest children in our society, and if they are not being given that care before, and if the families are not properly equipped to do what they need to do to prevent these children from going into intensive care, we all know how much that costs. There is a cost argument. The children obviously would much rather not have to go into intensive care; they would rather have the care at home, or if their parents have respite, they can give that care properly. If we end up not spending the money, further down the line, all we will end up with is NHS trusts having to provide the intensive care for these children.
There is a disincentive in the system, because the money for NHS intensive care comes from the trusts, but the money for hospices comes from the CCG. It is clear to me that that is where the bottleneck lies. That communication is not working freely. The overall picture is not working well. We saw a move from Government, with the name change to the Department of Health and Social Care, earlier this year, towards more joined-up thinking in this area. However, I want to know what the Minister has been doing to unblock this specific issue. I was a little disappointed that, when I asked a written question on this matter, the Minister wrote back saying that there had been no discussions at all with Helen and Douglas House, despite the fact that it has been raised in this place and the other place.
We are now getting some traction, but £100,000 is not enough. Helen and Douglas House has asked for £215,000, which would bring parity with neighbouring counties. What can the Minister do to unblock this? What can she do to ensure that in future, other hospices like Helen and Douglas House do not have to make a massive media ruckus and go to their MP to get an Adjournment debate, and that they can provide the care that we desperately want the most poorly and vulnerable children in our society to receive?
The Minister for Care (Caroline Dinenage)
I congratulate the hon. Member for Oxford West and Abingdon (Layla Moran) on securing a debate on this really important matter. As MPs, we are all aware of the crucial role that hospices play in supporting our local communities at a time of need. That is a testament to the dedication of staff, the incredible efforts of volunteers and the amazing feats of fundraisers, many of whom have been inspired by hospices’ incredible support to their loved ones in the last days of their life, or the respite care that children’s hospices often give. Hospices step up to deliver amazing care at some of the toughest times of life, and I pay tribute to all of them. I totally understand the concerns that the hon. Lady raises and share many of them myself.
Hospices across England have been delivering exceptional end-of-life care and supporting their local communities for many years. A testament to that is the fact that the Care Quality Commission’s “State of Care” report, which was published in October 2017, showed that 70% of hospices are rated as good and 25% as outstanding—the figures are higher than those for any other secondary care service in the country.
In 2017, Helen and Douglas House was rated as good by the CQC. Like the hon. Lady, I congratulate its incredible hard-working staff and volunteers on ensuring that children and young people get the personalised care and support that they need and deserve, both at the hospice and through its outreach services. In the same year, I understand that Helen and Douglas House raised an impressive £8.8 million through fundraising and trading activities. That was £300,000 more than the previous year, which shows its value to the local community.
Historically, the hospice movement was established from charitable and philanthropic donations, so the vast majority of hospices are primarily funded through charity, but they receive statutory funding from clinical commissioning groups, and in some cases from the Government, for providing local services. According to its annual report and accounts, Helen and Douglas House received more than £500,000 of statutory funding in 2016-17, including £280,000 via NHS England’s children’s hospice grant, which is awarded annually.
I am aware of recent announcements by the hospice of plans to close Douglas House, which provides support to young adults between 16 and 35, and I recognise the concerns raised by the hon. Lady and her wider community. The fact that more than 40,000 people have signed a petition shows the strength of feeling in her local community, and it is important that young adults with life-limiting conditions can access the support and care they need. Of course the local community is desperate to hold on to that specific facility, but I am sure the hon. Lady welcomes, as I do, reassurance from Oxfordshire CCG that it is working with the hospice to ensure that local patients being cared for at Douglas House continue to receive the essential healthcare they need.
Robert Courts
I thank the Minister for her kind words, which are appreciated. Concern about this issue is felt all over Oxfordshire and throughout the wider south-east. Does she agree that it is important that the CCG continues to engage with all interested parties locally, including Members of Parliament, and that this underlines the importance of a close link between care and the NHS?
Caroline Dinenage
I believe that my hon. Friend has visited the hospice and I know that he works keenly on this subject. I totally understand the feelings of local people, and I feel strongly that CCGs need to engage with local communities and ensure that the services they commission meet local needs and support local people.
With Douglas House planning to close from July, the hospice has been discussing with Oxfordshire CCG the future of Helen House, which provides hospice beds for children aged between nought and 18. Oxfordshire CCG wants to look at a more collaborative approach to end-of-life commissioning once its current contract for adult hospices finishes in September 2019. The hon. Lady spoke about how the hospice has been excluded for bidding for certain contracts because of the wide nature of what they entail, but the process allows smaller providers such as Helen and Douglas House to work with others to bid for contracts. In the meantime, Oxfordshire CCG is keen to pilot collaborative working with the hospice, which is why it has offered £100,000 for a pilot project until September 2019. Wider discussions are taking place between the hospice trustees and local partners, including Oxfordshire CCG, NHS England and Oxford University Hospitals NHS Foundation Trust, to examine future models of care and the longer-term sustainability of the hospice. NHS England has also been involved in those discussions.
Across England, there are 223 registered independent hospices and a very small number of public hospices that are run by NHS trusts. Around three quarters of those provide adult services, with the remainder caring for children and young people. Funding amounts vary among CCGs, but on average adult hospices receive approximately 30% of their overall funding from NHS sources. CCGs are responsible for determining the level of NHS-funded hospice care locally, and for ensuring that they meet the needs of their local populations.
In addition to NHS funding for locally commissioned services, in 2017-18 children’s hospice services received £11 million through the children’s hospice grant. This is awarded annually and administered by NHS England. Children’s hospices tend to receive smaller amounts of statutory funding because of the way they have developed and the services they provide, and the grant provides the additional support they need. Unlike adult hospices, which are focused on end-of-life care, children’s hospices can provide support through much of a child’s life. Children’s hospices encompass much more than clinical care, including family support, recreational support, respite care and so on.
In 2016, as I think the hon. Lady mentioned, the Government published the end-of-life care choice commitment, which encompasses a whole-system approach to transforming end-of-life care, placing the patient, and their choices, needs and preferences, at the heart of planning. That is so important. The Government and NHS England need to collaborate with partners in the voluntary sector, including key hospice and end-of-life care charities, to ensure that the quality and availability of services continues to improve, and that our end-of-life care commitment is delivered.
One key objective is to strengthen the provision of services in the community so that when people are approaching the end of their life, they can be supported to be wherever they choose to be—whether in their home, a hospice or a care home. Work is ongoing nationally—the hon. Lady talked about how we can join it up in local areas—to provide sustainability and transformation partnerships with the tailored information they need to address and enhance the services in their own areas. NHS England has commissioned Hospice UK to undertake an evaluation of the cost-effectiveness of hospices and their interventions in the community. Amazingly, there is very little evidence in this area, but these resources will build on the range of guidance and support provided by NHS England, Public Health England and our charitable partnerships.
It is very important—today’s debate underlines this—to be able to assess how effectively commissioners are working to improve their services, to measure progress and to improve accountability. We will soon have a new indicator in place, which is designed to measure how well patients are supported in the community. This will help to drive improvements in sustainability, which is the big issue in this case, as well as quality and choice. It is very clear that hospice care remains a key part of the Government’s vision for high-quality end-of-life and respite care both in Oxfordshire and throughout the rest of the country.
Question put and agreed to.
Ministerial Correction
(5 years, 11 months ago)
Ministerial CorrectionsRead Full debate Read Hansard Text
Justice
(5 years, 11 months ago)
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Robert Halfon
Dr Lee
Since 2010, the Government have made tackling domestic abuse an absolute priority. Last month, the Prime Minister launched the violence against women and girls strategy at No. 10, and following on from that I attended the first roadshow event, at Edgbaston cricket ground in Birmingham, to meet victims of domestic abuse and campaigners. [Official Report, 24 April 2018, Vol. 639, c. 727.]
Letter of correction from Dr Lee:
An error has been identified in the response I gave to my right hon. Friend the Member for Harlow (Robert Halfon).
The correct response should have been:
Dr Lee
Since 2010, the Government have made tackling domestic abuse an absolute priority. Last month, the Prime Minister launched the transforming the response to domestic abuse consultation at No. 10, and following on from that I attended the first roadshow event, at Edgbaston cricket ground in Birmingham, to meet victims of domestic abuse and campaigners.
Written Statements
Contingent Liability
(5 years, 11 months ago)
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The Parliamentary Under-Secretary of State for Defence (Mr Tobias Ellwood)
I am today laying a departmental minute to advise that the Ministry of Defence (MOD) has received approval in principle from Her Majesty’s Treasury (HMT) to recognise a new contingent liability associated with the NAAFI pension fund. Negotiations are ongoing and the contingent liability will come into force on signature of a pension guarantee.
The departmental minute describes the contingent liability that the MOD will hold as a result of the NAAFI pension guarantee. The maximum contingent liability against the MOD is £223 million. It is usual to allow a period of 14 sitting days prior to accepting a contingent liability, to provide Members of Parliament an opportunity to raise any objections.
NAAFI is a company limited by guarantee controlled by the MOD through the NAAFI council. The guarantee would remove the risk of the MOD, as a result of its relationship with NAAFI, being required by the Pension Regulator to fund all or part of the deficit calculated on a buy-out basis on or before 2021 should NAAFI be wound up. It would save the MOD up to £5 million per annum, this being the current undertaking made annually to NAAFI, to reduce the pension fund deficit. It would also negate the risk of MOD losing the NAAFI’s services in the territories in which it operates creating potential gaps in service affecting MOD personnel.
[HCWS677]
Good School Places
(5 years, 11 months ago)
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The Secretary of State for Education (Damian Hinds)
The Government are committed to creating more good school places through a diverse education system, to ensure that parents have choice and children of all backgrounds have access to the best education. The range of actions we are setting out today helps us to deliver this; extending the opportunity for children, no matter what their background, to access the best education and encouraging cross-sector collaboration in order to raise standards and aspiration for all pupils. This action includes supporting the establishment of new schools and the creation of more good school places, as well as complementary measures in response to the Schools that Work for Everyone consultation. It is intended to incentivise high-performing schools and institutions across the sector to widen their offer to more pupils, and to encourage the sector as a whole to collaborate in order to help all children achieve their potential. I want to see universities, independent schools and state schools working in partnerships that deliver sustainable impact, including by establishing or joining multi-academy trusts where it is beneficial to do so.
The consultation sought views on removing the legislation that inhibit the creation of new selective schools and on lifting the restrictions on the establishment of new faith free schools, and it asked how we could harness the resources and expertise of those in our independent schools and the higher education sector to work in partnership with the state sector. We received several thousand responses, and I was encouraged by the number of those which identified the positive role that selective schools, universities and independent schools do, and could, play in improving educational outcomes across the wider education system. I am building on this through the measures we are setting out today.
The free schools programme is an essential part of delivering good school places where they are needed, and today we are launching Wave 13 for mainstream free schools applications. We are targeting this wave at areas with the lowest educational performance to put free schools in the places most in need of good school places. Free schools have, as do all schools, a role to play in supporting our objectives for integration and community cohesion, and it is important that our free schools programme establishes schools that are inclusive of children of all faith and none. We are retaining the 50% cap on faith-based admissions in free schools.
As previously announced to the House, we will not be enabling the new creation of selective schools, but selective schools play an important role in ensuring our children have access to a good education and have a real impact in helping young people, regardless of their background, fulfil their potential.
To enable existing selective schools to expand and provide more school places where there is local demand, we have today launched the selective schools expansion fund, backed by £50 million in 2018-19. We have also today published a memorandum of understanding with the Grammar School Heads’ Association, which sets out a commitment from the sector to widen access for disadvantaged pupils and to work in partnership with local non-selective schools to improve pupil outcomes locally. I look forward to seeing the action taken by this part of the sector to deliver these commitments.
The whole sector, not just parts of it, has a role to play in supporting the delivery of good school places and in providing the opportunity for all children to raise their aspiration and to achieve their potential. I recognise the role that universities and independent schools can, and in many cases already do, have in this, and I want to see this engagement deepened through greater partnership with the state sector, including working in collaboration in multi-academy trusts, to improve outcomes for pupils, particularly those from disadvantaged backgrounds. I am keen that universities and independent schools with capacity come forward to be involved in school sponsorship and founding free schools, including maths schools. I welcome the joint understanding between the Independent Schools Council and my Department, published today, which sets out how independent schools will look to support these objectives, including how they can help those from disadvantaged backgrounds as well as looked-after children. I will continue to encourage the higher education sector to support these ambitions; to widen access to its institutions for students from under-represented groups and to provide meaningful support to the state sector, and I welcome the action taken to date, including the guidance published in February by the Office for Students on preparing 2019-20 access and participation plans.
I also recognise the role that faith providers play in delivering high-performing schools with excellent standards, and that some schools feel unable to establish new schools through the free schools programme as a result of the restrictions on admissions. As mentioned, we are retaining the 50% faith cap, but we are also developing a capital scheme to support the establishment of new voluntary-aided schools for faith and other providers. This route has always been available but has been little used in recent years. Schools created through this scheme will have the same freedoms as existing voluntary- aided schools, including over their admissions.
In addition to ensuring that we create the places that are needed, we also want to improve our understanding of how the education system is serving children from disadvantaged backgrounds. As part of the consultation, we also sought views on how best we can identify pupils from modest and low incomes in order to improve our understanding of how the education system is serving these children. The findings were fed into the technical consultation Analysing Family Circumstances and Education. The Government response to this technical consultation will be published in due course
This package of reforms will help to ensure we are delivering on our ambition to ensure that there is a good school place for every child, whatever their background, and I look forward to continuing to work with stakeholders across the education sector over this Parliament, as we take forward this commitment.
I will place a copy of the documents published today in the House Libraries.
[HCWS676]
General Affairs Council
(5 years, 11 months ago)
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The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker)
Lord Callanan, Minister of State for Exiting the European Union, has made the following statement:
I will attend the General Affairs Council in Brussels on 14 May 2018 to represent the UK. Until we leave the European Union, we remain committed to fulfilling our rights and obligations as a full member.
The provisional agenda includes:
Annotated draft agenda for the European Council on 28-29 June 2018
Ministers will discuss the draft agenda, which covers: migration; security and defence; jobs, growth and competitiveness; innovation and digital; the multiannual financial framework (MFF); and external relations.
Multiannual financial framework (MFF) post 2020
Ministers will discuss the Commission’s MFF proposal that was released on 2 May. Discussion will focus on the priorities for the budget period 2021-27.
Rule of law in Poland / Article 7(1) TEU reasoned proposal
The Commission will inform Ministers of the latest updates on the rule of law in Poland.
[HCWS679]
Grenfell Tower
(5 years, 11 months ago)
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The Prime Minister (Mrs Theresa May)
The fire in Grenfell Tower was an unimaginable tragedy, and I am determined that justice is done for the victims, survivors, bereaved and the wider community.
On 21 December 2017 I wrote to Sir Martin Moore-Bick, chair of the Grenfell Tower inquiry with my decision not to appoint additional panel members to the inquiry at that time. The Inquiries Act 2005 affords me the power to appoint panel members at any time during the inquiry and I previously indicated my intention to keep the matter under review.
Since December, the inquiry has made significant progress. It has received some 330,000 documents, and expects that figure to grow to 400,000. Sir Martin’s team have conducted a first-stage review of approximately 183,000 documents. The inquiry has confirmed that it is continuing to identify potentially relevant providers of documents as work progresses.
The process of gathering and identifying relevant documents for phase 2 has started in parallel with the phase 1 disclosure exercise. The inquiry has confirmed that it is expecting that a
“significant volume of documentation will be disclosed at this stage”.
Sir Martin has appointed 547 core participants to the inquiry—519 of them individuals from the Grenfell community. This is an unprecedented number.
Given the extent of the tragedy, we should not be surprised by the scale and range of issues that are emerging from the inquiry’s early work.
Phase 2 of the inquiry will be the largest phase in terms of the number of issues to be considered, and it is appropriate for me to reflect now on the two distinct phases of the inquiry’s work and to consider the most appropriate composition of the inquiry panel for phase 2.
To ensure that the inquiry panel itself also has the necessary breadth of skills and diversity of expertise relevant to the broad range of issues to be considered in phase 2, and to best serve the increasing scale and complexity of the inquiry, I have decided to appoint an additional two panel members to support Sir Martin’s chairmanship for phase 2 of the inquiry’s work onwards. I wrote to Sir Martin yesterday, informing him of my decision.
Once suitable panel members have been identified, I will write to Sir Martin again to seek his consent to any appointment, in accordance with section 7(2)(b) of the Inquiries Act 2005.
[HCWS678]
House of Lords
Creditworthiness Assessment Bill [HL]
Friday 11th May 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate Creditworthiness Assessment Bill [HL] 2017-19 View all Creditworthiness Assessment Bill [HL] 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-I(Rev) Revised marshalled list for Committee (PDF, 66KB) - (10 May 2018)
Lord Blencathra
Lord Blencathra (Con)
My Lords, I beg to move the amendment in the name of my noble friend Lord Naseby. He cannot be here today but he has asked me to make it clear that he is not opposed to the principle of this Bill, as am I, but he is worried that it ties the hands of the FCA and is too prescriptive. That is why he seeks to delete the word “must” in the first group of amendments and substitute it with “may”; rather than the instruction to the FCA to “ensure that”, he suggests “consider whether”; and the word “should” in the final amendment in the group is a grammatical change.
In all of these amendments he was guided by the advice of the Consumer Credit Association and I would like to justify the amendments by explaining the CCA’s concerns. I want to set out this properly in this group so that there is no misunderstanding where my noble friend is coming from—the amendments are not a rabid desire for unfettered market forces. These are not so much probing amendments as airing amendments, if your Lordships will accept the term, to air the concerns of the CCA. I know that the noble Lord, Lord Bird, with his tremendous experience in this matter, has considered them and will have impeccable detailed arguments against them. If that is the case, then we will have succeeded in airing these amendments today.
The Consumer Credit Association says that it is not against the general evaluation of credit referencing systems; however, it considers it inappropriate and disproportionate for the law to force firms to use and pay for rental data—or any other specific type of data—in their commercial assessment. It is concerned about what it calls unintended consequences.
