Children and Families Bill

Viscount Younger of Leckie Excerpts

Wednesday 20th November 2013 Grand Committee

[Lord Stevenson of Balmacara (Lab)]

My Lords, we have moved on to Part 6 which has been greatly anticipated on my side of the House and, I am sure, with equal enthusiasm and excitement by my noble friend the Minister. We have a substantial number of amendments to get through and I know there is pressure on all sides to try to complete this within the time. We will do what we can to achieve that but there are still some very important issues that we want to pick up and I make no excuse if we spend some time debating them. Having said that, I reassure the Minister that, by and large, the Opposition are very pleased to see many of the measures that are proposed in these parts of the Bill. We have comments for discussion and we will do our obvious constitutional duty to scrutinise those things that are there, but we are not making major objections to them. We seek to refine, occasionally to add and perhaps to probe the Government a bit more on some of the reasons why things do not appear as we would like them to. I am also grateful to the Minister for allowing us a chance to talk to him and the Bill team which was very useful.

Amendment 266AZA would ensure that there is flexibility in the legislation for exceptional circumstances. The purpose is to ensure that if children need to be looked after in exceptional circumstances, the parental leave enabled by the substantive clauses can be allocated to someone else such as a grandparent, an aunt, an uncle or even the father if he would not ordinarily qualify.

It does not take much to imagine how devastating exceptional circumstances could be. It may be that the mother becomes incapacitated, very ill or even dies in childbirth, or that there is some other complication such as a late-pregnancy stillbirth—something that my mother suffered—that will require urgent and immediate assistance but also longer-term assistance over the period covered by the shared parental leave. At present they would be able to take only a limited amount of time—almost certainly unpaid time off for dependants—if indeed it were granted by their employer.

Similarly, there may be circumstances in couple families where the mother is unwell but the father does not qualify for shared leave to care for the new baby. The Bill should make provision for exceptional circumstances when shared parental leave and pay could be transferred in such difficult and, as I have said, exceptional circumstances. Surely we ought to be doing everything that we can to support families in these circumstances.

We had a previous meeting with the Minister in which we had a brief discussion on this point, and I have read the response of his honourable friend in the other place. I understand that he may feel that the amendment could distract from the main thrust of the Bill and that his initial position may be that the Government do not expect parties who are not parents or partners to share parental leave. I also fully understand, to anticipate other amendments due to come up shortly, that the Government do not want to weaken the engagement of fathers in raising their children. We accept that there is strong evidence that the early engagement of fathers in caring for their children leads to positive outcomes for children. However, the amendment is really about exceptional circumstances, already outlined, in which other statutory provisions may just not work or, if they did work, would not be sufficient, as in the case of a late stillborn child, where of course by definition shared leave cannot be invoked.

If the Government cannot accept this amendment—although I hope that they will—perhaps the Minister will acknowledge that they might consider using the provision under the new sections in the Bill to make regulations for these sorts of extenuating circumstances. I beg to move.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)]

My Lords, I thank the noble Lord, Lord Stevenson of Balmacara, for bringing this matter to the attention of the Committee, and for his broad support for the shared parental leave provisions.

The noble Lord’s Amendment 266AZA proposes that in certain prescribed circumstances, other family members or related parties should become entitled to shared parental leave. The circumstances that he has outlined include where a mother is incapacitated, where a medical practitioner prescribes that the mother is unable to care for her child, and where the mother dies in childbirth.

Nobody would wish for any family to have to deal with these difficult and sometimes tragic situations. Unfortunately, many families have no choice. The challenge of looking after a very young child in these situations may be overwhelming. Often relatives or family friends step in to help those concerned, and it is important that we recognise the extremely important contribution that these individuals make, often in particularly challenging circumstances.

However, it is essential to remember what the introduction of a new system of shared parental leave and pay is aiming to achieve. This policy aims to facilitate shared parenting. This means encouraging greater paternal involvement. Many fathers want to be more involved in the upbringing of their children, and there is clear evidence that this brings real benefits not only to the parents but to children and young people themselves.

