Parental Bereavement (Leave and Pay) Bill

Lord Harrington of Watford Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Friday 11th May 2018 Commons Chamber

[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.

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[Bill Esterson]

Surely not!

[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.

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[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.