At face value, most people would think that requiring lenders to use more data would inevitably lead to better decisions and improved consumer outcomes. However, a number of complexities appear not to have been properly considered, says the Consumer Credit Association. For instance, the rents of just under 4 million households—that is 40% of the rental market—are subsidised via housing benefit to the extent of about £5,000 per household per year. This means that the rent payments in these cases reflect receipt of subsidy rather than a tenant’s propensity to pay. Where the subsidy is paid direct to the landlord, this effect is even more pronounced. In the same vein, non-payment of rent may often reflect delays in paying the benefit rather than the unreliability of the tenant. It also says that well over 1 million tenants are already in arrears on their rent. The proposal would not help this large group; on the contrary, these consumers would find it more difficult to access credit and would therefore become even more financially excluded.
The collection and use of rental data is being marketed to landlords as a means of reducing arrears. The proposal would give unscrupulous landlords who fail to repair their properties increased leverage over tenants, because it would increase the risks for a tenant making any reasonable attempt to withhold or set aside their rent against getting repairs done to the building.
The CCA also says that it is not a given that council tax and rental data would add value for all types of lenders in all situations, yet all firms would be required to pay for this data whether or not they used it. This would be commercially inefficient and the cost would be passed on to consumers through higher prices for credit. It is the CCA’s strong view that firms are the best judges of whether it makes commercial sense for them to subscribe to products such as rental exchange and credit lending. Compelling them by law to do so would, on the other hand, be inappropriate.
Consumer representatives are divided on the potential impacts of the proposal but have flagged the risks of possible harm to some consumers. The Centre for Responsible Credit, for example, has urged caution, because failure to pay rent could lead to the loss of a home, bailiff action and, ultimately, imprisonment. Mainstream lenders are unlikely to consider the data predictive. For many people who miss a rental or council tax payment, it could lead to complete credit exclusion or higher cost credit.
The rollout of universal credit is expected to lead to a significant increase in rent arrears for housing benefit claimants. Similarly, private tenants face rising rents and a freeze on local housing allowance rates. In evidence to the Treasury Select Committee on 28 February this year, both StepChange and Citizens Advice acknowledged the potential negative impact. StepChange said:
“That is fine if the thing that is going to be included is something that you are paying well and on time. If you are behind on your rent and your council tax payment, all that is going to do is enhance the social exclusion for those individuals”.
Matt Upton of Citizens Advice said:
“It is important to acknowledge that it is a double-edged sword. As you say, we see lots of people struggling to pay those bills, and that will not necessarily affect them in a positive way … of the clients we see who struggle to access credit there is a proportion for whom credit referencing is a factor. For a greater proportion it is not the big factor”.
The ambition to increase access to credit for those who rent is laudable. As said by the noble Lord, Lord Bird, I believe that it will help about 80% of tenants, but the CCA says that the proposal’s potential benefits are uncertain, unquantified and currently unsupported by robust independent evidence. My noble friend Lord Naseby thinks that more studies on this must be done but he respects the point of the noble Lord, Lord Bird, that millions of honest, hard-working tenants who pay their rent and council tax would benefit from having their good record of payments used to get a mortgage or cheaper white goods.
I know that the noble Lord, Lord Bird, is keen to pick up the 20% who are in debt and seek ways to get them out of that hole, but my noble friend finds the CCA’s worries and concerns quite persuasive. As I read them, I found them persuasive too. I look forward to the answers of the noble Lord, Lord Bird, and the Minister. All we wanted to do was give these amendments an airing, raise the CCA’s concerns and wait to hear the answer.
Baroness Lister of Burtersett (Lab)
My Lords, I am very supportive of what the noble Lord, Lord Bird, is trying to achieve with the Bill. I have to admit, I was not aware of the issue until I read the debates on it and the Big Issue article he wrote.
I also have some worries about the potential unintended consequences raised by the noble Lord, Lord Blencathra, which I have communicated to the noble Lord, Lord Bird. We have to think about the context: more people are getting into rent arrears, partly because of universal credit and partly because of cuts to the benefits they rely on—in or out of work—at a time of rising rents. We know that council tax arrears are also going up because of what has happened to the council tax support system. This group of people will not be helped by the Bill. That is understandable: the Bill will help those with a good record, which is very useful and important. In his reply, I would like the noble Lord, Lord Bird, to assure the House that things will not rebound on that group and that they will not be in a worse position than they otherwise would have been. It would be helpful to have that assurance on the record.
Baroness Thornton (Lab)
My Lords, I supported the noble Lord, Lord Bird, on Second Reading. This Bill is a small but important public policy step to help bring creditworthiness equality to people who are good payers of rent and credit. The questions asked by my noble friend and the noble Lord, Lord Blencathra, are important.
First, this is not the silver bullet to solve the problems of creditworthiness; it is one thing that might assist. If the Bill passes and lenders are required to incorporate rental data, individuals can opt out of any system of rental payment data sharing. That is the first thing that needs to be put on the record. For most, the inclusion of such data is part of a positive journey to more equal access to affordable credit, although I agree that it is vital to be guided by those who are not as fortunate, including those let down in various ways.
Missed or late payments from a third party, including from the DWP, can already be noted on an individual’s credit file through what is known as a “notice of correction”. This principle is applied to any “notified payment” on an individual’s credit file, including a spousal dispute, incorrect calculation or late payment. Although I agree that it is right to be alive to the laws of unintended consequences, here, the consumer would be in control. That is very important. They can opt out and add notices to their credit file. As we will no doubt be looking into after the APPG inquiry, rental payments and electricity payments are normally the last things that an individual fails to pay. For people in this situation, any previous non-payment of non-essential items will already have affected their credit score, but if we can help these people, we should. I hope that the work being led by John Glen MP and HM Treasury with the noble Lord, Lord Bates—we had a very useful discussion about this—is taking this important consideration into account via the Rent Recognition Challenge. The noble Lord, Lord Bird, will raise this point later with the noble Lord, Lord Bates, and discussions are ongoing.
Reforming the consumer credit world is a big undertaking. Although we may not be able to immediately change someone’s circumstances through this measure, we may be able to better support them and prevent them getting further into the quagmire of problem debt. As the FCA put it to the noble Lord, Lord Bird, before Second Reading, it is important to know who is in trouble to,
“get our arms around them and help them”.
I thought that quote was very appropriate.
Baroness Kramer (LD)
My Lords, I am a real fan of the unamended version of the Bill. Some 40 years ago, when I was in my early 20s and trying to get credit for the first time, I remember the struggles—I think that most women will share them because of the era—of trying to establish any kind of credit history and demonstrate that I was reliable and could manage my finances and the stresses and strains of all of that. I had to go through the most convoluted routes to establish that history. In the Bill, the noble Lord, Lord Bird, has captured the opportunity for many people to use their reliability in making key payments—rent and council tax—to establish credit history. In some ways, the noble Lord, Lord Blencathra, gave the game away when he mentioned, very early, that part of the industry’s resistance is based simply on the cost of gathering this data. I really do not think that that should be an obstacle to so many people who demonstrate in their lives that they are capable of managing money being able to make the decision that they need to access credit and have a reasonable avenue to do so.
Baroness Grender (LD)
My Lords, we on these Benches fully support the Bill as originally drafted and therefore oppose the amendments in group 1 for all the reasons set out so far by other Members. Renters are such a large part of the population now. They have every right to be full participants as consumers. I will give a very specific example: if you are a renter in social housing—78% of renters in social housing pay their rent in full and on time—and you go to buy a washing machine, currently, because you are described as high risk, you will pay between £300 and £1,000 more. Could somebody please explain to me how it is possible that someone can steer clear of arrears when they are in a scenario where, if they are not an owner-occupier, they pay between £300 and £1,000 more for a washing machine? We need to stand firm on the current wording in the Bill and not allow this probing amendment to be aired. A small change in the renting threshold would mean that an additional 4.8 million consumers would be more attracted to mainstream and lower-cost renting.
On arrears, while I understand that this is a point of concern, the whole point of this is to bring people who are renters into the sunlight with information about them. The FCA has also said that it would be good to know who these people are. The alternative is unscrupulous lenders. That is where we drive people to if they are not in the full sunlight of creditworthiness and there is data about them. For those very brief reasons, we urge noble Lords to reject these amendments and to understand that renters are increasing in number. Just today the BBC announced that the proportion of 35 to 54 year-olds who live as private tenants has nearly doubled in 10 years since 2006. The real problem is that the number of people who are renting is doubling but government policy is not keeping pace with this scenario. This very fine Bill tries to do so.
Lord Desai (Lab)
My Lords, I did not speak in the Second Reading debate but I add my support to the Bill sponsored by the noble Lord, Lord Bird, and speak against the amendment. The Second Reading debate showed that several things were being put together and confused. The Bill’s purpose is simple. Obviously the problem is that the poor do not get access to credit, or they do at very high interest rates. That is not the problem that would be solved here. There is also the problem that lots of people are in arrears. If they are they will have a low credit rating. That is often as true for owners. That is not a problem.
The virtue of the Bill is to say that if people are behaving like regular, honest payers of their debt on time they ought to get some sort of compensation or reward for that. If people are paying rent regularly they should be treated on par with those who pay their mortgage regularly. It is such a simple idea that I do not know why people are upset about it. For one thing, the cost of recording payments is much lower than it used to be because they are completely automatic. If we can tell the FCA to persuade people to get into a blockchain system that would be a very efficient way of recording payments, both on the part of the landlord who receives it and the tenant who pays it. It would be very easy to build up a databank of regular payments. From there we could easily get on to some sort of financial app that will give them the credit they deserve.
If we keep the Bill to this particularly narrow but very useful aim we should be very happy to support it. It is required that we do not treat two groups of virtuous people unequally. Those who pay their mortgage on time and those who pay their rent on time should be treated equally because they are both behaving honestly.
Baroness Gardner of Parkes (Con)
My Lords, I listened very carefully to what my noble friend said in introducing the amendment, but I really think it is a very bad amendment. It throws out the whole value of the Bill completely. It would just reinstate the current position. That is not what we are aiming to do. We are aiming to make this possible for people who really have no knowledge or awareness of finance or how to do things. These people would be the very ones to be overlooked with a “may”, because they do not push themselves forward in the same way, yet they need the information and the help, certainly if they have been good payers of rent. I remember when I was looking to get a mortgage for the first house I ever bought—I did not succeed in getting one at the time. The whole house cost £7,500, which in those days was a lot of money. A dental chair-side assistant was paid two pounds 10 shillings a week; a highly skilled receptionist was paid £7. We are talking about a long time ago. Although those were times when I knew nothing whatever about mortgages, these are times when you need help and you want to have your case considered. The more modest you are or willing to be squashed the more you were squashed. It is not a good amendment and I am sorry to say that I cannot support my noble friend on it. I want to retain the status quo in the original wording of the Bill, which would be very much more helpful to those who need help.
Baroness Tyler of Enfield (LD)
My Lords, I also support the Bill in its original unamended form. I will explain briefly why. I apologise that I was unable to be present at Secon I fundamentally believe that there should be parity of treatment between tenants and homeowners d Reading. as others have already said.
I had the privilege of chairing the Lords Select Committee on Financial Exclusion last year, which explored the connection between consumer credit and financial exclusion. We heard that for the many low-income households without financial safeguards, credit, including high-cost, short-term loans, was the only way of keeping on top of family finances for regular or emergency expenditure. As we all know, this phenomenon is particularly prevalent owing to increasingly precarious work and the casualised forms of employment around, meaning that both income and expenditure needs for individuals and families can easily spike without warning.
It was clear to us—the committee heard this very strongly indeed from the evidence—that consumer credit is increasingly the de facto safety net for many people on low incomes to meet essential needs. But we also heard that many credit agencies do not take rent into account. Most social and private renters therefore often have thin credit histories and do not have access to the lower-cost mainstream lending options. What we heard most of all—this is why I feel so strongly on the issue—is that those people are too often forced to turn to high-cost and predatory sources of credit, such as payday lenders or rent-to-own companies.
Frankly, I was shocked when I heard some of the eye-wateringly high forms of interest on credit and how much it can cost for someone who goes to somewhere such as BrightHouse to buy white goods or something like them. They are paying so much over the odds. This directly contributes to the poverty premium, established to be at around £1,000 per year per person, which is paid by poorer people for products and services because of a lack of consumer credit or creditworthiness. As my noble friend Lady Grender said, this particularly affects young people. On Tuesday this week we heard excellent work from the Intergenerational Commission of the Resolution Foundation that showed that one-third of millennials can now expect to be renting for their entire lives. We have to make sure that policy is in line with the reality of how people live their lives.
The chief executive of BrightHouse gave evidence to our committee in 2016 and made the point that its customers had very few options. It is time to give those people some other options and to bring them back into the mainstream. This Bill does that. It can help redress some of the damage of exclusion and insecurity that plagues those struggling to make ends meet and prevent an already disadvantaged Generation Rent falling into further cycles of debt and despair. It really is time that we make rent count and it is long overdue that we do.
Baroness Wheatcroft (Con)
My Lords, I support the Bill in its unamended form and echo what the noble Baroness, Lady Tyler, just said. BrightHouse had to repay £14.8 million to 384,000 clients last year because the Financial Conduct Authority judged its behaviour to have been unreasonable. The Bill makes available more reasonable credit, although not necessarily the cheapest, to all those who rent.
If you do not have a credit record, life is very dangerous. I went on to the web this morning to see quite what finance was available. Fast Loan UK claims to offer:
“Responsible Loans For Everyday Lives”.
The APR it charges on one of its loans is 907%. That does not sound terribly responsible to me.
One source of reasonable credit for people on very low incomes and who need it most is credit unions. We have often spoken in this House about the need for more credit unions. They do a good job, but there are nowhere near enough—there are 384 members of the credit unions association. However, if you search for “credit union loans” on the internet to find out where you might access them, you come across “Credit Union Loans” with an APR of 277.5%. The irresponsible lenders have twigged that the way to get customers is to pretend to be what they are not. They are not responsible lenders. While I support the Bill in its unamended form, I hope that we might encourage the FCA to police this sort of thing rather more carefully.
Lord Hain (Lab)
My Lords, the noble Baroness’s point about credit unions is vital. On my way to London early on a Monday morning, I often see people near Neath station queuing outside their credit union. For them, it is a lifeline.
Lord Best (CB)
My Lords, from the Cross Benches, I support the noble Lord, Lord Bird, and oppose the amendment. I know that the motivations of the noble Lord concern mostly poorer people who need credit to buy white goods and the rest—we have known for many years that the slogan, “The poor pay more”, has been more than true—but I want to refer to those members of Generation Rent who have a chance, albeit a sometimes slim one, of being homeowners and need every help in getting their creditworthiness to the highest-possible status to move from being a tenant to a homeowner, and who are held back by the way in which credit agencies operate. It may be said that the people in Generation Rent do not wish to be homeowners —that they live an “Uber lifestyle” in which you do not own a car; you call Uber. That can apply to many aspects of life. However, surveys continue to show that people wish to be homeowners and for very good reason: home ownership brings with it security, which you do not get in the private rented sector. Even if your tenancy is for a full year, a lot of people find that it is hardly enough to enable you to settle down and, certainly, to bring up a family—we are now seeing ever more families in the rented market.
Home ownership remains an aspiration. Although you might be paying more for a mortgage on day one—if the mortgage company can provide a loan for you—rents will rise roughly at the level of earnings, which is RPI or CPI plus 1% or so, year after year and, in 25 or 30 years, those rents will be enormous. When you come to retire as a tenant, a lifetime of tenancy means having to move home on retirement because your income will drop but your rent will keep rising. Home ownership gives you not just the security of tenure but the financial security of knowing that, although it may take 25 or 35 years, eventually you will be free of debt. Anything that inhibits people from breaking into home ownership, which is what people aspire to, is extremely important.
People say, “Nowadays in London and the south-east, what is the point of talking about home ownership? Prices are so far beyond the reach of those on ordinary incomes this will never happen”. We now have planning consents across London for an enormous number of new apartment blocks. We are seeing come out of the ground 520 apartment blocks of more than 20 storeys for residential use. A massive housebuilding programme is coming down the line. Those who have built those apartment blocks, some of them overseas investors, believe that the starting price will be about £500,000 for the majority of the flats. Someone who is on £50,000 a year—there are not that many people on such a salary—will be able to get a mortgage of £250,000 and not £500,000. The trouble is that we are running out of Russians; we are running out of overseas buyers who are prepared to pay £500,000. I predict that home ownership, which has been in sharp decline, will come back into fashion. The opportunities will recur; prices will have to come down to meet the incomes of those who aspire to own. We should ensure that the credit lines for them are as clear as possible, which is what the noble Lord, Lord Bird, would do.
Lord Davies of Oldham (Lab)
My Lords, I indicated at Second Reading that Her Majesty’s Opposition were very much in favour of this Bill. In a debate in Westminster Hall, the shadow Finance Minister made it clear that he too was in favour of it.
I appreciated the way in which the noble Lord, Lord Blencathra, introduced the amendments—it was more probing than assertive. He will have recognised that representatives of almost every part of the Chamber have been against the amendments and said that the Bill should stay as it is in this crucial provision. The noble Lord, Lord Bird, is more qualified than me to respond to all these points and I shall therefore defer to him, but he must have been encouraged by the enormous support across the Chamber for his Bill as it stands.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I strongly support the Bill in its unamended form and do not support the amendments proposed by the noble Lord, Lord Blencathra. When the noble Lord responds to the debate, can he tell the Committee a little bit more about who the members of the Consumer Credit Association are? I do not know whether BrightHouse is a member of the CCA, but if he could tell us it would be helpful.
I grew up on a council estate in the 1960s and 1970s. Both my parents worked and made sure that they paid their rent—it was the first thing they ever did. My dad had two jobs to ensure that our rent and rates were paid. It is important that people who meet their financial obligations week in, week out have that taken into account when they seek credit. As the noble Lord, Lord Best, said, it is always the poor who pay more, and that is totally unfair—of course, that goes for many things in life. When I go into my local newsagent, I see people queueing up with their little fobs to get their electricity; they pay more. And there are other things—it is just unfair. What the Bill does, on which I congratulate the noble Lord, Lord Bird, is begin to make sure that, if you have a good credit record, that is taken into account properly, so that when you seek credit you can get a fair price and will not always have to pay the most.