In the circumstances that have been raised during this debate, shared parenting—in a very literal sense—is not possible. The amendment tabled by the noble Lord, Lord Stevenson, would enable the sharing of leave with another family member or related party when the mother is unable to care for her child, either through incapacity, illness or death.

The way in which shared parental leave may be taken in circumstances where the mother dies will be set out in regulations. For the benefit of the Committee, I will outline how the Government envisage that this will work. If the mother dies before the parents have opted in to the new system—for example, if she dies during childbirth—an eligible father or partner will become entitled to the full balance of shared parental leave and pay. If the parents have already opted in to the new system, any outstanding leave and pay for which the mother was eligible will become available to the father or partner, if he is eligible.

The Government do not intend to make equivalent provisions where the mother is incapacitated or where a medical practitioner prescribes that a mother is unable to look after her child. This is because the mother may need to remain on maternity leave, or may make a recovery and wish to use the balance of her shared parental leave in the way in which she had originally envisaged. It may not always be possible to determine how permanent a change in situation is.

The Government recognise the extremely valuable contribution that relatives and friends make to support families at a difficult time. However, we do not believe that these individuals should become entitled to shared parental leave and pay. It is essential that we send the right message to fathers that their role as a parent is as important and valued as that of the mother.

I am grateful for the opportunity to discuss these issues with the Committee and I ask the noble Lord to withdraw his amendment.

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[Lord Stevenson of Balmacara]

I support my noble friend Lady Lister in her amendment and have added my name to it. I thank the noble Baroness, Lady Tyler, for her contribution to this debate. This matter seems central to the thrust of this section of the Bill and it seems odd that the logic set out in the original consultation paper and impact assessment has not been brought to a proper resolution within the Bill.

Two issues are clearly at play here. It seems perverse not to permit people who may have a complicated and difficult transition between full-time caring and going to work to do that in chunks of less than a week. Although this has been explained to me by two notable experts, I still do not quite get why it is so difficult to calculate pay in terms of less than a week. I understand the complications of doing it on a shared-parenting basis, because there are two sets of employers and two sets of payments to be looked at and, obviously, the Government are the third person in the room. Even so, when I was last involved in serious payroll work, we had pretty good figures for what it cost to operate in terms of an hour, a day or a week. That came up particularly in relation to strike action. I am sure that the noble Viscount will have been in similar situations, although I am sure that workers in his businesses were never on strike against him. However, when workers go on strike and you have to deduct pay for it, you have to work out exactly what it is, otherwise you get into trouble. In the systems that I was operating, we had a clear view of what the cost was at that level. If you can calculate what it costs per hour to employ somebody, you can presumably also make the system flexible enough to allow them to work in less-than-week blocks, which is one of the proposals in the amendment. On part-time leave, all the points have been made and I support them.

[Viscount Younger of Leckie]

My Lords, the Government understand the intention behind the amendment and I am glad of the opportunity to have this short debate on the issue today. Before I respond to this specific amendment, I should like to take a moment to set out the rationale behind the introduction of shared parental leave and the importance of these changes for families. Bearing in mind the tenor of the comments made earlier by the noble Lord, Lord Stevenson, about brevity, I shall attempt to be brief.

The restrictions in the current maternity and paternity system are outdated and do not reflect the way in which modern families want to raise their children. They compel mothers to take the bulk of the time off and give fathers no choice but to stay at work in the early stages of their child’s life. This approach maintains the outdated perception that a mother’s place is in the home and a father’s place is at work. It is known to damage women’s career prospects, because employers expect young women to take large amounts of time out of the workplace to raise children. It can also mean that mothers feel unsupported in caring for a child, and fathers do not feel involved in their child’s upbringing.

It is right that mothers are able to take all the leave that they need to recover from birth and to bond with their new baby. However, they should be able to return to work without sacrificing the rest of their leave. This should be available to the family to use in whatever way they choose. For some families, this will mean that the father takes on the majority of the caring responsibilities very shortly after birth. For others, it will mean mixing periods of work with periods of leave to share childcare. This Bill will make this possible for the first time. The introduction of shared parental leave and pay aims to give families flexibility in how they share childcare when they have a baby. The current arrangements are rigid and inflexible, enabling only one parent to take leave at a time and allowing parents only to “take it in turns” to care for their child.