The Minister of State, Department for International Development (Lord Bates) (Con)
My Lords, I thank my noble friend Lord Blencathra for moving the amendment, but before I turn to the amendments I shall make some general remarks about the noble Lord, Lord Bird, and his Bill. I should state categorically that the Government’s position is not one of opposition to the purpose he seeks and which so many noble Lords have spoken very powerfully about, which is to ensure that people’s rent or credit history is taken into account when credit decisions are made. The question is about the means by which we achieve that, whether this legislation is the right way to do it and whether we should seek to mandate it.
My noble friends Lady Gardner and Lady Wheatcroft were right to point out that, in effect, the amendments would undermine the Bill because they would give to the Financial Conduct Authority discretion, which in many ways it has at present, to act in these ways should it so wish. The underlying concern is very real, and it is shared by John Glen, the new Economic Secretary to the Treasury, who is working very diligently on this, and it is shared by the Government. We recognise the very real concerns of people on low incomes seeking to access credit.
The report of the committee chaired by the noble Baroness, Lady Tyler, to which the Government have responded, called in its recommendations for having a Minister for financial inclusion, and that is something we have made some progress on. Financial inclusion is very important, and we are building upon a series of measures that we have sought to introduce, starting with the cap on payday lending, to stop the exploitation that was happening, with some of the horrendous interest rates that my noble friend Lady Wheatcroft referred to.
One of the problems was that a lot of the poorest people did not have bank accounts. Therefore, we introduced basic bank accounts, which are fee-free accounts, to get people into that area. Another initiative, which the noble Lord, Lord Desai, talked about, is the use of technology: he referred to blockchain and fintech solutions, which I shall come to shortly. We see great potential in open banking, allowing people to share their bank records online—their payment history, their incomes and outgoings—with people from whom they might be seeking credit. Again, that may be something that helps in that area.
Several noble Lords talked rightly about the appalling way that the poorest in our society are preyed upon by illegal money lending—loan sharks, as they are referred to. In fact, John Glen, the Economic Secretary, announced less than a month ago, I think, that we will be putting another £5.5 million into the fight against illegal loan sharks in England, Scotland, Wales and Northern Ireland.
The noble Lord, Lord Hain—and, I think, the noble Lord, Lord Kennedy—made reference to credit unions. We see credit unions having a huge role to play in this area: that is one reason why the coalition Government introduced significant investment in credit unions and changed the way in which they can operate. Some £38 million was put into helping credit unions to form, to operate and to raise capital: we think they are a crucial part of seeking to tackle this type of exploitation.
Lord Bates
You were? I am sorry.
That is why we now have a Secretary of State for Housing, Communities and Local Government. With all these points I am trying to set out that we do not believe that this Bill is the right way forward because it is too prescriptive in its approach. The amendments cut across the purpose and effect of the Bill so we do not support them either. But we are mindful of the importance of the responsibility to act in this area and we are doing that in a whole range of areas, as I have outlined to the House today.
Lord Kirkhope of Harrogate (Con)
My noble friend Lady Wheatcroft made important remarks about the exorbitant rates charged to people who are often very vulnerable in the impression that they receive when being sold these products. Following those remarks, does my noble friend not agree that the plethora of advertising—particularly on television—which presents itself to these vulnerable people ought to also contain, as in the case of cigarette sales, clear warnings on every such advert that independent advice or advice that might be obtainable through government agencies or others should be taken before anyone commits themselves to such appalling transactions?
Lord Bates
My noble friend is right to draw attention to this. This is why we have the FCA as an independent body to regulate activities in those areas. It is why it took the robust action it did in the case mentioned earlier by the noble Baroness, Lady Wheatcroft.
Lord Campbell of Pittenweem (LD)
I am most grateful to the Minister for giving way, particularly since up to now I have been only a spectator to this legislation. I was particularly taken by the fact that he referred to illegal moneylending and the so-called sharks. It is important to remember that the people who have to go to those sharks cannot hope to achieve any kind of credit from the kinds of operations that the noble Baroness, Lady Wheatcroft, referred to. The loan sharks’ weapons are intimidation, abuse and sometimes violence when it comes to recovery. Illegal moneylending is notoriously difficult to prosecute and therefore I would be grateful to hear that the Government understand that and that the initial sum which has been offered is not the end of the matter.
Lord Bates
Just to update the noble Lord on this point: the money that has been announced will help investigate and prosecute illegal lenders and support victims and those vulnerable to loan sharks. Overall, this is a 16% increase in funding. In England £100,000 seized from loan sharks will be spent on encouraging people at risk of being targeted by loan sharks to join a credit union as an alternative. The quadrupling of funding will help vulnerable consumers access a safer form of finance and get their lives back on track.
Lord Kennedy of Southwark
We often hear that financial institutions are fined for doing things wrong. I know that those fines go into the general fund and are used for various things. One good thing they could be used for would be to support the credit union movement so that it can advertise the alternatives that are around. It is not just the monetary fines, it is the fact that the punishment is advising the public to go elsewhere and that there are cheaper alternatives. Often the credit union movement cannot have adverts in the Tube and on the buses and elsewhere, and it cannot fund phone lines. It would be useful and a good way to deal with fines from financial institutions. Perhaps the Minister will take that back to his colleagues in the Treasury.
Lord Bates
I am very happy to take that back. It is an example of the innovative ideas that we can discuss as alternatives to the measures before us today in terms of legislation. As the noble Lord was speaking, I was thinking of the Libor fines. Those sums were significant —some £600 million or £700 million—but the then Chancellor designated that they would be given to the families of servicemen and the emergency services. There is an example there. My point is that I think there are solutions which would better achieve the effect that the noble Lord, Lord Bird, is rightly trying to achieve.
Baroness Kramer
My Lords, the Minister has been very generous with his time. The virtue of the Bill of the noble Lord, Lord Bird, is its sheer simplicity. So often Governments come up with incredibly fragmented, complex and convoluted attempts to solve a problem. The Minister pointed a moment ago to the cap on payday lending. He will remember that the Government resisted that right to the very last, with exactly the same kinds of arguments about fintech, alternative approaches, different ways of dealing with it, cost and trying to crack a nut with a hammer. But they now laud that cap on payday lending. My suspicion is that if they decided to support the Bill brought forward by the noble Lord, Lord Bird, they would very soon be lauding that solution, its simplicity and its universal application.
Lord Bates
I hear what the noble Baroness says but, as other Members have pointed out in the debate, there is the risk of some unintended consequences as a result of taking this approach. I have also outlined that we are not dismissing the problem, but are seeking an alternative route to solving it which we believe will be more effective and fairer, and avoid some of those unintended consequences. If that turns out not to be the case, of course we are always open to review our position vis-à-vis proposals such as this, and we will continue to act in that way because our first priority is to protect the most vulnerable and help them make a better future for themselves and their families by getting access to home ownership.
Lord Bird (CB)
I really enjoyed that. That was a brilliant array of political parties coming together in the House. I am really glad. I am also glad that the noble Lord, Lord Blencathra, introduced the amendments in his name and that of the noble Lord, Lord Naseby, because they allow us to address the laws of unintended consequences. The noble Baroness, Lady Lister, also raised the question.
I come from a long line of people who did not pay credit. I am not likely in my dotage to be grassing up the people I come from. My mother used to go to a doorstep lender, who would direct her to a particular shop, where we paid through the nose over and again in the 1950s, 1960s and 1970s, until she died in absolute poverty in the late 1970s. I am not going to grass these people up, I assure your Lordships. Actually, I am much more interested in the 15% or 20% of people who are going to find it very difficult to get credit. They are finding it very difficult to get credit now.
Lord Blencathra
My Lords, one of the unintended consequences of moving and speaking to such apparently innocuous amendments was to get a passionate speech from the noble Lord, Lord Bird. It is worth being the sacrificial lamb to hear that incredibly powerful speech.
When I was in my 20s, before I was elected, I was an even more precocious brat than I am now and everything was clear-cut and certain. There was right and wrong, and black and white. Then I became elected and everything became grey. There was no right and wrong anymore; it was all a bit uncertain. When I read the briefing from the CCA I thought, like my noble friend Lord Naseby, that there were some good points in it on some relevant matters, which were worth airing on the Floor of the House. I say to the noble Lord, Lord Kennedy, that I have no idea who the supporters of the CCA are. I did not inquire as I did not think it was relevant. I thought the arguments and worries it had were worth airing, no matter who the backers are.
The only other point I want to pick up is from the noble Baroness, Lady Kramer. I think she was a bit unkind when she said that I gave the game away in saying at the start that the provision would force firms to use and pay for rental data. My motivation was not to flag up concerns about organisations being made to pay but to float some of the worries of unintended consequences. I could retaliate to her by saying that, of course, Experian may make a lot of money out of dealing with the 4 million who have good credit at the moment and are paying their rent on time. The economic argument may cut both ways.
I think that I floated those arguments in less than five minutes and I can be very brief now: I do not think that I have commanded a majority of the House. I can say that to the noble Lord, Lord Davies. Mind you, the Government have not commanded a majority of the House on 14 crucial issues and they were not necessarily wrong either. However, I find the arguments of the noble Lord, Lord Bird, and others who have spoken incredibly persuasive and powerful. We have done our job today. We have given these amendments an airing and heard persuasive arguments against them. I beg leave to withdraw the amendment.
Lord Blencathra
“Review and termination
(1) The FCA must carry out a review of whether rules pursuant to section 1 have been effective in achieving their objectives.(2) The review must be carried out no later than two years after the passing of this Act.(3) As soon as practicable after conducting the review and no later than 6 months after section 1 has been in force for two years, the FCA must—(a) produce a report on the outcome of its review, which must include a recommendation as to whether or not the FCA considers the rules should be extended; and(b) publish the report.(4) Section 1 and rules pursuant to it will cease to have effect unless a resolution to maintain them has been passed by both Houses of Parliament within 6 months of publication of the FCA report.”
Lord Blencathra
My Lords, I can be even briefer in moving and speaking to these amendments. They are fairly self-explanatory, so I do not need to go through them in detail. They would provide for a review of how successful the measures have been and for a sunset clause.
Amendment 4 would ensure that the effectiveness of the rules is assessed after two years of their operation. I think it is important to do that, whether my amendments are accepted or whether the Bill as it stands passes into law. The legislation and the FCA rules would cease to have effect no more than three years after implementation unless, further to the FCA’s report, Parliament approves their continuation. This is a sunset clause, in line with better regulation principles. It is similar to the approach taken in the Domestic Gas and Electricity (Tariff Cap) Bill. If Parliament is to direct an independent regulator such as the FCA to introduce rules on a particular issue, then my noble friend Lord Naseby and I think it reasonable to seek to ensure that if those rules are not having the impact Parliament hoped for, they would cease to have effect.
I see that other noble Lords have tabled amendments which I think do roughly the same thing, unless I have completely misunderstood them. I may have done so and am happy to be corrected. Amendment 4 would insert a simple new clause so that after two years, we would review how well the Bill is working and give Parliament a chance to continue with the rules or not, as the case may be. I beg to move.
Amendment 5 (to Amendment 4)
Baroness Grender
Baroness Grender
My Lords, this is a probing of an airing, to give the technical term. The primary aim of this amendment is to counteract the other amendments tabled by the noble Lords, Lord Naseby and Lord Blencathra. Amendment 5 has been tabled to say, “This needs to happen now”. Its primary point is that the FCA needs to conduct a review and do it now.
I am fully aware that the FCA is at the moment conducting a high-cost credit review. However, its most recent conclusion is that it is,
“prepared to look at solutions designed to increase the choice”,
and encourage the,
“availability of alternatives to high-cost credit”—
in other words, more delay. The main point I want to make as a result of this amendment is that tenants cannot wait any longer. The number of tenants is doubling and government policies are not keeping pace. What we need is the immediate implementation of this, not to wait and have a two-year delay. That is the primary reason for this probing amendment. I thank the noble Lord, Lord Kennedy, the right reverend Prelate the Bishop of St Albans and the noble Baroness, Lady Jones, for supporting this amendment. It is an amendment to an amendment, so if the noble Lord, Lord Blencathra, withdraws his amendment, it falls by the wayside.
When I had my Private Member’s Bill banning tenants’ fees, the Government used the unintended consequences argument, asked whether the problem could be solved via the market and then rightly changed their mind, but it is taking a very long time for this to come through. I sometimes wish that the Prime Minister had put a date on this, rather than on one or two other items that have come before noble Lords this week.
I take the opportunity of this amendment to say to the Minister that I think he should support the Bill and give it a fair wind, and that the Government Benches should give a fair wind to more time for it so that it has its Report and Third Reading stages and is sent to the other place. The number of tenants is increasing enormously and legislation is not keeping pace. The FCA needs to conduct an urgent inquiry into the people who were described in the debate on the previous group of amendments, and for that reason I am attempting to amend the amendment.
Lord Bates
My Lords, I think I can be brief on this group. I thank my noble friend for moving the amendment. This group of amendments concerns the proposal for the Financial Conduct Authority to conduct a review into the experience of rental tenants, with particular regard to their ability to demonstrate their creditworthiness under the existing rules.
I remind the Committee that the FCA recently consulted on proposed changes to its rules and guidance on assessing creditworthiness in consumer credit and has undertaken research on this subject, which carefully considered the factors that firms take into account when making lending decisions. This consultation made direct reference to the current limitations on sharing rental data and the potential for new technology to alleviate them. That is the purpose behind the rent recognition challenge.
Furthermore, in April 2018 the FCA announced that it will conduct a market study on credit information. A consumer’s credit information affects how likely they are to be able to access a range of financial services, including mortgages, loans and credit cards. Consumers may experience harm, such as restricted access to credit, if this information, such as rental payment history, is not shared effectively. The FCA’s aim is to ensure the credit information market works as well as possible to maximise the benefits that it can deliver for consumers. The FCA will also collect evidence to gain a better understanding of the potential for harm in this market and, if necessary, identify remedies. This study will be launched in quarter four of 2018. Finally, the FCA conducts a review of all new interventions as a matter of course and continues to monitor the market for consumer detriment on an ongoing basis.
In conclusion, I put it to the Committee that the need for a further review by the Financial Conduct Authority into this issue is unclear, as the regulator is already carrying out extensive work in this field. The Government’s position on the Creditworthiness Assessment Bill therefore remains unchanged.
Lord Bird
I am pleased that the noble Lord has withdrawn—I feel a great victory. We have to move on to the next stage, and I thank the noble Lord, Lord Bates, for this great opportunity to respond to what we said. I thank the noble Baronesses, Lady Grender and Lady Thornton. It seemed all a bit “spaghetti” just now, so forgive me my trespasses. I will sit down. Thank you very much indeed.
Lord Blencathra
My Lords, this was a simple little amendment asking for a review of the law after a couple of years. I did not understand why the noble Baroness, Lady Grender, needed to amend the amendment. If she did not like what I was seeking to do, she should have just opposed it. I can understand her saying that we cannot have the bit whereby a resolution of Parliament could reject it after a couple of years, but rejecting a review after two years seems a bit unreasonable. I was not seeking to delay the Bill for two years. The amendment merely states—and I happily stand to be corrected—that after the Bill promoted by the noble Lord, Lord Bird, is in force, the FCA should conduct a review after a couple of years. That seems a completely safe and innocuous thing to do. However, I make that point in defence of my amendment. We have been discussing this important Bill and these amendments for just one hour and 10 minutes. That has been a worthwhile way to spend that time. No one on any side has sought to delay the Bill or to wreck it. The noble Lord, Lord McAvoy, will confirm that between 1997 and 2001, if I and my late colleague Eric Forth MP wanted to delay a Bill we could keep going all night, but we are not in that mood and that mode because this is a rather good Bill. I felt the amendments deserved an airing this morning, which they have had.
Refugees (Family Reunion) Bill [HL]
Friday 11th May 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate Refugees (Family Reunion) Bill [HL] 2017-19 View all Refugees (Family Reunion) Bill [HL] 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 12(a) Amendment for Committee (PDF, 44KB) - (17 Jan 2018)
Lord Marlesford
Lord Marlesford (Con)
My Lords, I move this amendment for two reasons. First, I believe that legislation and the privilege that we have in introducing Private Member’s Bills should be taken very seriously. By this I mean that legislation is something that requires precision for implementing the intention. From that, it follows that the intention should be reasonably clear and realistic. In this, legislation is crucially different from debate on resolutions, propositions or aspirations. One can, for example, debate the need for a settlement of the Middle East conflict, but to put forward legislation for that is unlikely to be helpful. It is perfectly reasonable to debate all sorts of views on immigration but proposals to uncap it in an unmeasurable way are really not suited to a declaration of policy, let alone legislation.
I remember as a journalist when I had to attend all the party conferences, in 1976 at the Liberal Party conference—the first conference that the noble Lord, Lord Steel, had when he was leader of the Liberal Party—the Young Liberals, who are always inclined to anarchism, had a resolution that there should be completely free immigration into the UK. The noble Lord rebuked them, saying that if they wanted the party to have those sorts of policies they should find another leader. Perhaps the noble Baroness, Lady Hamwee, was a Young Liberal at that time.
The second reason why I am moving the amendment is to probe into the actual figures. Clause 1 specifies nine categories of family members of an individual who have been granted refugee status whose application to enter or remain in the UK the Secretary of State would be obliged to grant unless the refusal was in the interests of national security. Immigration statistics are always complicated, but at its simplest I would point out that the number of people who have been granted asylum over the 10 years up to 2017—and this is the lowest figure—is 56,921. Each, I suggest, would be likely on average to apply for entry for more than one person. In the ninth category of people in Clause 1(2) are included,
“any dependent relative not otherwise listed in this subsection”,
so it is really pretty open wording. No limit is really envisaged.
I believe that any Government are obliged to limit immigration to a number that can be absorbed into the community. My definition of “absorbed” in this context is for the basic state provision of housing, health services generally and education to be able to be provided without diluting, to an extent that is democratically unacceptable, the standard of living of those already resident in the UK. I recognise at once that my own amendment of up to two family members could well amount to over 100,000, and that would probably be over my own measure of “absorbed”. In that context, I remind your Lordships that the latest 12-month figure for net migration into the UK is 244,000.
In practice the Bill would open the door to large numbers of economic migrants. We know that the potential number of those from Africa alone is measured in the millions and it is not really possible to estimate it. All that can be said is that market forces suggest that migration would continue until the standard of living in the receiving country was no longer high enough to attract economic migrants—thus, the only way of limiting those who want to come is by restricting numbers.
I must mention one other deeply worrying aspect of immigration control in the UK: the capacity of the Home Office to administer it. It is now 12 years since the then Home Secretary, now the noble Lord, Lord Reid of Cardowan, famously declared on 4 May 2006 that the Home Office was “not fit for purpose”. It is sad and deeply worrying that this is clearly still the case, and I am not talking about the deplorable incompetence over the “Empire Windrush”. On that matter, I am wholly on the side of the migrants. In my 20s I was lucky enough, in my first job working for a British chemical company, to be posted for over a year to the Caribbean, living out of a suitcase and travelling from island to island, selling pharmaceuticals to doctors in what was then the British West Indies. I got to know many West Indians and learnt that they have the best sense of humour of any people in the world, and I like and respect them enormously.
I am talking about the fact that it seems that the Home Office immigration service is systemically corrupt. In a Written Answer on 10 January 2012, the Home Office revealed that over the previous five years there had been,
“29 convictions of Home Office staff in connection with their official activities”.—[Official Report, 10/1/12; col. WA36.]
The great majority, nearly all from the immigration department, resulted in prison sentences, two of them for nine years. I fear that that is continuing. As recently as 5 April the Times carried a report of a Home Office official, Mr Shamsu Iqbal, who had been found guilty of falsifying the records of over 400 people, amounting to some £6 million of profit to him and his colleagues. Surely one must ask why the Home Office recruitment and vetting procedure has not been tightened up between the previous figure and today.
At any rate, this Bill is aspirationally attractive, and all of us who have any liberal sensibilities like the idea of families being able to be joined together, although it may well be that better facilities are needed for that purpose. However, the Bill as drafted would make immigration an open season for doubtful and corrupt activities, leaving Ministers little opportunity for questioning what was happening. My amendment would be a small, though probably still too large, step in enabling a practical limit to be imposed. I beg to move.
Baroness Hamwee (LD)
It may be for the convenience of the Committee if I speak at this stage. I thank the noble Lord, Lord Marlesford, for the opportunity to return to the Bill, especially because it enables me to give a plaudit to the Government. The Minister would not have expected that.
We have debated the subject of family reunion on previous occasions, but I think the most recent was during the course of the EU withdrawal Bill, when the Minister responding to the noble Lord, Lord Dubs, and resisting his amendment, did not mention the pull factor, which on every other occasion that I can remember the Government have included in their argument. I do not subscribe to the pull factor, described by the noble Lord, Lord Kerr, as implausible. I hope that that was a significant omission.
Baroness Lister of Burtersett (Lab)
My Lords, I oppose the amendment, which has already been ably opposed by the noble Baroness, Lady Hamwee. I apologise that I could not be here on Second Reading, because I strongly support the Bill. The noble Baroness spoke about the importance of family reunion to integration. I was a member of the inquiry set up by the All-Party Parliamentary Group on Refugees into integration, and I shall say a little about what we found, because I think it is relevant as we discuss the amendment.
The evidence that we received from a wide range of organisations underlined the psychological impact. Here I am talking particularly about the psychological impact on minors who are not allowed to bring any family into the country. Then there are refugees who are here, who have families still in conflict areas or who are still at risk, who are worried sick about what is happening to their families. On the children not allowed to reunite with parents and siblings, Coram Children’s Legal Centre said that it would continue the trauma and suffering of separation and loss. A number of people brought home to us the general impact on integration—that barriers to family reunion create barriers to integration. It is in all our interests that refugees are able fully to integrate into our society. In our findings and recommendations, we argued that,
“successfully being reunited with family members is an important step in helping refugees to integrate”.
We also argued that,
“the definition of family in the Immigration Rules remains very restrictive. Additionally, the lack of family reunion rights for unaccompanied children is a barrier to their successful integration”.
We recommended that they should be allowed to sponsor parents and siblings.
The noble Lord, Lord Marlesford, spoke about statistics and numbers, but we are talking about people. The noble Baroness, Lady Hamwee, rightly said that we were not talking about immigrants—although, of course, migrants are also people. We are talking about refugees, and she gave some very pertinent potential examples. I ask the noble Lord, Lord Marlesford, to think back to when he was an adolescent and put himself in their shoes—a young man who has left his country, for whatever reason, as a refugee. He is here in a strange country, his parents are still in danger, and he has two younger siblings, also in danger. How would he make the choice? Surely, to be asked to make a choice like that as a young person would just increase the psychological suffering. Whoever you chose, you would feel that you had left behind your mother, father, brother or sister, and you would live with the consequences. You would feel guilty about the people you had left behind, rather than those you had been able to bring in. That would increase the psychological trauma and suffering for these young people. We have to try to put ourselves in the shoes of people who are in a really difficult situation. To ask a young person in particular—but anyone, actually—to make that kind of choice about their family as to who they would save or not save is inhumane and cruel.
The Earl of Listowel (CB)
I speak in support of the Bill and against the amendment. I recognise the concerns that the noble Lord, Lord Marlesford, has raised about pressures on public services, but these children will be in care, so they will need a foster carer or perhaps be in a children’s home. If they have a family member with them, the public purse will benefit in that regard.
From a humane point of view, I worked in a hostel once a week over a period of time and saw a young girl from Afghanistan, and she was always quiet and depressed. She spoke no English—she spoke only a very limited dialect of her language, and the only other speaker was somewhere way off in the East End, so she was very isolated. One evening I arrived and she was in tears, because she had had news that the town that her parents lived in was being shelled, and she was concerned about them. The examples given about the hardship and emotional trauma for these young people ring very true to me. Simply from a humane point of view, anything that can be done to reunite these children and young people with their parents has to be welcomed, so I support the Bill.
Lord Kerr of Kinlochard (CB)
I am a little surprised at the amendment, because I have great respect for the noble Lord, Lord Marlesford, and have enjoyed working on committees with him in the past. I think that his concerns are exaggerated.
The noble Baroness, Lady Hamwee, has covered all the points, and I stress just two. First, the category that we are talking about is very limited—it is self-limited. We are talking about only those granted refugee status or humanitarian protection under the Immigration Rules; in other words, we are not talking about economic migrants or anybody here illegally. We are talking about a very small category, clearly defined in Clause 1(1).
Baroness Garden of Frognal (LD)
I speak briefly in support of my noble friend’s Bill and against the amendment proposed by the noble Lord, Lord Marlesford. The Bill is about united families and his amendment would see families split in different ways. The Bill really does not open the floodgates to hordes of ravening immigrants. As my noble friend set out, we are talking about small numbers, and this is a small and measured way of helping refugee families in trouble and distress to be together. We have had some excellent briefings from SOS Children’s Villages, which says:
“Children who have been separated from their families are some of the most vulnerable, having lost the people primarily responsible for making decisions on their behalf, guaranteeing their safety and supporting their development to adulthood”.
It is both heartening and heart-rending to read the tales of some of those children, who have battled against the odds with courage and determination and, for the small numbers involved, the measures in this Bill could be transformational.
This is a humanitarian Bill in the best traditions of the society that we should aspire to be, which welcomes those in need, cares for refugees and offers hope and support, particularly for children who have already suffered so much. These are people who can and will contribute to the community; in the past, these are the very people who have contributed not only to the community but indeed to the economy. It is the right and moral way, and I urge the Government to support the Bill unamended as it passes through the House.
Lord Dubs (Lab)
I am very sorry that, unavoidably, I was unable to be here for Second Reading, and I shall not make a Second Reading speech now. Obviously, I am not happy about the amendment. As for the criticisms made by the noble Lord of the Home Office, I think that the Home Office will have to sort that one out. I am not sure that any of us is really qualified to know very much about the internal workings of the Home Office, except the Minister—so she can deal with that.
The amendment, if passed, could have very sad consequences for a small number of people. I said to a Syrian child refugee, “What about your family?” I speak from memory, but this was roughly the situation. He said that he had a father and sibling somewhere in Turkey and a mother still in Syria. What would happen if we said to him that he should choose between those three? It would be an impossible and agonising decision. We cannot impose that on anybody. It would break the young man’s heart. How could we advise him? We could not—we could only say, “This is a desperately unfortunate situation”. I am sure that the noble Lord, Lord Marlesford, does not mean it to have that consequence, but I suggest that it would. I am not happy about the amendment and hope that the House rejects it.
Baroness Sheehan (LD)
My Lords, I rise in support of my noble friend Lady Hamwee and against the amendment by the noble Lord, Lord Marlesford. I have two things to say, the first of which is about pull factors. I hope, as other noble Lords have said, that we will not hear much more about them. I want to add a little bit more evidence and maybe give some succour to the noble Lord, Lord Marlesford, with what I am about to say. The EU’s family reunion directive, passed in 1999, has been signed up to by all member states apart from Britain, Denmark and Ireland. Ireland in fact went ahead and put the measures into primary legislation domestically, and it is now only Britain and Denmark that remain outside that directive. The evidence is that, over the last 10 years, those countries that have signed it have not seen a spike in family reunion applicants. I hope that will put the noble Lord’s concerns to rest a little.
I want to say a bit about the benefits of migration because, too often, we have these debates and we all defend migration, but we should talk a little about what migrants do for us. I will use the word “migrants”, because that was the term used in the speech by the noble Lord, Lord Marlesford. Researchers who study human migration say that countries fear that letting in some refugees will encourage more and that migrants will be an economic burden. Yet the evidence shows that both beliefs are false. Even without a worker shortage, migrants need not be a burden. On 4 September 2015, the World Bank, the UN International Labour Organization and the OECD club of rich countries issued a report concluding that,
“in most countries, migrants pay more in taxes and social contributions than they receive”.
In a study in 2014, researchers at University College London found that both European and non-European immigrants to the UK more than paid their way. Non-Europeans living in the UK since 1995 brought £35 billion worth of education with them. Those who arrived between 2000 and 2011 were less likely than native British people to be on state benefits, no more likely to live in social housing and contributed a net £5 billion in taxes during that period.
So the question is, why do doors stay shut? The reasons, say the researchers, are not economic, but fear of the cultural impact of foreigners. But all the evidence shows that, with a positive attitude in communities and good leadership, the host community and migrants both benefit. I will just end by saying that there are articles in Psychology Today that show the psychological benefits to the host communities of having a welcoming attitude to migrants. I also cite the example of a small, remote island in Finland, called Nagu, which welcomed refugees. The residents there are very grateful to the refugees for enriching their lives.
The Lord Bishop of Chester
My Lords, I am in general agreement with those who have spoken against the amendment by the noble Lord, Lord Marlesford, which is, I think, draconian in the way it is framed. I would like some comment, however, on the scope of Clause 1(2), where nephews and nieces and so on are included. The number that could be involved is really quite large and may make this Bill’s passage more difficult if it is expressed in that large way. The Secretary of State is required to grant an application other than on grounds of national security. I just suggest that the best is sometimes the enemy of the good, and there is just a danger that, with the Bill as framed, you could have 20 or so family members making an application. In the realpolitik of our society, that is just unlikely to get through. On the other hand, I think that the principle of hospitality and welcome needs strongly to be affirmed. The rather narrow amendment here is resisted, but I do have some hesitations about the breadth of the Bill itself.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I rise to make clear that I do not support the amendment moved by the noble Lord, Lord Marlesford. Though I like and respect the noble Lord very much, I cannot support him in his amendment today. I very much support the contribution from the noble Baroness, Lady Hamwee, who set out very carefully and clearly why the amendment should be resisted, as did all other noble Lords who have spoken, including my noble friends Lady Lister of Burtersett and Lord Dubs.
I would understand the speech by the noble Lord, Lord Marlesford, a bit more if this Bill were saying that any refugee granted status to stay in this country could bring family members to the UK, but it does not say that at all. It says that they may make an application. I am sure that the noble Baroness, Lady Williams of Trafford, will assure the House that when somebody makes an application to the Home Office, there are some very robust procedures in place. It is not a free for all. I am sure that she will tell the House that, as she will be very well aware of what you have to go through to get an application to enter this country. We discuss matters about the House Office almost every week in this House, and sometimes many times a day. We do not normally say that it is a free for all at the Home Office and that it is far too lenient; we often say quite the contrary about how it operates and can sometimes be very frustrated about the environment at the Home Office, which we think can sometimes be a bit harsh in how it deals with people. I am sure that the Minister will mention more on that.
I also very much agree with the comments of the noble Baroness, Lady Sheehan, who talked about migrants. I am very well aware that the Minister is a migrant herself; she came from Ireland as a child. I am the eldest son of a migrant; my parents also came from Ireland to find work here. I am sure that we would find that many others here are the children or grandchildren of migrants. Migrants have made a very great contribution to our country. They have done wonderful things here and made our country a much better place. I therefore do not support the amendment today, and I hope that the noble Lord will withdraw it in due course.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I start by thanking the noble Baroness, Lady Hamwee, for her continued, insistent interest and support for changes to the family reunion immigration rules and I reassure noble Lords that I have listened, and will continue to listen, to the many thoughtful and very compassionate contributions that we hear in this House every day. I would also like to acknowledge the work of the NGOs whose support of the proposed changes have provided valuable insight and constructive challenge on this issue. It should go without saying, but I will repeat it because it is a crucial point: individuals and communities—which of course includes refugees—who have made their home here over generations have always been and will continue to be welcome. They provide an invaluable contribution to our social, cultural and economic life.
It is worth briefly reflecting on how much this Government have done, particularly in the region, but also here at home, to help refugees from countries such as Syria. We are on track to resettle 20,000 refugees from Syria and a further 3,000 children and families from the wider MENA region. We have also committed £2.46 billion of humanitarian aid to the Syrian conflict. I also want to provide some context. The noble Baronesses, Lady Hamwee and Lady Lister, said that we have had few grants of leave outside of the rules. If I go back to 2016, after listening to concerns about how the provisions for leave outside the rules operated, we introduced changes to clarify our guidance. This now makes clear that the policy will apply to adult dependent sons or daughters aged over 18 living in conflict zones. Around 65 visas for leave outside of the rules have been granted over the last three years. We are working to ensure that this policy works as well as possible in practice. In 2010, the UK resettled around 750 recognised refugees. Last year alone, we provided 6,000 people with protection under our resettlement schemes, around half of whom were children. These are the most vulnerable families, who have been safely and securely resettled and supported in rebuilding their lives. As the noble Baroness, Lady Lister, and other noble Lords said, these are human beings and not numbers.
Baroness Hussein-Ece (LD)
I have been listening carefully. Is the Minister aware that Germany has admitted 1 million Syrian refugees and has just passed legislation very similar to that put before us today by my noble friend Lady Hamwee? Crime there has gone down, unemployment has gone right down and its economy is booming. How does the Minister respond to that?
Baroness Williams of Trafford
I recognise totally what the noble Baroness says and what Germany has done. It has caused problems in Germany, and what the Government of the time decided to do has caused integration challenges. But I recognise exactly what the noble Baroness says. I have not mentioned crime or unemployment today; I was simply talking about infrastructure such as public services. I was not going there and I would not want to. I know that the noble Baroness is a very compassionate person indeed.
I have lost my place. I was talking about the extended family reunion rights for British citizens. I will now move on to another point, which I have also lost. I am very glad that the noble Lord is about to intervene.
Lord Kennedy of Southwark
The Minister said a moment ago that the Bill would allow many thousands of people to come to the country, but all it does is to allow them to make an application. There is quite a distinction between those two things. Perhaps she could confirm that.
Baroness Williams of Trafford
The noble Lord is absolutely right, and I also said that it is difficult to estimate. Of course people could make applications, but they would be doing so under the legislation we have passed. However, I made the point that it is quite difficult to get exact numbers.
I recognise the potential implications of the Bill highlighted by the amendment tabled by my noble friend Lord Marlesford, which would seek to limit the number of family members that could be granted leave under the Bill to a maximum of two. It is a recognition of the wider impacts the Bill may have. As I think every noble Lord mentioned, it could have a divisive effect on families and on the people in the position of having to make those awful decisions. While the current provisions are more narrowly defined in terms of family members who may qualify, this is not limited to a specific number of individuals. I think that is why noble Lords probably took issue with my noble friend’s amendment. This clearly demonstrates the complexities around this issue and why it requires careful consideration, which is what the Government are doing.
My noble friend Lord Marlesford talked about the Home Office being corrupt, which is quite a strong allegation. He then moved on to the capacity of the Home Office—what has the Home Office done to improve vetting and recruitment procedures? The noble Lord, Lord Kennedy, helpfully pointed out that for anyone to get through the Home Office procedures involves a very rigorous process, which is why I am at this Dispatch Box so much, now almost every day of the week, including Friday. As regards vetting in the Home Office, it follows the Cabinet Office vetting process, which is standard across Whitehall. All Home Office staff are bound to adhere to the Civil Service Code, and the Home Office is determined to uphold the highest standards for our staff.
We have all seen the tragic consequences for people, and particularly the terrible sight of unaccompanied children who take dangerous journeys, most likely in the hands of traffickers. While I fully commend its intention, the Bill is likely to place in danger an increased number of those people it seeks to protect. I have not mentioned the P word, because I do not want to dismay the noble Baroness or the noble Lord, but I hope that the noble Baroness will recognise the point I am making. Rather than refugees seeking protection in the first safe country they reach, the Bill creates a perverse incentive for them to make perilous journeys to the UK in the hope of subsequently bringing their family here. We must ensure that we do not put more children in harm’s way, and we are doing this already through resettlement of children and their families direct from the region. We know that policy changes can and do have an impact—
Lord Kerr of Kinlochard
The Minister got just too close to mentioning the unmentionable. Is it really plausible that, say in Idlib, if it is under siege in six weeks’ time, the family sits around the dining table, pick a child and tell it that it must set off across the battle lines and the Mediterranean, to try to get into England so that it can then pull the family into England? That is implausible. We are talking about refugee reunion and about children. We really must stop talking about this wildly implausible pull factor. They come here to escape being killed; they do not come here in order to become a magnet for the rest of the family.
Baroness Williams of Trafford
I do not dispute a word of what the noble Lord says—that people’s intention in coming here is to flee the terrible things happening in their countries. I am saying that we have all seen the horrible pictures of children who have made these journeys and have either died or got themselves into terrible danger on the way. We talk about this often.
Baroness Sheehan
Is the Minister aware that the independent inquiry of the Human Trafficking Foundation in July last year found exactly the reverse of what she said? It found that the fewer safe and legal routes there are to process asylum seekers and refugees, the more power the smugglers have.