The changes introduced by the Bill will enable parents to take leave in blocks as small as one week and will remove the restriction on parents taking leave together. The Modern Workplaces consultation, which the Government published in May 2011, set out the Government’s ambition for leave to be taken in blocks of less than a week to allow parents to take leave on a part-time basis. Unfortunately, in this instance, this worthy ambition has not been possible. I will explain why.

The UK has one of the most flexible labour markets in the world. UK employment legislation gives employers and employees freedom to agree individual contracts between themselves, without restricting them to set working hours or working patterns. Shared parental leave is flexible. It will allow parents to choose how to share it between themselves and to take leave as an individual right, in discussion with their employer. This variation in working arrangements creates a difficulty when trying to allow shared parental leave and pay to be taken in part-week blocks.

Here, I disagree with the noble Lord, Lord Stevenson, over the mathematical calculations. One parent may have a standard working week of 37 hours a week, or 7.2 hours per day, and their partner may work 16 hours per week working two eight-hour days. Calculating the ratio of the weekly entitlement to shared parental pay that should be paid when an individual takes one day off would be complex for an employer. However, this is magnified when a parent decides to transfer their remaining part-week entitlement to their partner for them to use. It would be even harder for small businesses, without access to an HR resource, to administer. The Government are mindful that shared parental leave and pay will be an innovative system. To add into the new system the facility to take leave and pay in periods of less than a week risks creating significant additional costs and burdens for employers.

The Government instead propose to allow shared parental leave to be taken on a part-time basis, using a principle that is already well used and understood by employers. Under existing maternity leave provisions, mothers are able to return to work for 10 individual working days without ending their maternity leave or losing their entitlement to maternity pay for that week. These are called keep-in-touch, or KIT, days. The Government propose to give parents on shared parental leave additional keep-in-touch-style days to allow part-time working on shared parental leave without affecting entitlement to statutory shared parental pay. It is intended that these days will have a different name in the context of shared parental leave, which I hope addresses one of the points made by the noble Baroness, Lady Lister, because the intention for shared parental leave would be different from the intention for maternity leave. The name would reflect the fact that these days can be used to achieve a part-time working pattern or a staggered return from shared parental leave.

The Government are aware that some interested parties, such as the TUC, are concerned that there is no requirement on an employer to pay an employee more than their statutory payment when they are taking a keep-in-touch day. The Government will provide guidance to employers on how to use these provisions and will strongly encourage employers to pay an employee their full contractual rate if they work on a keep–in-touch day.

The Government believe that it is important to maintain the flexibility in keep-in-touch days to allow parents to return to the workplace for short visits. The Government do not wish to discourage these sorts of visits by forcing an employer to pay an employee’s contractual rate. However, where an employee is undertaking work, it is appropriate that that employee is paid accordingly. Keep-in-touch days are entirely discretionary for both an employee and employer to use. An employer cannot insist that an employee uses a keep-in-touch day and an employee cannot insist that their employer allows them to work part-time by using a keep-in-touch day.

As I have mentioned, shared parental leave and pay is an innovative system and will need time to bed down. It is right that proposals for leave and pay to be taken in periods of less than a week should be considered alongside any review of the shared parental leave system. The noble Baroness, Lady Lister, asked why we do not take powers in the Bill to allow shared parental leave to be taken on a part-time basis, to be set out, in effect, in regulation. The Government are sympathetic to this proposal but without a clear policy to enable the shared parental leave to be taken part-time, regulations cannot be designed at this time. My department has explored this fully and will continue to consider it as part of the review of shared parental leave.

I hope that reassures the noble Baroness that the Government share her ambition and I ask her to withdraw her amendment.

[Baroness Lister of Burtersett]

My Lords, I am very grateful to the noble Baroness, Lady Tyler, and my noble friend Lord Stevenson for their support for this amendment. The noble Baroness’s own experience is extremely important in terms of easing children back into childcare.

I will say more about this when I speak to my next amendment but I very much share the Government’s philosophy, as set out by the Minister, on shared parental leave. That is why I am so disappointed that they are not willing to go that little bit further.

I can see that there are administrative difficulties; I am not convinced that they cannot be sorted out. I am slightly encouraged by what the Minister said about changing the name of the keep-in-touch days and sending out guidance to employers about payment. I do not know whether the Minister has any figures now—perhaps he could let me know—on what proportion of such days are paid at present. It would be quite helpful to know that, perhaps before Report, in case we want to come back to this matter.

No one is asking for these regulations to be drafted now. Quite often a Bill will go through and regulations are not drafted for some time afterwards. Would it not be easier to put them in the Bill now? Even if nothing is done until the review takes place, at least they are there without having to legislate again, if by that time it becomes clear that part-time leave is really necessary for the shared parental leave provisions to fulfil the goals that we share with the Government. I hope that the Minister might be willing to think again about that. We are not asking for those regulations to be laid now, simply that the framework is there to enable flexibility in the future. On that basis, I withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, Amendments 266AB, 266AC and 266C in this group stand in my name. Taken together, these would ensure that existing protections in relation to redundancy and leave are not lost by requiring rather than permitting regulations regarding redundancy during shared parental leave to be made and to include provision requiring an employer to offer alternative employment.

Amendment 266C would enable a parent who has taken a period of leave of 26 weeks or less to return to the same job, and not just a job within the same employer. My noble friend Lord Touhig has set out the general case for where these amendments would take us. I would like to pick up a particular aspect of that which is the growing concern about discrimination. Maternity rights and employment regulations that enable parents to balance work and family responsibilities have been key drivers in giving women greater access to work and, importantly, an independent income. Over the past few decades, thanks in no small part to changes to workplace protections, women have entered and stayed in the labour market in unprecedented numbers. However, there is still far to go. Our workplaces have not adapted to meet the needs of this changing and gender-diverse workforce. Women pay a penalty in the workplace as a result of spending time away from the labour market to have and care for children, and this time away often negatively affects future career prospects and earnings. This “motherhood penalty” helps hold the glass ceiling intact and reproduces gender stereotypes about women as the “caring sex” that fuel occupational segregation, to which the Minister referred in a previous debate. People often talk about jobs being characterised as men’s or women’s work. For too many women, this still culminates in pregnancy discrimination more generally in the workplace.

One of the cumulative impacts of the effects of the “motherhood penalty” is that it ultimately leads to a lack of women in positions of power at the top of all quarters of political, public and professional life. We surely all feel that that is out of date. Even before the recession began, it was estimated by the Equal Opportunities Commission that up to 30,000 women lost their jobs due to pregnancy discrimination each year. There has been no similar research into the incidence of pregnancy discrimination following the economic downturn, but all the indications are that it has increased significantly. In times of austerity, when employers cannot afford to take any perceived risk to making profit and growing business, discrimination against women in the workplace is likely to rise as women, particularly of child bearing age, appear to be the riskier and less affordable choice for employers.

Working Families, which has been helping us with research in this area, has evidence that many women are subject to discrimination while pregnant or on maternity leave. Its helpline report provides evidence of a hardening of attitudes among employers and more blatant discrimination taking place. This includes women being sidelined or left out when promotions are being considered, demoted on return from maternity leave, and in some cases women suffer harassment and pregnant workers are sacked. These are unacceptable practices and these amendments would help to remedy them.

[Viscount Younger of Leckie]

My Lords, I am glad that these amendments give us the opportunity to debate the detail of how shared parental leave will work in practice for families. Shared parental leave will offer families new choice and flexibility about how they manage their childcare arrangements in the first months of a child’s life. It is true that this opportunity will be used by parents only if they feel confident that they will continue to be treated fairly in the workplace when they return.

Current maternity and additional paternity leave provisions provide protections to parents against dismissal; additional support when parents are absent from the workplace during a redundancy process; and the right to return to work into the same job, or in certain cases if that is not reasonably practicable, a similar job that is suitable for them and of equal standing. These protections are important to parents and will directly influence the decisions they make in whether to take maternity or paternity leave. Mothers on maternity leave and fathers taking additional paternity leave currently have protection from detriment while taking leave. Parents taking leave also have the right to be offered a suitable alternative vacancy in a redundancy situation, where there is one available. This alternative must be suitable and appropriate for the individual.