Baroness Williams of Trafford
I am slightly confused by what the noble Baroness is saying. I do not think that anyone would dispute that a child sent across the Mediterranean is very vulnerable to traffickers. I will give an example of what I mean by that. Immediately following the recent UK-France Sandhurst summit and the press reports suggesting a further transfer of minors to the UK, the number of children arriving in Calais more than doubled, from 59 to 137. There is no disputing that children who travel alone like that are in danger from all sorts of unintended consequences of our wanting to give them support and refuge. Although civil war or persecution is the absolute deciding factor in whether an individual flees their country, as the noble Lord, Lord Kerr, said, it does not explain the decisions made in undertaking dangerous secondary movements.
This Government have invested significantly in supporting the most vulnerable refugees through our resettlement programmes. These are safe and legal routes to protection and are designed to keep families together without the need for migrants to embark on dangerous journeys or to put their children in the hands of criminals who exploit them. We should not create potentially perverse incentives outside of those schemes, as this Bill proposes.
Nor must we lose sight of how the family reunion policy fits within wider asylum and resettlement work. I am glad to see the noble Lord, Lord Dubs, in his place, because that includes implementing Section 67 of the Immigration Act 2016. The Government have committed to the transfer of 480 unaccompanied children from Europe to the UK under Section 67. Over 220 children are already here and transfers are ongoing. This is in addition to current commitments under the Dublin regulation. Work continues with member states and relevant partners to ensure that children with qualifying family in the UK can be transferred quickly and safely to have their asylum claim determined in the UK.
There has been much debate about what will happen after we leave the EU if the family reunification provisions under the Dublin regulation are no longer available. Retaining the family reunification provisions of the Dublin regulation post EU exit was the subject of the recent amendment to the European Union (Withdrawal) Bill tabled by the noble Lord, Lord Dubs. I state again that the Dublin regulation does not confer immigration status; it is a mechanism for deciding the member state responsible for considering an asylum claim. Anyone transferred under the Dublin regulation will be expected to leave the UK if they are found not to need protection. The family reunion rules will continue to enable immediate family members to reunite safely with their loved ones in the UK, regardless of the country in which those family members are based.
Finally, the Bill makes provision for legal aid to be reinstated for family reunion cases. The Government are currently undertaking a comprehensive review of legal aid reforms, including an assessment of the changes to the scope of legal aid for immigration cases. The review will report later this year. It is important that we do not introduce legislation that pre-empts the outcome of that review, which needs to run its course.
Baroness Hamwee
Before the noble Lord responds, this is not the moment to continue the debate, although I could take issue with a number of the Minister’s comments. However, criticism has been made of the fact that there is no estimate of numbers or costs in the Bill. I accept that there is no impact assessment, and it would be difficult for someone like me to undertake one, but if that is an offer from the Minister for me to go into the Home Office and spend time with officials to work on the detail, I would be absolutely delighted to do so.
The Earl of Listowel
My Lords, again before the noble Lord responds, is it not right to pay tribute to the caseworkers? This debate has highlighted the immense challenges they face in making their judgments. Does the Minister not agree that it is right for us to pay great tribute to their work? Can she assure the Committee that, when she looks at capacity in the Home Office, she will ensure that those caseworkers get all the emotional support and time they need to reflect on their work so that it does not overburden them, perhaps contributing to the poor outcomes from casework that we occasionally see?
Baroness Williams of Trafford
My Lords, the Home Office often comes in for negative comments, so it is always nice to hear noble Lords pay tribute to the dedicated staff who work tirelessly for the right reasons and for the right outcomes for the people who apply. I look forward to the analysis of the noble Baroness, Lady Hamwee.
Lord Marlesford
My Lords, I thank all noble Lords who have taken part in the debate. I think we all agree that underlying the Bill are the humane intentions which we all support. Every example given was fully valid and I support them all. However, the fact remains that the Bill removes from the Home Office the powers and opportunities to control the total number of people who come into the country. I have indicated that I have a pretty low opinion of the Home Office’s capacity in this respect, but the right reverend Prelate put his finger on this point, which I mentioned in my speech: the only ground on which an application can be stopped by the Secretary of State is that of national security.
As the noble Lord, Lord Kerr, said, applications are available, but if there is no government check—the Bill explicitly and deliberately removes the government check—and if the Government do not have the ability to make the final decision, which of course is subject to every sort of lobbying and debate and all the rest of it, you are abrogating the overall control of immigration which I believe the people of this country would always insist upon. That is the fundamental error of the Bill.
My amendment was merely intended to draw attention to this and to reduce the possible number. I have said already that I thought 100,000 would probably be too many to be allowed in, but the Government must take on more clearly a policy on how many people and in what circumstances because I am by no means sure. The Government have always said that they want the brightest and the best, and that must be right for the country. None the less, there are strong humanitarian arguments for individual refugees to be able to be reunited in this country with their families. But it is about the way in which that is done and the avoidance of it being sidetracked by those with less creditable motives. It is important that we safeguard against that, and the only people who can do so are the Government and the Home Secretary.
There is a deep flaw in the Bill, but, equally, it has been worth while, and I hope that this has been a worthwhile debate. I beg leave to withdraw my amendment.
Divorce (Financial Provision) Bill [HL]
Friday 11th May 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate Divorce (Financial Provision) Bill [HL] 2017-19 View all Divorce (Financial Provision) Bill [HL] 2017-19 Debates Read Hansard Text
Baroness Deech (CB)
My Lords, this Bill would replace the current system for splitting money on divorce, a system that is past its sell-by date, with a tried and tested system modelled on that used in Scotland and in most of Europe and North America.
In the world beyond this Chamber, family law and its shortcomings are daily fare. I am a devotee of “The Archers” and regard its storylines as good indicators of common concerns. For those of your Lordships who do not listen, I should explain that the following issues are ongoing: a no-fault divorce between Alistair and Shula; surrogacy for Ian and Adam; residence rights for Will; marriage versus cohabitation for Fallon and Harrison; and a prenup for Justin and Lilian. It is all over the television. The Times has taken up the causes: no-fault, money, prenups and cohabitation.
The outgoing President of the Family Division, Sir James Munby, has allowed me to say that he favours reform. The noble and learned Lord, Lord Mackay, the noble Baroness, Lady O’Cathain, and the noble Lord, Lord Grade, do too, although they are unable to be here.
Several judges of the Supreme Court are family law specialists and their decisions regularly, but sadly, make headlines. I say “sadly” because some obvious outcomes, such as one spouse not having a lifelong claim to a fixed share of the earnings of the other ex-spouse, are costing hundreds of thousands of pounds to determine. Other factual situations present themselves, such as no-fault divorce and how many times a former spouse can come back for more, which one would have thought were resolved but which were not, and the outcome is anyone’s guess. But the Government are doing nothing and, for decades, have not taken up pressing issues in family law apart from procedural ones. That is shameful, not just because the lives of ordinary couples and their children are laid waste by the costs and the bitterness and uncertainty of the law but because it has gone so far as to offend against the principles of the rule of law, as expounded by the late Lord Bingham.
In my speeches on this Bill, most recently just over a year ago, I have set out the relevant uncertainty, unpredictability and inaccessibility of the law, largely judge-made, despite the existence of a statute of 40 years ago intended to clarify matters. But the rule of law requires that the law be accessible, intelligible, clear and predictable. Issues should be resolved by application of the law and not by discretion. Means must be provided for resolving disputes without prohibitive cost or undue delay. The procedures should be fair. The current law, based on Section 25 of the Matrimonial Causes Act and as embroidered by judges for over 40 years, fails all those tests.
It is nothing to be proud of that the wives of wealthy men come to London from all over the world for a generous settlement, giving the city the title of “divorce capital of the world”. It is nothing to be proud of that, in many cases, the legal costs of resolving the finances eat up half or more of the entire assets available to a couple, depriving their children of what should be their future stability. In a recent case about a £30,000 annual award to a child, £295,000 of costs were accrued. I note also the case where the husband was awarded £50,000 but was left with a bill of £490,000 in costs, and the case where the costs swallowed up the entire assets.
It is nothing to be proud of that judge-made principles, as they strive to keep up with their view of societal changes, swerve from compensation to need to fair sharing, so that proper advice and predictability fly out of the window, as the noble Baroness, Lady Shackleton, will tell you. As lawyers grope for guidance, statements in judgments are parsed as if they were statutory provisions, with surprising outcomes. It is nothing to be proud of that financial issues may take years to resolve after the divorce is finalised and that an ex-spouse can return to court for a fresh award decades after the divorce.
It is nothing to be proud of that children are not only deprived by this state of affairs but that basic child maintenance is not well enforced and that the statutes that might give children more protection are not fully explored. My Bill would apply to all marriages and civil partnerships. It does not seek to change the law on child support, which remains vital and underenforced. I wish that the lawyers who campaign for no-fault divorce would campaign as strenuously for child support. My Bill would strengthen the position of children by requiring consideration of children’s housing to the age of 21, bearing in mind the increased rates of higher education and staying at home. It would make prenuptial and post-nuptial agreements binding as long as the parties had independent legal advice.
We hear much now about the desirability of no-fault divorce. That idea—a quick divorce without attribution of blame—places squarely on the table two irreconcilable notions. What is the point of fault-free divorce if the couple then spend years fighting over their money, with much more bitterness, expense, waste and loss to their children than ever was caused by the actual divorce petition? If it is sensible to recognise that a marriage may break down without fault, what rationale can there be for expecting one of the former spouses to continue to maintain the other for years and to give him or her half their pension and sometimes the home? The only rationale is, quite rightly, protection of the children.
As the Law Commission said in its 2012 report on this issue:
“The situation facing family judges has therefore been likened to that of … a bus driver who is given a large number of instructions about how to drive the bus, and the authority to do various actions such as turning left or right. There is also the occasional advice or correction offered by three senior drivers. The one piece of information which he or she is not given is where to take the bus. All he or she is told is that the driver is required to drive to a reasonable destination”.
The Law Commission recommended that prenuptial agreements should be binding and that the old bias against them was ended in the Supreme Court decision in Granatino. However, so many conditions are attached to their binding nature by the Supreme Court that couples now spend a fortune on litigating over whether or not the prenuptial agreement is in fact binding. A recent example is the case of BN v MA, where the prenup was upheld but the costs of doing so were £400,000, and another where it was largely overridden so that the husband was awarded £1.7 million for a house but the legal costs were also £1.7 million.
My Bill would put prenups on a statutory footing, with few conditions except those that normally apply to avoid fraud and duress in contracts. It may not quickly become the custom in this country for engaged couples to enter into such a contract, although it is de rigueur in most of continental Europe. For older couples who would like to enter a second marriage but are fearful that if the second marriage went wrong the children of the first marriage would lose out to the second husband, the ability to sign a prenup would allow them to marry with reassurance that the children would be protected and would not lose out.
Countries which allow prenups do not have higher divorce rates than we do, an argument put forward by those opposed to them. It seems to make little difference. Giving them statutory force would have the advantages of improved predictability of outcomes, meeting public expectations that they can make their own arrangements and maybe encouraging marriage for those who, with past bad divorce experience, may be reluctant to commit again to a potentially financially ruinous legal situation.
The main provision of my Bill is that it would introduce the well-known system elsewhere in the world of a fair starting point as the equal division of all the property and pensions acquired by the couple after marriage. It would exclude premarital assets, inheritances and gifts. There is flexibility in the Bill to allow the house to be retained for the accommodation of, for example, a mother and children, and to disentangle the situation where premarital assets are used to buy and improve marital property.
The noble and learned Lord, Lord Hope, criticised the Scottish law in the case of Miller as lacking inflexibility, but the recent report on the Scottish law by the University of Glasgow has reassured him that there is enough flexibility but still enough certainty. Provision is made in my Bill for maintenance of up to five years unless there is exceptional hardship, following Scotland and most of the rest of the world. Property, pensions and lump sums may provide more efficiently for the support of a woman who cannot or will not work.
This brings us to the nub of the changes in society which this Bill is trying to address. The law for centuries has seen all women as dependants, certainly once they marry, tied to their husband’s financial situation and social status for ever, regardless of the nature of the breakdown or her own capacity. In brief—noble Lords know the social changes all too well—72% of mothers go to work, according to the Institute of Fiscal Studies, whereas in 1975 only half did. Women’s education and career prospects, equal opportunities and pay law have driven this, and two-earning couples have become the norm.
However, to the law, this is unknown. There is a thesis to be written about the absence of the modern working woman from family law. Women with no children and with grown-up children are still treated as incapable by many of our judges, although the recent judgments of younger judges show a growing realisation of the change. Those younger judges need encouragement to stick to their guns with a change in the law.
There are those who will say that women suffer in the workplace and from childcare, and that men should continue to make it up to them for the rest of their lives. As long as judges accept as reasonable the demands of some women on divorce for millions and of many more for ongoing lifetime payments, then subconsciously or consciously male employers will never take women as seriously in the workplace as they should. The majority of women who work feel downgraded and belittled by the alleged helplessness and unreasonable demands made by some. Extreme handouts to divorced wives do nothing to help unmarried women and single mothers who are making their own way in the workplace. Women are not all victims, they are autonomous, and sometimes they have to make over property to less well-off husbands on divorce regardless of behaviour. Of course the law is equal, but the attitude of judges is not.
This brings me to the objections to any reform at all by the family law Bar and the objections to some reforms by solicitors. It is similar to the lawyers’ opposition to the Civil Liability Bill. As Mandy Rice-Davies so famously said, “They would, wouldn’t they?” Or, as an experienced judge put it to me, the Bar is blinded by its own self-interest. It is wedded to the system, as are some judges, because it believes that it is doing a good job. It is, within existing parameters, but at a terrible cost, for hundreds of thousands of pounds—which divorcing couples need—are spent on legal costs. The Bar objects to any changes because most couples reach an agreement without going to court, at great cost and because the expense of seeking what they see as fair is prohibitive. In the local family court, I have seen those poor couples who have no legal aid and representation on only one side. “That’s £50,000 costs chalked up already,” says the genuinely helpful judge, “and if you cannot reach accord today, in the little room at the end of the corridor, it’ll be another £25,000 if you go to another judge for further determination”. They settle because of the unpredictability of the next judge, as the noble Baroness, Lady Shackleton, will tell you.
Another report on the Scottish system, which forms the basis of my Bill, points to a far higher rate of negotiated outcome there because of clear guidelines. The family law Bar points to the guidance for such couples, issued by the Family Justice Council. I have read all 72 pages of it. It would make a great graduate thesis on the law but I have never seen it cited in a judgment and it is far too complicated for a couple to use, setting out, as it does, all the twists and turns the law has taken recently. The Bar ignores the empirical evidence of the more successful and less degrading operation of the law in other countries and the fact that no action has been taken on the substance of the Law Commission proposals. What the Bar sees as fair is a far cry from what ordinary litigants see as fair and the Bar makes the assumption that I have already criticised of women as victims.
The Bill offers an off-the-peg solution. It will end the attitude of some judges that, since we all look better in Savile Row suits, there must be no Marks & Spencer ready-made. The Scottish law, very like European law—with which alignment is arguably more desirable than ever—has been reviewed after 30 years of operation. The Family Law (Scotland) Act 1985 was based on the work of the Scottish law commissioner, Eric Clive; Scotland has no-fault divorce and cohabitation law. The recent report, Built to Last, gives Scottish law a glowing review; in particular, it spells out how much better it is than English law—a view widely shared except by the lawyers at the English Bar. I give you just two comments from the report. First, the law in Scotland,
“has been successful in achieving one of its aims which was to encourage parties to reach their own agreements about the financial and property consequences of divorce”.
Secondly:
“English law is broken and needs mending: but ours doesn’t … generally speaking, it’s a gem”.
I am offering that gem, which will reduce trauma for children and the need to go to court, lower costs, put less stress on couples and enable a fairer outcome, recognising partnership in marriage. For the first time, it would recognise equality of spouses, rather than subjecting their claims to the view taken of them by the judge. The wife would no longer be a supplicant but a partner ending a partnership on an equal footing. Above all, it would be the result of democratic debate here for the first time in decades, and take account of public opinion—I cannot tell you how many sad letters I get about this—and the changing nature of marriage.
It is a disgraceful state of affairs when the Government —this one and previous ones—neglect family law, which affects hundreds of thousands of people and their children every year. I know that the Bill as drafted is not as satisfactory as it should be, being a Private Member’s Bill—I must thank the noble and learned Lord, Lord Walker, for helping me so much—but its principles are clear. It has support from around the House. I say this to the Government: do something. Take this over. It is a vote winner and it is the right thing to do. I beg to move.
Lord Walker of Gestingthorpe (CB)
My Lords, I speak in support of the Bill. I will be reasonably brief because it has been described so thoroughly by the noble Baroness, Lady Deech. She has shown great determination and perseverance with it. In fact, it is virtually identical to a Bill that passed through all its stages in this House in the last Parliament but, sadly, did not have time to make any progress in the other place.
It is a remarkable fact that in these days of constant change—in economics, social life and fiscal and other fields—the law on financial provision on divorce is still regulated, in substance, by Section 25 of the Matrimonial Causes Act 1973, a statute passed more than a generation ago. Section 25(1) gives priority to the claims of minor children of the family; no one seeks to alter that primary need in any way. The trouble is that Section 25(2) contains the other main guidance from Parliament, given in eight paragraphs with no sort of hierarchy or pecking order between them. They are eight remarkably dissimilar paragraphs. Some are totally unsurprising, for instance paragraph (d), concerning,
“the age of each party to the marriage and the duration of the marriage”.
Others are more debatable, for instance paragraph (g), which is concerned with,
“the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it”.
Some are simply the starting point of what may be an almost endless debate, notably paragraph (f), concerning,
“the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family”.
It is hard to imagine a wider or a more important judicial discretion. Some judges and practitioners—not all, but some—take the view that it all works perfectly well in practice. With respect, it simply does not. The Law Commission reports fieldwork studies showing wide variations in practice between different judges, groups of courts and regions of the country. General guidance may be given from time to time by the Supreme Court, but only the biggest of “big money” cases get to that court and they are by no means typical.
Big money cases often incur very high legal costs, but even much more modest litigation about financial provision on divorce, as the noble Baroness mentioned, can be a heavy burden on ordinary families at a time when they are likely to have all sorts of extra costs to face. Legal aid is no longer available except for issues involving minor children or in cases of domestic violence. But at present the uncertainty of the outcome drives many parties to litigation. Divorce is often traumatic enough without the whole family’s resources being depleted by legal costs of the scale that has been mentioned.