The Government recognise that it is important to provide employees with protection from discrimination and detriment when they are absent from the workplace for parental reasons. I am grateful to the noble Lord, Lord Stevenson, for raising this. I believe that we think alike on this important issue. Furthermore the Government believe that pregnancy discrimination and discrimination against parents taking leave to care for their children is unacceptable in any form. This is why the Government have recently announced new research into the attitudes of employers on pregnancy and maternity leave as well as the prevalence and causes of pregnancy discrimination in the workplace. This research will be jointly funded by the Commission for Equalities and Human Rights, the Government Equalities Office and my department, the Department for Business, Innovation and Skills.

I would like to reassure the Committee that the Government intend to make regulations to provide appropriate protections for employees in the case of shared parental leave. The Government recognise that it is important to provide protections for parents who are absent from the workplace on parental leave and are currently considering the most appropriate way to protect parents taking shared parental leave from being disadvantaged in a redundancy situation. The Government intend to publish draft regulations in the coming months on all key elements of the shared parental leave policy. This will include the details of the protections while on shared parental leave. The Government’s approach will recognise the difficulties that parents may face when taking shared parental leave. Any protections will be proportionate to support parents in an effective way, enabling them to take leave with confidence that they will not be disadvantaged. This will be balanced with the needs of employers to be able to manage their employees effectively.

I turn now to the right to return to the same job. Mothers returning from a period of ordinary maternity leave have the right to return to the same job. This protection is also applied to fathers taking additional paternity leave. Where mothers return to work after a period of additional maternity leave they have the right to return to the same job, or where this is not reasonably practicable, the right to return to a similar job which is suitable and appropriate, the point that the noble Lord, Lord Touhig, made earlier. The Government consulted on how to apply these important protections to parents taking shared parental leave in an appropriate manner. Shared parental leave will create different challenges for employers. An employee will be able to take short, discontinuous absences from the workplace under shared parental leave and this means that employers will have more opportunity to engage an employee in any reorganisation at work while they are in the office.

The Government are currently carefully considering the responses to the consultation on the administration of shared parental leave. This includes how to apply the right to return to the same job to parents taking shared parental leave. I am grateful to the noble Lords, Lord Stevenson and Lord Touhig, for bringing this important matter to the attention of the Committee, but I hope they are reassured that the Government intend to provide protections for parents taking shared parental leave, and the commitment that the details of this will be set out in regulations in the coming months. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.

[Lord Touhig]

My Lords, in what seems an age ago now, I was once the Labour Party parliamentary candidate in Richmond upon Thames and I was invited to address a conference of Labour women. I saw the hackles go up when I said that, as a country, we were wasting a fortune educating women because when they complete their education we put every barrier in their way to stop them getting a job and having a family which, as a man, I take for granted. We still have a long way to go to make sure there is fairness and equality for women in the workplace. I am encouraged by what the Minister says about how we might see the hopes of the amendments tabled by myself and my noble friend Lord Stevenson realised in regulations. All I can say to him when he draws up his regulations is to think of the Welsh “chwarae teg”—fair play. That is all we are asking for. I beg to withdraw the amendment.

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[Viscount Younger of Leckie]

My Lords, I welcome this debate because it is important to ensure that the changes made by the Bill provide the right framework for modern families and workplaces. I commend the noble Baroness, Lady Lister, on the tremendous work she has done in the field of gender equality, and I know that she speaks from a position of great experience when debating these issues. As we are on the subject of gender equality, the noble Baroness raised the issue of the gender pay gap, quite rightly, through encouraging fathers’ involvement in home life. The Government agree that this is extremely important. That is why we are extending paternity pay powers in this Bill and will look to extend paternity leave and pay at a later date if we need to encourage fathers’ take-up, but I will be saying a little bit more about that later in my comments.

Greater paternal involvement brings enormous benefits to parents and children. Fathers who are engaged in caring for their children early on, as has been mentioned, are much more likely to remain involved as their child grows up. This involvement means that their children benefit from better peer relationships, lower criminality, fewer behavioural problems, higher self-esteem and higher educational attainment and occupational mobility. The Government are aware of the international evidence that demonstrates that fathers are more likely to take leave if it is reserved specifically for them and paid at a higher rate. The Government’s original ambition to extend leave reserved exclusively for fathers was set out in their Modern Workplaces consultation, which has already been pointed out. It consulted on the concept of a so-called “daddy month”, which would have reserved a portion of shared parental leave for fathers in a very similar way to the “father quota” leave entitlement proposed in this amendment.

Unfortunately at this time it is not possible to realise this ambition. The challenging economic circumstances have made such an extension simply unaffordable. Perhaps the noble Baroness, Lady Lister, will not be too surprised when I mirror what was stated in a response in the other place. Now is not the time to place additional burdens on businesses and the Exchequer and I realise that this immediate response will be disappointing to the noble Baroness.

The new system of shared parental leave will give families unprecedented choice about how to share the leave entitlement in the early stages of their child’s life. The Government hope that the flexibility and choice provided by the new system of shared parental leave will mean that fathers will take more time off to care for their children. The Government plan to review the decision on whether to extend paternity leave and pay by using information on the take-up of shared parental leave and pay from the series of surveys on maternity and paternity rights and work-life balance. If fathers are not taking up the new entitlement, the Government will look to extending paternity leave and pay to encourage more fathers to take leave.

The Government are taking powers in this Bill to allow for the extension of paternity pay which would enable the Government to extend paternity leave and pay at a later date through secondary legislation. I want to make that clear to the Committee. To maintain simplicity in the system, the Government consider it more appropriate to extend leave to fathers through an extension of paternity leave rather than introducing a new type of statutory leave which would be complicated to administer. Paternity leave is reserved exclusively for fathers and is already well established and understood by fathers and employers.

The noble Baroness, Lady Lister, mentioned an annual review. An annual review of this policy may not be possible or appropriate. The shared parental leave policy aims to encourage a long-term culture change in the UK to enable and encourage shared parenting in the early months after birth. Any assessment of the outcomes of the policy needs to understand how employee and employer attitudes, as well as behaviours, are changing. There needs to be flexibility in how this is monitored. The best source of information to understand employee attitudes is through surveys of employers and employees. This data take longer to collate to ensure that the survey includes individuals who have experienced shared parental leave. The Government believe that this is the most appropriate information to inform decisions about the effectiveness of the policy.

The noble Baroness, Lady Meacher, and other noble Lords in the Committee raised a very important issue about culture and the culture change that was necessary. I agree completely that culture change is what we need to see and the Government agree that it is essential. We will provide supporting guidance as soon as we can to help this change happen and to encourage employers and employees to embrace it. The extent to which the culture change we all seek has come about will be a critical part of the review of these reforms once they have had time to bed in.

The noble Baroness, Lady Lister, raised the issue of the father’s quota. If it would help, we will write to her with more details on that, in addition to the letter that I have written. The noble Lord, Lord Stevenson, asked why the level of take-up for fathers is estimated at between 2% and 8%. The impact assessment used figures from the maternity and paternity rights survey that I alluded to earlier in which fathers were asked whether they would like to take more time, if it was available. However, those are initial take-up estimates, and we hope that the culture change that I mentioned earlier will encourage a higher take-up in due course.

I hope that the noble Baroness, Lady Lister, and the noble Baroness, Lady Young of Hornsey, who is not in her place today, are assured by the commitments that we have made. The Government will review the take-up of shared parental leave by fathers and consider extending paternity leave and pay in due course, to encourage fathers to take shared parental leave. Finally, I can reassure the noble Baroness, Lady Lister, that if paternity leave and pay is extended at a later date, the period within which it can be taken will also be extended. However, I hope, in the mean time, that she will withdraw her amendment.