I referred earlier to the Law Commission’s conclusions about whether the present law is predictable. I should add that the Law Commission has strongly recommended that there should be a change in the law regarding what lawyers call prenups. The Bill contains provisions to that effect. I should say a word more about so-called prenups as I was a member of the Supreme Court, which heard the important case of Radmacher v Granatino about seven years ago. To go into the issue of prenups, as so often, involves a bit of history. Before 1857, divorce was totally different. It was dealt with entirely by the ecclesiastical courts. It was not really divorce at all; it was divorce in the Latin phrase, a mensa et thoro—from the board and the hearth. It was much more like judicial separation. In those days, when marriage was indeed regarded as indissoluble, it was not wholly unreasonable that a doctrine arose that it was contrary to the public interest for parties contemplating marriage to enter into an arrangement as to what would happen if, finally, sadly, they separated. It was regarded as a bad thing that they should be thinking about that at all at that stage.
Now that we have had true divorce since 1857—some 160 years—it is less and less sensible to regard it is somehow contrary to the public interest that parties contemplating marriage should consider the prospect, however remote they hope it is, that something might go wrong. But it was not until the important case of Radmacher v Granatino that the Supreme Court decided that the notion that it was contrary to the public interest should disappear. Even so, it simply meant that the court could take account of the provisions of a prenuptial agreement and were not in any way bound by them.
Radmacher v Granatino was a quite remarkable case because Mrs Radmacher was a German national from a very rich German family and almost certainly still had a German domicile although she was living in London, and Mr Granatino was a French national and probably still had a French domicile. It was therefore odd. The noble Baroness referred in another context to London becoming the divorce capital of the world. Mrs Radmacher was advised that if she went back to live in Germany for quite a short qualified period of I think about six months, her divorce would have gone through on the strength of a very strong binding prenuptial agreement that she entered into with her husband in Germany. Surprisingly, she decided to continue the proceedings in this country and must have spent millions of pounds before her eventual victory in the Supreme Court, and then only on the basis that it was possible for the court to take account of the prenuptial agreement rather than being in any way bound by it. That would be dealt with by the Bill.
It is regrettable that the English Law Commission felt unable to recommend other changes to the law because of continuing lack of consensus across the country as to what they should be. On a subject of such general importance, it is understandable that the Law Commission should want to act only on a clear consensus. But change is long overdue.
Many of the Bill’s provisions reflect those which have now been in force in Scotland since 1986, the 1985 Act having come into force straightaway the next year, with minor changes in 2006 to reflect changes to the permitted grounds for divorce in Scotland. A key feature is that only “matrimonial property”, as specially defined in the Bill, is available for division between the parties. The Scottish Law Commission, unlike its English counterpart, has at all stages strongly supported the new Bill in Scotland. The general view appears to be that the provisions in Scotland are working well in practice. That was the main conclusion of a thorough survey conducted in 2015 by a team at the University of Glasgow led by Professor Jane Mair.
The House will want to look closely at the definition of “matrimonial property” and other key features of the Bill, but at this Second Reading stage, I invite your Lordships to say simply that, after 45 years, the time has come not only to sanction prenups but to make radical changes to the very wide and unfocused judicial discretion that is, sadly, a feature of Section 25(2) of the Matrimonial Causes Act 1973.
Baroness Shackleton of Belgravia (Con)
My Lords, I thank the noble Baroness, Lady Deech, for the time and energy that she has devoted to bringing this Bill before your Lordships’ House. As a practising divorce lawyer for nearly four decades, I want to register my total support for this legislation, which is long overdue, and I beseech the Government to do something about the existing sorry state of affairs. Practising in this field, I see people entering this area of litigation become victims of a statute that is no longer fit for purpose and which leaves too much discretion in the hands of the judges who apply it.
I have recently been reading a little book by George Mikes called Wisdom for Others. I alighted on a vignette about divorce. It was written in 1950, but could be equally applicable today. I quote from it:
“Once when I was about 12 I read a story in a boy’s paper about a big dance to which people were invited by huge posters with the announcement, ‘No Entrance Fee’. Many went, danced and enjoyed themselves then, on leaving, they were stopped at the door and requested to pay. ‘What do you mean? We were told there was no entrance fee’. ‘That’s quite true’, was the answer, ‘there was no entrance fee, but there is an exit fee’. I considered that story at the time silly. Silly indeed it was, but impossible? Look at the marriage laws of modern civilised countries, especially in the Anglo Saxon ones. There is no entrance fee but there is a terrific exit fee—financially as well as emotionally”.
To develop this line of thought, say it was worse than simply finding out that no entrance fee did not necessarily mean no exit fee, and that you knew that, in all likelihood, you would be charged, but what? Imagine if the level of the exit fee depended on the discretion of the person employed on the gate to levy it—let us call him the bouncer. On some nights leavers could be favourably treated, with perhaps a reduction for those over a certain age, or for couples who danced beautifully. On other nights, leavers could face far harsher treatment: perhaps a surcharge for failing to consume any refreshments. Such random increases or reductions in the exit levy are dependent on the identity and discretion of the bouncer, and nobody knows who the bouncer is until they get to the exit. Without meaning to sound at all disrespectful, substituting the bouncer on the gate for the judge in the divorce court brings us close to the sorry state of the operation of the law in the field in which I have practiced for so long.
As we have heard from the noble and learned Lord, Lord Walker, Section 25(2) of the Matrimonial Causes Act 1973, enacted some 45 years ago, gives the court almost total discretion in deciding the level and nature of financial awards on divorce. Judges can follow the letter of the statute but exercise their discretion in myriad different ways. It is not uncommon in High Court financial dispute resolution hearings, where a judge gives an early, neutral evaluation of the outcome of the case in the hope of encouraging settlement, for the parties to be told that there are mean judges and generous judges. That being so, and with parties perhaps not knowing until the day before the final hearing which judge is allocated to their case, it makes a great deal of sense to settle their case now, to get a result within their control.
I have done financial dispute resolutions where the recommended settlement bracket is wildly different from the trial judge’s ruling on identical facts. For example, the judges recommend that parties settle at 50%, only for the judge at the full trial a few months later to award the applicant 40%, or vice versa. Or the FDR judge says that a prenuptial contract is of no significance whatever, only for the trial judge and the Court of Appeal to find that it has magnetic importance. This disparity of judicial discretion, enshrined in an out-of-date statute, cannot be right or fair for the, sadly, very many couples engaged in matrimonial litigation.
The Bill of the noble Baroness, Lady Deech, seeks the production of a statutory framework to ensure a far more a reliable prediction of outcome. This would enable parties to reach an agreement soonest, as their lawyers could advise with confidence on the likely outcome, and the parties would be less likely to “roll the dice”. It would enable FDR judges or mediators to predict the outcome of a case with almost certainty, irrespective of the identity of the judge at the final hearing, and judges would have the comfort of operating within defined, determined and clear statutory parameters to produce more uniform judgments.
Having heard Professor Jane Mair speak about the Scottish system on which this Bill is based, I was overwhelmingly persuaded of that system’s infinite superiority. The appeal of predictability of outcome is obvious. The most difficult situation for most people to cope with in life is uncertainty. It may be true that many cases settle before a full trial, but the statistics do not mention the very significant financial and emotional costs involved in getting to the FDR. Because the ambit of judicial discretion is so wide, technicians practise the dark arts of minimising or maximising financial claims—depending on which side they are paid to argue for—as until the identity of the tribunal is known, it is not possible to know which arguments are likely to meet with favour. Sometimes the reasons for settling are akin to the television programme “Take Your Pick!”, where a contestant is asked whether they would prefer to take the money or open the box, the money being certain but the box—as in proceeding to a trial—being uncertain.
I recognise that I now specialise predominantly in high net worth cases, although I have in the past worked in a law centre and I take on non-high net worth, pro bono work. Where the asset base is lower and the legal cost often unaffordable or disproportionate, uncertainty of outcome is even more damaging. For example, it is not currently possible to predict whether an applicant—wife or husband—is entitled to maintenance payments for life or for a fixed period of time. This is quite a significant discrepancy, with huge financial consequences. Much depends on the postcode lottery. Anecdotally, the northern courts seem to prefer the applicant to get back on their feet and become financially independent. The southern courts seem more indulgent. Uncertainty of outcome leads to delay in settling cases. Delay in getting a court hearing not only has financial implications—money being wasted on costs unnecessarily—but a huge emotional effect in what is already a traumatic time for families. Financial proceedings cause bitterness and rancour and often aggravate the ability of parents to co-parent effectively. Children are damaged and become the unwitting victims of uncertainty and delay in resolution.
There is a further reason why I support the Bill. The appeal process has recently been changed. A request for permission to appeal from a High Court judge to the Court of Appeal is now to be considered by a single justice, often from the Family Division. If the single justice does not give leave, there is no right for an oral hearing to argue against the single family judge’s decision. This is the Family Division marking its own homework. Potential appeals will be blocked—appeals often being the lifeblood of change and clarification. Historically, when brakes have been imposed on the exercise of extensive lower court judicial discretion and “impermissible gloss” on the interpretation of the statute reined in, more often than not that is not driven by the family judges but predominantly by the non-family judges. It is often the latter who correct what they perceive as a misrepresentation of the law as applied by the lower courts, and create new law.
In the then House of Lords judgment in the ground-breaking case of White, the overriding application of the “reasonable needs” concept, liberally applied and developed over many years, was summarily replaced by the principle of sharing and a seismic change in the way that finances were divided on divorce. In 2010 in Granatino v Radmacher, to which the noble and learned Lord, Lord Walker, has already referred—I represented Mr Granatino in that action—the Supreme Court held that in certain circumstances prenuptial agreements could be effectively binding, but to illustrate what I am saying the dissenting judge was the only family judge sitting on the panel which voted in favour of the application of the prenup by a majority of eight to one.
The Supreme Court and the Law Commission have favoured changing the current law in respect of prenuptial contracts but nothing has yet been done. Even if the law on prenuptial agreements were changed so as to make them binding so long as they were “fair”, it is the bouncers, with their ultimate discretion, who would then determine what is fair. To quote the Supreme Court:
“Then fairness, like beauty, lies in the eye of the beholder”.
I conclude as I began, with gratitude to the noble Baroness, Lady Deech, for introducing this Bill, which is long overdue and which I implore the Government to move forward on.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I should perhaps begin by saying that I know a good deal less about this subject and its operation in practice than the noble Baronesses, Lady Deech and Lady Shackleton, matrimonial law never having been my special subject, either at the Bar or on the Bench.
Inevitably, however, I was involved in a number of cases that reached the courts including that most seminal of early pre-nuptial settlement cases, referred to several times already, that of Granatino v Radmacher —the title can be the other way round, depending on where you see the case reported. This was a case on which nine of us sat in the Supreme Court and all but one, the noble and learned Baroness, Lady Hale of Richmond, who is now of course the President of that court, gave substantially greater effect to such an agreement than the noble and learned Baroness would have given, although, as the noble Baroness, Lady Deech, has explained, we hedged it about with more qualifications than were no doubt necessary or ideal. That decision was, as the noble Baroness, Lady Shackleton, has made plain, contrary to the interests of her client, for which I suspect she has never yet forgiven us although I was glad to see that, as I understand it, she now supports Clause 3. My noble and learned friend Lord Walker of Gestingthorpe was also on the case, as he has said, and I take this opportunity to acknowledge his great skills as a legal analyst and draftsman although, like me, he was never a matrimonial specialist.
Tinker as one may wish to do with some of the details of this Bill, its essential structure is, I suggest, a model of sound parliamentary draftsmanship. On the substance of the Bill, there is really very little that I wish to say at this stage. The essential points have already been made. Many will be repeated, I expect, perhaps with fresh shades of lipstick, if that is not nowadays an impermissibly sexist metaphor.
Essentially this subject raises, as so many areas of law raise, the age-old tension between the competing interests on the one hand of certainty and predictability, and on the other of flexibility. Yesterday, as it happens, we discussed in this Chamber that tension in the context of the Civil Liability Bill, in particular as to the compensation for whiplash injuries. We are described as the whiplash capital of the world. Today, the same tension arises in the context of financial provision following divorce; again, we are described as the divorce capital of the world. What this Bill essentially aims at, just as yesterday’s, is to shift the balance rather further in the interests of predictability so as, among other things, to shorten, cheapen and hasten the resolution of disputes or potential disputes about the division of assets and so forth, when a marriage ends.
For all the reasons so ably and compellingly set out by the noble Baroness, Lady Deech, in her truly brilliant opening of this debate, I am persuaded that it is indeed now time to make this area of our law altogether more predictable than, alas, it has increasingly become over the 40 and more years since the 1973 Act. As to the specific rules, principles, policies, approaches—call them what one will—by which the Bill proposes to further this fundamental goal of greater predictability, I find myself in broad and substantial agreement with its provisions. I look forward to hearing the views of others on certain of the niceties of the Bill and I hope to have a clearer view of my own when eventually we come, as I hope we shall, to Committee. Meanwhile, I wish the Bill a fair wind onward.
Baroness Falkner of Margravine (LD)
My Lords, I thank the noble Lord, Lord Davies, for allowing me to continue in the order of proceedings. I commend the noble Baroness, Lady Deech, for her persistence in pursuing this issue over many years. I am also grateful for the clarity of the briefing that she has provided me with and for her acuity in setting out the purpose and objectives of the Bill so clearly and brilliantly today.
I am not an expert on the issue, but I reflected on it a little, particularly during the case mentioned by so many others today—the Radmacher case—which I recall very clearly. I say very humbly in front of two former members of the Supreme Court that I think the balance in the court’s ruling was correct. Otherwise, I am, I think, the first of the lay speakers to comment on the Bill today. The only interaction I have had with divorce in the past few years has been in the context of the Brexit negotiations; I recall taking issue early on with Michel Barnier when he referred to the Brexit negotiations as a divorce. I think I suggested that divorce law was on the whole rather more thought through than Article 50, particularly in the provisions relating to financial settlements and provisions. My committee, European Union Sub-Committee A, had to deal with that part of the United Kingdom’s settlement, and I can just imagine what it must be like for courts to have to adjudicate on the matters in the Bill promoted by the noble Baroness, Lady Deech. Perhaps the use of a lawyer or two might have benefited the drafters of that part of the Lisbon treaty.
Turning to the Bill, I am sure I am not alone in my frustration that the UK, mainly London, is seen as the divorce capital of the world. I read recently about a wealthy couple who had no relevant connection to the United Kingdom, other than that they had parked some of their wealth in London property. Now that they were contesting a divorce, the significant consideration for one of them to was demonstrate, through the ownership of a flat, that they had a connection to the UK. Their application would, if accepted, presumably lead to a more favourable financial settlement for that person, as opposed to one in the jurisdiction where they had a real and ongoing connection. Jurisdiction shopping in this area has much of the same unsavoury scent as tax evasion, both being the preserve of the global wealthy elite. As the noble Baroness, Lady Deech, said, London being seen in that light is nothing to be proud of.
I have a slight reservation about the Bill in that the financial interdependence of couples varies across such a wide spectrum, from those with modest means to those whose cases make the media—the fabulously wealthy—and between those who need clear and accessible law and those who can afford lawyers and accountants. I am slightly concerned that, in order to provide consistency and clarity in disputes, we are in danger of eroding judicial discretion to an extent that may be undesirable. I say “may be undesirable” with great qualification. My discomfort is particularly to do with the commodification of pre and post-nuptial agreements. I see from legal comment in the media that some advocates see that as the equivalent of taking out life insurance or writing a will. I think the expression used by a lawyer was, “It’s as normal as”. In the real world, I would argue, most people do not take out life insurance or write wills before their wedding day, and the binding nature of these agreements may deter couples at a time of hope and optimism in their lives. My question to the noble Baroness, Lady Deech, and indeed to the Minister, would be about the extent to which they see a need for a public information campaign about how these agreements work, and the importance of people understanding the implication of financial settlements on divorce before they even get married.
I also have some niggles with Clause 3. I do not have a problem with the binding nature of prenups and post-nups. I think their take-up is relatively limited—for good reason, as most people who decide to marry do so in the desire for a binding commitment to each other for better or for worse, rather than the contractual mindset of, as we have heard in several cases that have been mentioned, for richer and for richer, which are the ones that make the news. However, for prenups as described in Clause 3(1)(c), I am not entirely clear why there is a requirement that the agreement must have been made 21 days before. I assume that this is so that duress on the part of either party is ruled out but, if so, why 21 days as opposed to 30 days or any other timeframe?
The clause also calls for legal advice to have been obtained. I can see the reason for this but, in the absence of funding for independent legal advice, does it not serve as a disincentive towards prenups for those couples who cannot afford that advice? Are there practical suggestions for the Government to devise a toolkit or guidance that could serve as a generic format and be considered independent advice in the absence of a lawyer? I note that the Law Commission has recommended a divorce calculator, and a cursory search on the internet showed up a number of platforms offering calculations. The question would be about the reliability of those tools.
I am in broad support of the Bill. I look forward to its progress, which I hope on this occasion the Government will agree to support. I conclude with a couple of thoughts. Fairness is a difficult and complex concept, inevitably subjective and very dependent on individual circumstances. The important challenge in this area of law is to achieve certainty in general without complexity eroding the flexibility to account for the individual circumstances of the people involved. I think the Bill acknowledges that and, as I said, I look forward to its progress.
Lord Davies of Stamford
My Lords, I apologise to the noble Baroness, Lady Falkner, for having misread the Order Paper and inadvertently jumped the gun. I was in the process of trying to congratulate the noble Baroness, Lady Deech, on her work in this field and on an admirably lucid and, if I may say so, succinct Bill that she has brought before the House. I believe that she is performing a valuable service for the country, for the law and—I will explain what I mean by this in a moment—for Parliament itself. To my certain knowledge she has been engaged in work on this project for three or four years, and I hope that we are now getting to the point where eventual success may be within sight.
In my view, the present state of the law as has been accurately described this morning is, if I can put it in slightly stronger language than has been used, a rather discreditable shambles. The jurisprudence has wandered a long way from the original statute, which people take little notice of, and that jurisprudence varies quite inconsistently and incoherently from one case to another, as the noble Baroness, Lady Shackleton, has just said, from first hearings to appeal hearings and so forth. That is obviously an undesirable situation for everyone. The law in a free society should be something that everyone can understand. In the present situation in the matrimonial area, it is quite impossible for lawyers to give clear advice to their clients as to the likely outcome of different cases. The fact that it is very difficult to give such advice does not mean to say that advice is not demanded or indeed being paid for at a very high price in many cases, as we have heard, but that highly priced legal advice could be of little value in many cases because of the uncertainties in this area.