[Baroness Lister of Burtersett]

My Lords, I am very grateful to the noble Baronesses, Lady Tyler and Lady Meacher, for their support for this amendment. The noble Baroness, Lady Tyler, made a very important point about the workplace culture. The experience of some of the Nordic countries is that changing the workplace culture is crucial in encouraging fathers to take leave. There is a link between the right to parental leave and changing the culture, and I hope that the department will reflect further on that.

On the point made by the noble Baroness, Lady Meacher, it seems to me that if both parents were more involved in bringing up their children, it might keep them together. I am not sure whether there is any evidence to support that, but we know that conflicts about who does what in the home and so forth can contribute to breakdown. I am grateful to my noble friend Lord Stevenson for going as far as he was able to in the context, as I know he is sympathetic. I think we are all sympathetic, including the Minister. It is frustrating because I feel like the Minister made my case, in a sense, very eloquently, but then drew back from it by refusing to take that extra step.

I think I heard the Minister correctly and that he has made the commitment I asked for, which was that if paternity leave is extended, it can be taken later. The Minister is nodding his head, and it is very helpful to have that on the record. We now know that if paternity leave is extended at a future date, it could be taken—I hope he is saying—at any point during the parental leave period. That will reassure organisations outside that have been campaigning on this.

Unless this is what he proposes to write to me about, the Minister did not respond to my question about what plans the Government have to encourage fathers to take shared parental leave and whether he would give a commitment to consult on such plans and study what has been happening. There is a wealth of expertise—not so much mine but within this network—about what is happening in other countries. Again, I think the Minister is nodding his head, so perhaps I could put into the record that he is prepared to consult with the network of experts about how to achieve this culture change, even if we cannot go the full way in terms of having “daddy leave” in the legislation. The Minister has been nodding and not shaking his head in response to everything I have said. Does he want to say anything more?

[Viscount Younger of Leckie]

I will just confirm that, as part of the review, these issues will be looked at. It is extremely helpful to have the input and the views from the Nordic countries. I suspect that officials are already looking at that but it is helpful to be nudged in the right direction. We will certainly be looking at this in addition to the other aspects of the review.

[Baroness Lister of Burtersett]

My Lords, I thank the Minister, but we do not want to wait for the review in 2017-18 before steps are taken to try to achieve this culture change. The culture change needs to be achieved alongside the introduction of shared parental leave. Again, I hope that a commitment will be made to thinking now about how to make that change, rather than waiting for a formal review. Unless the Minister has anything else he wants to add on this point, I will withdraw the amendment.

[Viscount Younger of Leckie]

I rise only to say to the noble Baroness that I will be happy to continue these discussions with her. I stated earlier that I have not made a commitment to come back before 2018 and I would not want to do that today. Clearly, it is in everyone’s interests to make this work, and I have already said that we need more time than the noble Baroness has indicated in her remarks to ensure that the review comes through. However, we are happy to commit to consulting expert organisations both at home and abroad on how to achieve the culture change, which is something that I alluded to earlier.

[Baroness Lister of Burtersett]

I am grateful to the noble Viscount and for the constructive way in which he has engaged in this debate. On that basis, I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, this is a long group, with a large number of amendments. It breaks into two parts. As I listened to my noble friend Lord Touhig’s very eloquent contribution on the question of multiple births, I wondered whether it might have been better to have a separate debate on each of them because the points he makes are very interesting and we do not want to lose them in consideration of other areas. I will plough on and hope that the Minister will deal with this group of amendments in two parts, even though I will be mixing them up in what I say.

The amendments in my name in this group remove the limit on fathers’ or secondary adoptive parents’ time off to attend antenatal appointments, which is currently restricted to two occasions of six and a half hours each. Amendments 267F and 267H introduce an alternative of “reasonable” time off for fathers or secondary adoptive parents. Amendment 267K proposes that additional time off should be provided for fathers or secondary adoptive parents where the pregnancy is of twins or multiple births, so in that sense it reaches out to the points that my noble friend Lord Touhig was making.

The introduction of time off for fathers and adoptive or surrogate parents to attend antenatal appointments is very welcome. However, the Bill not only limits the unpaid time off to just two appointments but prescribes the maximum amount of time that fathers can spend away from work to six and a half hours per appointment. The time limits should be determined by regulations—if at all—and should not be in the Bill.