Incidentally, I praise the noble Baroness, Lady Shackleton, for the line she is taking on this, because, given her substantial practice in this area, her endorsement to the Bill displays an altruistic and self-sacrificial attitude, and it is admirable when one comes across that.
There is another problem about the state of the law in addition to those already mentioned—which I therefore do not need to go into. That is that the law in its present state has proved to be a valuable and useful instrument for unscrupulous people who want to exploit others by means of fortune-hunting. There have been many cases in the press which have received a lot of publicity, and the one which we all remember from a few years ago was when a woman who had practised for some years as a professional prostitute at quite a high level in the market succeeded in marrying one of the greatest and best-known singers in the world—perhaps the best-known—and clearly expected a considerable dividend from that. She waited for the two years which is not of course statutory but often appears in the jurisprudence to be sufficient to get the full payout and then sued for divorce. She got only £20 million, not the much larger figure that she was expecting, so there is something to be said for that. Nevertheless, I think that £10 million per year is quite good payment, even in that profession. It is not in the interests of the law that it should be abused in that obvious way, which is one more reason for modernising it.
I am delighted that the noble Baroness, Lady Deech, as part of her programme, intends to provide legal backing for prenuptial agreements. Some years ago, I tried in another place to achieve that. I introduced a Bill which received an unopposed Second Reading in the other place but, as often happens to Back-Bench initiatives, it did not make any further progress and I have been waiting for an opportunity to support someone else in the venture. I am delighted that that opportunity may now have arisen.
As the noble Baroness said, the inspiration for her Bill has been many cases in Scots law, which is of course a form of Roman law. It is therefore not surprising that the general picture to which she is looking for us to conform is familiar to the continent of Europe, because all those jurisdictions have provisions much like these. The Scottish position, which says that matrimonial property is property accumulated or acquired during marriage by the two parties, not property received as a gift or inheritance from outside or which is acquired by one of the parties before the marriage, is sensible, coherent and immediately understandable. It is nice to think that, if the Bill or something like it gets on the statute book, there will be a clear criterion of that kind which everyone will be able to understand.
I make one general point before I sit down. I do not think that Parliament is very good at one of its essential tasks, which is to keep the law up to date. We are actually quite bad at it. When you come across a case where the jurisprudence is out of line with the statute, that is always a warning signal. That means that, in principle, Parliament should be looking at it, but often we do not.
I shall perhaps shock the House by saying that one incident that caused me considerable concern was a change in the law relating to rape within marriage. Under traditional common law, rape was impossible if the parties were married. I disapproved of that and was very much in favour of the law being changed, but I was horrified that the law was changed not by Parliament but by jurisprudence. That was a fundamental change, it was a matter of principle, it was a 180 degree reversal of what had existed before. That seemed to me to be a decision which Parliament should be taking, not the judges.
Another case that shocked me very much relates to the law on the right to die Bill—not the Bill itself, which of course failed in the Commons recently, unfortunately, since I supported it strongly. That was the issue of what happens to relatives and close friends of people who are dying and want to terminate their lives more comfortably and rapidly by going to Switzerland or some other jurisdiction where it is allowed. Are the accompanying relatives or friends guilty of a criminal offence, of aiding or abetting suicide? That is a very important issue, raising all sorts of moral and social problems, as well as some technical, medical issues. It should have been debated by Parliament, and Parliament should have taken the decision. What happened there was even more shocking. It was not the jurisprudence or the judge that determined the issue but the prosecutors—the Director of Public Prosecutions. My right honourable friend in the other place is a man for whom I have the greatest regard, and I think that he took the right decision—but it was completely wrong to get to the point when prosecutors had to change the law. That must be wrong. So Parliament is not good at doing that fundamental job.
We have another case here in which we all agree that the situation is very unsatisfactory. I have always said that the situation is discreditable to Parliament that there should be such a mess as we find in this area of the law. It is very important that in future Parliament makes a conscious effort to do the essential job properly of revising the law from time to time, and not just waiting for the Law Commission to come up with proposals, because on occasions it is far too pusillanimous—and this is one of those occasions. It is our responsibility, ultimately, to decide these matters; it is not a responsibility that we have carried out very well but one that has certainly been taken up in the most proper and effective way by the noble Baroness, Lady Deech. I shall strongly support this Bill as it goes through its various stages, as I hope that it will from now on.
The Lord Bishop of Chester
My Lords, I join others in congratulating the noble Baroness, Lady Deech, for her persistence and perseverance in bringing this Bill forward and for her very elegant opening speech.
I have not spoken on divorce in the House before, but on a number of occasions I have spoken about marriage and its place in society, including in a balloted debate just a few years ago. So many of our social problems are exacerbated by the modern frequency of divorce and the break-up of relationships outside formal marriage—key drivers behind poverty, child poverty, homelessness and housing shortages as well as loneliness and all the social and psychological problems that can follow from that. The impacts on children can be variable and are disputed, but nevertheless they are surely real.
Yet we have to be realistic: divorce happens and, indeed, can be the right way forward; perhaps it often is. There are few things worse than being trapped in an unhappy marriage, although I sometimes wish that people started out with a more realistic sense of the inevitable ups and downs, tensions and demands of marriage. A president of the Mothers’ Union was once asked whether she had ever thought of divorcing her husband. “Divorce? Absolutely never”, she said—“But murder? Really quite frequently over the years”.
The Christian church has found divorce a difficult subject. The view developed in the main western branch of Christianity represented by the Roman Catholic Church and those protestant churches that emerged from it, including the Church of England, was that a marriage, once solemnised, was indissoluble. Divorce or annulment were virtually unthinkable, other than in the most exceptional circumstances—as, indeed, Henry VIII was to discover. To this day, the official teaching of the Roman Catholic Church maintains that, unless a formal ecclesiastical annulment is granted, those who are divorced and remarried should not be readmitted to receive holy communion. I am pleased that Pope Francis is pushing back against this, amid a vigorous debate in the worldwide Catholic Church.
Through a rather tortuous process, the Church of England has arrived at an acceptance of divorce, to the point where those who are divorced are usually able to remarry in church, subject to certain pastoral conditions. I warmly welcome that. Indeed, in nearly 40 years of ministry, I have always been willing to avail myself of the provision in the statute law which permitted me to remarry divorced people in church. I recall 30 years ago being severely admonished by the then Archbishop of York for doing so. The secret of success in the church is sufficient insubordination.
Interestingly, the eastern Orthodox churches have always permitted the possibility of remarriage after divorce, because they have always taken a rather different view of the status of vows. In many ways, the western churches have been catching up with the long-established practices of the eastern churches.
I say all this as background to the Bill of the noble Baroness, Lady Deech, which I warmly welcome. I value the flexibility that our common law traditions give, but there must come a point, as others have said, when Parliament provides a clear legal framework when a great deal of case law has built up over a period of considerable social change. The general withdrawal of legal aid is an important factor here. Couples should be able to seek clearly in law the principles upon which their practical separation and divorce will proceed. We may regret that more people represent themselves to save on legal costs, but it is a reality that is unlikely to change.
I hope that the Bill reaches Committee, and I mention one or two issues that I suggest may need some further examination. I do not think that I have ever said before in your Lordships’ House, “I am not a lawyer, but”, although I have heard that introduction to quite a few speeches in the past. However, I have benefited from comments from some leading lawyers who work in family law—my daughter is a senior lawyer in the City and I was able to glean some advice from her. So if I speak as a fool, as St Paul once put it, I at least try to be an educated fool in what I am about to say.
For my part, I think that prenuptial agreements, if entered into freely and after legal advice, should be recognised as legal agreements, and that has been the direction of travel, as we have noted, although I wonder whether they might be subject to an overall test of reasonableness in the Bill. The noble Baroness, Lady Shackleton, said “fairness”, and I wonder whether some overall test of reasonableness or fairness is required.
There is a sense of course in which prenuptial agreements are in tension with the traditional commitments entered at marriage—for better, for worse and so forth. I certainly do not want to encourage moving to an unduly contractual view of marriage. All is fair in love and war, it is said, and war is not governed by a contract with break clauses. Imagine Britain in 1939 sending a message to Berlin: “We are declaring war, but we would like to see how it is going at Christmas”. There is a certain dynamic in some human activities where you just have to go for it without, as it were, trying to predict everything in advance. Yet the reality is that people today often marry later or with children from previous marriages, and I can see a place for prenuptial agreements in providing a better basis for a new marriage. I would regret if they became too much the norm for all marriages—though I fear that may well be the direction of travel—because there needs to be a certain sense and element of open-ended commitment and, yes, a leap of faith, in our understanding of marriage.
I also accept the general wisdom of seeking to help the people concerned in a divorce to make as clean a break as possible. The Church has moved in this direction in the—fortunately comparatively rare—circumstances of priests divorcing. When this happened in the past, it generally used to be the case that the priest was male and the spouse a female, who had often devoted herself to supporting her husband’s vocation and their family. Divorce in these circumstances was very difficult indeed. Typically, there were few assets to distribute and a diocese would house what one often called “the deserted wife” for life and would provide some maintenance. Nowadays, we seek to facilitate a clean break and provide funds for retraining, if needed, and time-limited help with mortgage payments, where necessary.
I have some hesitations over the details in Clause 5. Why is the age of a dependent child limited to 16? Children these days are often dependent on their parents for much longer than that—I speak from my own experience. Again, five years seems a tight time limit for many folk who need significantly longer to retrain and get established in a career. I would prefer seven or perhaps even 10 years, notwithstanding the possibility of a court granting periodical support for a period of longer than five years.
However, my greatest concerns are about Clause 4. The potential danger with ring-fencing premarital property is with a marriage where most of the assets were generated pre-marriage, and the marriage was perhaps a comparatively long one, perhaps with one party, usually the wife, looking after children and not developing a career. Perhaps the husband had been very busy, which was in practice what needed to happen. Perhaps the income during the marriage had been fully spent on the children’s education. There could be very little matrimonial property to divide in those circumstances, yet one party has substantial premarital ring-fenced assets and the other has given half a lifetime to the marriage but does not have any entitlement to those assets.
The Bill as drafted does not seem to have an adequate safety net—the flexibility to which the noble Baroness, Lady Falkner, referred in her remarks—either for the other spouse or for children. Again, it is limited here to children aged 21. Children in education often go on well beyond 21, so it seems too low an age limit.
These are merely the thoughts of a jobbing Bishop who has been happily married for 40 years—and who, by pure coincidence, will return to Scotland in a year or two.
Baroness Bottomley of Nettlestone (Con)
My Lords, it is a pleasure to follow the right reverend Prelate. On this subject and so many others, we so value the Lords spiritual, who help us to set the tone. This is not only about the law but is much more profoundly about the sort of society in which we want to live.
Many have commented on the extraordinary changing demographics, attitudes and expectations of marriage, which makes this piece of legislation all the more complex and timely. I warmly welcome the comments made by the noble Baroness, Lady Deech, a long-standing friend of mine. Indeed, for exactly the qualities we have heard from her today, I invited her 20 years ago to become chairman of the Human Fertilisation and Embryology Authority, a role where attention to the law as well as to the ethics involved was critical. In many ways, that is what unites us today.
There is a wealth of wisdom and experience in this House, and of course I defer to the greater knowledge, wisdom and experience of the noble and learned Lords who spoke earlier. Indeed, I had to go and put on a little more lipstick before coming back in to speak, following the noble and learned Lord’s comments a few moments ago.
I was also particularly pleased to hear from my noble friend Lady Shackleton. Her wisdom and experience are all the more important, and her clarity about why the degree of discretion has become completely unjustifiable will have registered with us all. As a great fan as a child of Hughie Green’s “Double Your Money”, the words “Open the box or take the money” will stay with me for a long time. However, for many years I have been concerned with family law. In my early 30s, I was chairman of the Inner London Juvenile Court. When I first came to this House I was responsible for the implementation of the Children Act 1989, working closely with the former Lord Chancellor, my noble and learned friend Lord Mackay, and with a long-standing friend and associate now, the President of the Supreme Court, the noble and learned Baroness, Lady Hale, an early and very enlightened thinker on these subjects.
On one occasion I was about to have an Adjournment debate, after my ministerial life was happily over, which again was on a matter of family law and divorce, and I met my noble friend Lady Shackleton and started to cross-question her about divorce, what needed to be reformed and what should change. She entirely misunderstood my intentions and thought I was trying to winkle out some ideas about all her celebrity clients, about whom I knew very little at the time. However, I was preparing for an Adjournment debate, which, in the way of life in another place, started at half-past midnight, and I spoke about these matters. Yes, there has been progress but insufficiently so. The fact that we are debating these matters now in relation to a piece of 1973 legislation suggests a critical mass of weight behind the idea that there needs to be progress.
Having been married for 50 years—I agree with the saying “Murder often, divorce never”—as yet I have no personal experience of divorce, but, like others, I have been closely affected by the experiences of family, friends and far too many constituents. As an MP, I found that often the hardest, most painful and most distressing cases were those involving divorce. I echo time and again that the process often exacerbates the problem. How many people think, “Our marriage has come to an end. It’s not right for anybody that we carry on living together, but we want an agreeable and conciliatory divorce”? However, by the end of the process, if they had not deeply disliked each other at the beginning, all trust and optimism is lost.
It has been argued that since it has become relatively easy to divorce on a no-fault basis, the splitting of a very deep relationship will always involve acrimony and the intensity of feeling gets displaced on to the property or the children. I am not sure about that. Mediation, not having to go to court and proper information being available must all be better for those concerned. Reasonable expectations over fair-settlement outcomes can do much to ease the pain, and that is my understanding of a key purpose of the Bill.
Since the 1973 Act, judges have been presiding over divorce cases at a time of profound societal changes in practice and attitudes towards marriage. However, the argument is that these changes have not yet been addressed by appropriate legislative review and reform, and that has been repeated time and again today. The matrimonial landscape of the UK today looks very different from that of 1973. We have a seen a decline in overall marriage rates, a decline in the proportion of religious ceremonies, an increase in first marriages relative to remarriages, the introduction of marriage equality, and a dramatic increase in the age at which people marry. The average age in 1973 was 26 for women and 28 for men; by 2015 it was 35 for women and 37 for men, but those figures relate only to heterosexual marriages.
Reports on these trends from the Office for National Statistics are fascinating and particularly informative. However, as I said, despite the changes, judges have been left with essentially the same legislation as was put in place in 1973. The result is the institutionalisation of a system which too often creates confusion, unpredictability and cost, placing excessive interpretive responsibility on judges. The extent of judicial discretion is such that lawyers and, of greater concern, the high number of self-representing litigants find it increasingly difficult to form reasonable expectations about what a fair outcome might look like.
Of course, divorce affects people across the full socioeconomic spectrum. We have talked about high net-worth individuals—some of the celebrated cases. However, the lack of legal aid provision often leaves the less fortunate in an acutely difficult place, where any money spent will come from the long-term benefits they have accrued. It was recently reported by Citizens Advice that 90% of self-representing litigants say how negatively this impacts on aspects of their lives, such as their mental health, their working lives, their finances and their personal relationships.
In a previous debate on this subject and again today, the noble Baroness, Lady Deech, correctly identified that such uncertainty threatens our commitment to the rule of law—a vital pillar of our democracy. The law must be accessible, clear and predictable. To borrow words from the late Lord Bingham of Cornhill, former Master of the Rolls, Lord Chief Justice and senior Law Lord:
“The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered”.
It is now evident that change is called for. With judges playing a central part in applying family law, we need to listen carefully to more views from the judiciary on the nature and effectiveness of such reforms. I am not able to say whether the means are the precise way of addressing the ends. I think all of us in the House support the ends and I hope that, in Committee, we can look more carefully at the precise means by which to get there.
Divorce proceedings inevitably occur at an exceptionally stressful and emotional time for those involved and can bring exceptionally difficult consequences for the children. Parental divorce can be particularly traumatic for any child, representing a profoundly distressing and disruptive event in their young lives. However, the extent of this disruption can be dampened or exacerbated by the nature of the divorce, particularly by factors such as witnessing vitriolic settlement proceedings or uprooting them from the family home. On the whole, children can cope with single parents but struggle to deal with enduring acrimony. This is repeated time and again by a wealth of academic literature. Family conflict is a greater cause of depression, anxiety and low self-esteem than divorce. The consequences of parental divorce on children worsen depending on the degree of parental conflict. Marital conflict that is hostile, aggressive, poorly resolved or concerns the child is particularly destructive and upsetting for children. So apart from the individuals concerned, it is in the interests of children that we examine how the Bill will impact them. I should be grateful for further clarity on the extent to which binding prenuptial and post-nuptial agreements might infringe on judges’ flexibility to prioritise children’s needs.
Improving predictability on the settlement process is a valuable outcome. But what about the distribution of effects that the Bill is likely to have for those in marriages where there is economic inequality between spouses, as in probably the majority of cases? All will have read the comments of Dr Sharon Thompson, of Cardiff University, who said that removing judicial discretion may prove disadvantageous for the economically less-advantaged spouse by diminishing the judicial flexibility to meet their needs through the division of non-matrimonial property.
We must also be wary of inequalities at the point when a prenuptial or post-nuptial agreement is created. As I understand it, these agreements are likely to safeguard the income of the wealthier spouse without compensating their partner for potential career sacrifices which may, in practice, facilitate their partner’s higher earnings. The concern is exacerbated by the reality that the wealthier spouse is likelier to have superior leverage at the time of negotiating these agreements. I hope we can look at this and other matters. Will the Bill diminish the ability of judges to correct for these disparities, except in the prevention of “serious financial hardship”?
I admire and applaud the noble Baroness and all those who have rightly spoken about the purpose and principles of the Bill. The job of the House now, I believe, is to give it careful scrutiny to ensure that there are no unforeseen circumstances, complications or adverse effects, and that we genuinely move to a more civilised and enlightened divorce process, where dividing the spoils does not create greater acrimony than the divorce itself.
Lord St John of Bletso (CB)
My Lords, I join others in thanking my noble friend Lady Deech for her tenacity in reintroducing this much-needed Bill replacing Section 25(2) of the Matrimonial Causes Act 1973. It is well accepted that reforms of our divorce laws are long overdue, supported not just by the Law Commission proposals but by Resolution and the Centre for Social Justice.
Coming at the end of the batting order, I fear that almost every point I will make is a repetition of what other noble Lords have said so cogently.
I come to this debate with the experience of having been a divorce lawyer in South Africa—divorce attorney, it was, in those days—where I practised under Roman law, the corpus juris civilis, which is similar to the law in Scotland, respecting that antenuptial agreements are binding, and where many of the provisions of this Bill are incorporated in the divorce law. I also come, sadly, from the experience of having gone through a long, protracted, painful and expensive divorce. I congratulate the noble Baroness, Lady Bottomley, on having been married happily for 50 years.
Legal certainty is of paramount importance. It is absurd that the development of our divorce law has been evolved through judge-made law which bears little resemblance to the original statute. I find it hard to accept that one of the reasons for the Government’s reluctance to take the initiative for a root-and-branch reform of the law is the need to, in their words, maintain flexibility. It is tempting to bear reference to the Brexit divorce, where the uncertainty has been devastating to both businesses and individuals alike.
Let me touch briefly on the issue of costs, which is a major consideration. Many would argue that the only winners in many divorces are lawyers. The removal of legal aid has resulted in many parties being unrepresented and, without clearer guidelines and legal certainty, has added to the trauma of divorce. Making prenuptial agreements binding, as long as both parties have received independent advice, would certainly remove a great deal of the uncertainty as well as reduce legal costs. I agree with my noble friend Lady Deech that there is no evidence that marriage breakdown is encouraged by prenuptial or postnuptial agreements.
I agree also with the noble Baroness, Lady Bottomley, that often insufficient consideration is given to the harmful impact of protracted and acrimonious divorces on the children of divorcees. All too often attempts at mediation fail because of the current legal uncertainty on the division of post-marital assets. The Bill would provide much-needed scope for successful mediation, reducing the need to go to court, and a far fairer outcome. Clearly there is a strong case for divorce reform which makes the law more predictable and paves the way for swifter, clean-break financial settlements. A medium can be achieved for the provision of more certainty and an element of flexibility. It is shameful that London has the reputation as the divorce capital of the world.
I give this Bill, so ably introduced by my noble friend Lady Deech, my wholehearted support. I hope that the Government can, on this occasion, give more backing to these much-needed reforms.
Lord Davidson of Glen Clova (Lab)
My Lords, I add my welcome to the Bill of the noble Baroness, Lady Deech, which the Opposition are happy to support.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, observed, in many areas of legislation there can exist a tension between statutory predictability and judicial discretion—a contest between predictability and flexibility. As the noble Baroness, Lady Deech, observed, for Scotland, Parliament decided in 1985 in favour of prescriptive predictability regarding the division of assets on divorce. This of course did not drive out all judicial discretion in deciding how the split of finances will fall.
In so far as the Bill has drawn inspiration from Scottish experience, I propose identifying a few caveats that Caledonian experience may suggest; I note my thanks to Ruth Innes Advocate, a family law specialist in the Scots Bar. First, however, I commend the Bill, which now includes the five-year period for periodical payments. The Scottish experience suggests that the three-year period is often too short. Furthermore, it is seen to impose a real obstacle to extending the period, even where overall fairness might so dictate. The Bill’s proposal of a five-year period is seen as an improvement on the Scottish experience. The noble and learned Lord, Lord Hope of Craighead, identified this as an area of reform in the Supreme Court cases already referred to—Miller and McFarlane—way back in 2006. Unfortunately, the Scottish Parliament has not yet seen fit to reform the three-year period.
For all the advantages of the predictability in Scots law regarding financial provision, I, with Miss Innes’s assistance, have identified three particular caveats. Where there is a potential competition of jurisdictions for divorce—as between England and Wales, and Scotland—I understand that the economically stronger party is generally advised to raise proceedings in Scotland but the economically weaker party is advised to do so in England and Wales. Thus Scotland is seen to favour the economically stronger party, by way of the 1985 Act. This is partly a result of the three-year period for periodical payments, as well as the practical exclusion of pre-marriage assets from the assets for division.
The second caveat is that the 1985 Act inevitably required a setting-down process, as with all legislation. That produced the other cases that identified and clarified the law, which identified some areas of concern where the law has become somewhat frozen, by reference to these earlier cases shortly after the 1985 Act. These early test cases have tended to discourage later appeals for the usual reasons of cost and risk. The concern is that the freezing of the position may be at the wrong points established by these earlier judicial decisions. To be clear, the concern is for the interests of the economically weaker party.
The third caveat relates to the somewhat rigid definition of “matrimonial property” that has, from time to time, produced outcomes regarded by practitioners in Scotland as unfortunate. For example, in cases of a high-income lifestyle but a low accumulation of assets, the economically weaker party can suffer a dramatic downturn in living standards while the high-earning party can maintain their standard of living. This is seen as an undesirable outcome in situation—a point partly referred to earlier by the right reverend Prelate.
However, none of these caveats should detract from the support given by these Benches to the Bill. My observations point us to where problems may arise and, perhaps more helpfully, where problems may be avoided. The Bill’s principles of equality, clarity and fairness plainly deserve support, which these Benches are happy to provide.
Baroness Vere of Norbiton (Con)
My Lords, I congratulate the noble Baroness, Lady Deech, on securing the Second Reading of her Bill. Indeed, I thank her for all the work she has done, and no doubt will continue to do, in this vital area. Although currently much maligned, it is a strength of your Lordships’ House that noble Lords such as the noble Baroness, Lady Deech, with a passion for and deep understanding of an issue, can work tirelessly with Governments of all persuasions to encourage reform. It has been my pleasure to listen to your Lordships today. I thank all noble Lords for the insight they have brought to the debate. I will encourage my colleagues in the MoJ to study them carefully.
The resolution of financial matters is one of the many challenges of divorce or civil partnership dissolution. Although there are differences of opinion within your Lordships’ House and beyond, it seems that there is an agreed and twofold objective: that the process should be as supportive and clear as possible, and that the outcome for both parties and any children involved should be fair.
From the debate it is very clear that there is consensus among your Lordships that reform of the law governing divorce finances is overdue, but it is also the case that consensus on the type of reform is not universal. The President of the Family Division, Sir James Munby, who, as the noble Baroness, Lady Deech, noted, favours reform, also recently observed that,
“views on what form such reform should take are sharply divided”.
It seems that this divide comes from the differences of opinion about how we should balance the law. We can all agree that the current legal framework gives the court wide-ranging flexibility in making financial orders and that judges skilfully exercise that flexibility and discretion every day. For those who see the virtue of the existing law, that flexibility allows for fairness. For those who see a problem with the law as it is, that same flexibility makes for uncertainty. For example, the noble and learned Baroness, Lady Hale, the President of the Supreme Court, has suggested that, sometimes, open-ended periodic payments are the only way to,
“give each party an equal start on the road to independent living”.
It is clear to me that the breadth of views, including from those at the very top of the legal profession, warrants careful consideration by the Government.
Rebalancing a law such as this—if we are satisfied that it needs rebalancing—cannot be an easy undertaking. The law—one law—must allow the court to deal equitably with the widest range of cases, from shorter marriages of young people, both with successful careers and great prospects, to longer marriages of older people where it was jointly decided that one of them should give up a career to build a home and raise children. Here I must note that, although there might be a perception that the law is out of step with how men and women live their lives today, the law is gender-neutral. Equality of spouses is in statute, so how does it get put into practice? One might conclude—indeed, some have alluded to this—that it is not the law that needs to change but the attitudes of some of those who apply it.
It is clear that the law must retain a measure of flexibility. The question before your Lordships’ House is how much flexibility is needed to allow the court to make orders that are fair to both parties in a very wide range of cases and circumstances. This must be balanced with the need to provide greater certainty about financial outcomes to inform and manage the expectations of the separating couple. The Government want to encourage couples to agree financial arrangements themselves where it is appropriate and safe for them to do so.
In 2014, the Law Commission noted criticism that the law on financial needs was not always consistently applied, but it concluded that the law on this did not need statutory reform. Instead, it recommended that the Family Justice Council prepare guidance on the meaning of “financial means”. The Government listened and took action. With government funding, the Family Justice Council produced detailed guidance for the judiciary and legal practitioners. The noble Baroness, Lady Deech, commented on the guidance’s complexity, but it is for those with the skills and experience to deal with complexity, not for the divorcing couple. It was only relatively recently that this work was completed—indeed, within the last few years. It is only right that we give it time to bed in. If, in due course, it is decided that it is not fulfilling its purpose, perhaps it will need to be reviewed.
There is good guidance for the divorcing couple—a topic mentioned by the noble Baroness, Lady Falkner. The Government produced an excellent guide for divorcing couples to help them agree their finances. The guide, Sorting Out Your Finances When You Get Divorced, is accessibly written, is just 50-odd pages long, is well presented and has been available since September 2015. It explains the options available and how the court makes decisions, so that divorcing couples can have a realistic perspective on their separate financial futures.
Baroness Shackleton of Belgravia
I need to repeat the difficulties presented by that document when the judges applying it do not agree. When you are advising somebody and want somebody to mediate an agreement, or when you are faced with a client who comes into your office and says, “What should I settle at?”—it does not matter if you are dealing with a pro bono person or somebody who can afford many times most people’s annual income—if the adviser cannot predict the outcome because judges apply the same rules differently, we are in big trouble and a settlement cannot be agreed. Therefore, there is a delay; therefore, there is uncertainty; therefore, people get upset and, therefore, children become involved or get disaffected. Most people can deal with things when they know what it is; they cannot deal with uncertainty and delay. The cost of finding out the solution from the document that has been produced is not working.
Baroness Vere of Norbiton
I thank the noble Baroness for her insights on that. To a certain extent, the Government agree. It is why we have been working with the Family Justice Council and are continuing to look at this area. We want to make sure that everything is in alignment. Everything has eventually to be in alignment, whether that be the decisions of the judges or the expectations of those going in front of them and seeking a fair divorce.
Returning to the guide, I wish I had seen it when I went through my—thankfully—only moderately costly divorce. Reaching a financial agreement is very stressful, as I think all divorcing couples can attest. The further away from judges that agreements between the individuals can be reached, the better it is.
I return to flexibility and certainty, as mentioned by the noble and learned Lord, Lord Brown, my noble friend Lady Bottomley and the noble Lord, Lord St John of Bletso. In any reform of the law to balance flexibility and certainty, the Government need to be sure that a proposal would achieve what it sets out to do and would not cause unintended difficulties. Given the complexity involved in disentangling the finances of a shared life and the impact of any changes at a personal level, the Government are keen to see a solid evidence base for reform. We are very open to reviewing any and all evidence from the noble Baroness, Lady Deech, or any noble Lords. Put simply, we all want to get this right.
I acknowledge that noble Lords have pointed to the model of Scots law. I am grateful to the noble and learned Lord, Lord Davidson of Glen Clova, for his comments on its operation and some of its consequences. The noble Baroness, Lady Deech, has drawn attention to research by Professor Jane Mair and others on how the Family Law (Scotland) Act 1985 has worked in practice. A proposal to amend English law in line with Scots law may well appear attractive. I am conscious, however, that there are dissenting voices among the judiciary, family law practitioners and beyond—and, perhaps as significantly, in another place. If the Government conclude that the law in England and Wales needs reform, whether of the duration of periodical payments or of the matters that a court must consider, we must take account of the provisions as a whole and the effects of any changes.
The so-called “big money” divorces mentioned by many noble Lords make for eye-catching tabloid headlines, and I appreciate that several of your Lordships think that awards have been overgenerous. One might also conclude that the fact that such cases come to our country and to the English courts demonstrates perhaps our laws in this jurisdiction are fair, and that the impartiality of our judiciary is highly regarded. But such cases are small in number and a world away from the circumstances faced by the vast majority of divorcing couples.
The question for government is where any reforms would leave more typical cases, perhaps those involving people of an age at which it would be difficult to return to their former career, be that a man or a woman. Couples who have no intention of divorcing make decisions in the expectation of a long-term partnership. These decisions then have serious repercussions on one or more of the parties when, against their initial expectations, their marriage breaks down. With all this in mind, I now turn briefly to the detail of the Bill.
Clause 2 defines matrimonial property—in broad terms, this is property acquired during the marriage but not, for example, from an inheritance—and seeks to exclude property acquired before the marriage from consideration as an asset when financial orders are made. The Government’s concern remains that this could cause hardship if someone’s financial needs could be met only if assets that the other spouse had acquired before the marriage were included.
Clause 3 seeks to make nuptial agreements enforceable on condition of certain safeguards. The Government are considering a similar recommendation, made by the Law Commission, which has additional safeguards. I note the comments of the right reverend Prelate the Bishop of Chester, suggesting a test of reasonableness or fairness when making an agreement, and the need for independent advice, noted by the noble Lord, Lord St John of Bletso. We are considering introducing nuptial agreements and we will make our position known on this recommendation in due course. If the Government decide to go ahead, we will of course give consideration to the guidance needed for couples, as mentioned by the noble Baroness, Lady Falkner.
Clause 4 sets out a presumptive 50:50 split of property. People do not, of course, always leave a marriage equally. One partner often has better employment prospects. One partner is often expected to shoulder most of the caring responsibilities. The existing law allows for redistribution of assets to make up for this. The Government remain concerned that changing the law in the way proposed could have an adverse effect on the financially weaker party and their transition to full financial independence.
Clause 5 seeks, in part, to limit the duration of periodical payments to five years,
“unless the court is satisfied that there is no other means of making provision for a party to the marriage and that that party would otherwise be likely to suffer serious financial hardship as a result”.
I appreciate that periodical payments often draw headlines, being called “a meal-ticket for life” in divorce cases that involve the more affluent. However, it is worth noting that most people do not, in fact, apply for periodical payments when they divorce. It is important that one type of divorce should not cloud the debate around what happens to those of more limited financial means. We have, it is important to say, common ground in wanting to support people to move to financial independence. The Government are not persuaded, for the time being, that the existing law does not support this objective. However, as I said previously, we are happy to review any evidence that comes to light.
On Clause 6, the Government continue to believe that the existing provision on taking a party’s conduct into account remains adequate.
I have outlined the Government’s reservations about the Bill, but I want to focus on where we agree. While the Government’s position on the accessibility of the law and the clarity that it offers divorcing couples may differ from the position of the noble Baroness, Lady Deech, we all want the law to support couples and encourage a fair outcome. I am conscious, too, that other individuals and groups have also shown an interest in divorce finances, and the Government will wish to take a range of views, and solid evidence, into consideration if we conclude that reform is necessary. My honourable friend Dr Phillip Lee recently said in another place that he is hopeful that the Government can work across the House and beyond as we continue efforts to improve the family justice system. This remains true. It would not be helpful to approach consideration of reform in any partisan way.
I am aware that I have spoken at length and may not have covered as many points as I would have liked, but I really wanted to set out the Government’s position. If I am able to add more colour, I will write to all noble Lords who have spoken today. I acknowledge the mood on all sides of this House and the strength of support for the Bill. I assure your Lordships that the Government will reflect on all that has been said today.
Baroness Deech
My Lords, as you would expect from this House, a wealth of wisdom and experience has been shown. Some of the prime movers in some of the most important cases of recent years are right here and have spoken in support of the Bill. There has been support from right around the House, including from the Bishops’ Bench—what more does one need?
Before I address the government response, the main worries expressed by those who have spoken were about prenups. The Law Commission looked into this very thoroughly. There is actually a draft Bill appended to the most recent Law Commission report on this. If one is looking for consensus, one could pick up that Bill, already drafted, and run with it. I think it has a little too much uncertainty in it but there is no lack of consensus on the need to have prenups and the fact that they will not do any harm.
The other note of contention—not so much about discretion and statute, because we have that in every area of the law—was about the weaker partner. This brings me to something that I can only touch on lightly, which is how we see women today. In most other countries where they have a system like the one I have put forward, women actually feel less discrimination and have better childcare and more equal pay. There is a close relationship with the insistent message from some lawyers and judges—and, regrettably, some younger academics who are reinventing the wheel—that women are victims and women are suffering.
We changed the divorce law to “irretrievable breakdown” in 1969 and the message should have gone out to women then that, “You cannot expect to stay married because if your partner wants out he will go and there is nothing to stop him”. It is a bit late now to say, “If you are a housewife and you have given up your career to look after your children, a man will have to keep you”. He may not have any money. He may remarry to someone who is equally deserving. In our society now the Government say that women should take half of all positions on boards, should form half of the judiciary and should be in the Supreme Court—women should be running the world. I agree with that but you cannot at the same time say, “It’s all right. You will be kept. You don’t have to pursue a career. You are a victim”. We have to get away from this victim mentality and see women as equals.
To the Government I say: lack of consensus has never stopped the Government pursuing a reform if that is what they want to do. We can all cite many examples of that. I put forward a suggestion this year that we should have a Select Committee on family law, which would have brought the attention of the House to bear on these matters and maybe produced a consensus, but I am sorry to say that that notion was turned down in favour of what I have previously described as some motherhood and apple pie Select Committees in this Session.
The guidance that the Minister referred to has never been cited in a case—it has not achieved any sort of consensus, as the noble Baroness, Lady Shackleton, pointed out—nor has the guidance which is put forward for litigants, or they would not be weeping in court, as I have seen them do, and spending so much money. It has not worked. The Government are missing the point if they think that that guidance is going to help. Anyway, what sort of condition is the law in when you have to set it to one side and turn instead to guidance put together by the Family Justice Council? It is not binding and it has not helped.
The Minister said we need evidence. We have a wealth of evidence from the whole of the western world: Europe, America, Canada and, most notably, Scotland. It has worked there since 1985. The evidence in the report Built to Last shows that no more women are going on social security than before. The evidence is there. England is an outlier. This is not a situation to be proud of. Why not get on with it? The more years that go by, the worse it will be. The money that is wasted on legal costs would rescue many middle and lower-income couples from the penury that they might otherwise face on divorce. So I am not satisfied with the government response. I think they will find that the public are not satisfied with their response. When this is covered in the media, they will find that the weight of opinion is against the “make do and mend” attitude that we have just heard.
On that note of severe dissatisfaction, I ask the House to give the Bill a Second Reading.