I know it is a rule of thumb that Governments try to take Henry VIII powers whenever they can in legislation and Oppositions traditionally oppose them but I am afraid I am turning the cart round this time. I think the Government are being too detailed here. This area requires a sensitive regulatory approach; for example, the amount of time you need to go to an antenatal appointment largely reflects the complexity of the pregnancy and, indeed, whether it is a single or multiple pregnancy. If it is multiple, we know that that requires more scans. Having the time to do that is not just about the forthcoming child but is a chance for the other parent to be involved in looking after existing children.

We have a complicated situation here. We think it would be more sensible to try to find a formulation—which we have tried to set out in the amendments but we quite accept might need to be refined—under which fathers and secondary adoptive parents are allowed reasonable time off rather than only two appointments. After all, it is the case already that pregnant women are entitled to reasonable and paid time off to attend antenatal appointments, so we are looking for a bit of symmetry in that.

When we were having our second child, we had a rather complicated pregnancy, which took a lot of time, not just in travel to and from hospital but in the hospital and waiting times. I have personal experience of this and I understand the complications. I was lucky in that I was in charge of my own time and I could take the time off, but I recognise that if I had been responsible to another employer it might well have been difficult to get the sort of time that I felt was important to spend with my partner. I have a personal interest in that but it is not the determinant of my thinking. There is a broader issue here that the regulations would be a better place to do that.

I know that there will be arguments about the cost of absence and that employers may feel that, if nothing is put down, employees will take “sickies” and try to take more time than is required, but pregnancy is a complicated time. We should accept that there may be some rough edges to what one might want to do here, but the Government should try not to overspecify something that, by its very nature, will be more complicated and more reflective of the needs of the individuals concerned. I hope that these points will be taken into account.

[Viscount Younger of Leckie]

My Lords, I thank noble Lords for raising these important issues. Like the noble Lord, Lord Stevenson, I shall deal with the amendments in two parts.

I shall speak, first, about antenatal appointments and the amendments tabled by the noble Lord, Lord Stevenson, and my noble friend Lady Brinton. The Government wish to encourage the involvement of fathers and partners in pregnancy from the very earliest stages. Attendance at antenatal appointments forms a key part of this involvement. Research demonstrates that the greater the involvement of the father in the pregnancy, the more likely he is to remain an active father when the child is growing up.

Antenatal appointments are essential in all pregnancies to care for mother and baby. In cases where there are complications, they are particularly important. Complications during pregnancy may be associated with specific circumstances such as multiple pregnancies or existing health conditions.

Any pregnancy, however, can develop complications. This can happen at any stage and is always distressing for the parents involved. It is also likely to mean that the pregnant woman will need to attend additional antenatal appointments, often at short notice. Many fathers will wish to accompany their partners to these appointments to give practical and moral support. The Government wish to encourage them to do so.

Fathers and partners currently have no statutory right to time off to accompany their partner to an antenatal appointment. The changes that the Government are making in this Bill will enable all fathers who are employees or agency workers to take time off to attend antenatal appointments on two occasions. Equivalent provisions are also being introduced for adopters and certain intended parents in surrogacy arrangements. This is a significant step forward. It is important to emphasise that this provision is intended to provide a minimum standard to enable all fathers to take some time off to attend antenatal appointments with their partner.

Sixty-seven per cent of fathers currently take time off to attend antenatal appointments. Some are able to come to an informal arrangement with their employer; others may, for example, take annual leave or attend the appointment in the morning and make up time later in the afternoon. It is the Government’s hope that this right will encourage more fathers to take time off in addition to the time allowed.

The right to time off is capped at six-and-a-half hours per appointment. The Government want the amount of time off to which an employee is entitled to be reasonable to attend an appointment in their home area. Six-and-a-half hours represents half of the maximum working day under the terms of the working time directive. It is important to have a cap in order to be clear about what the maximum entitlement is and to avoid an employer having to go through a bureaucratic process to determine what is reasonable in the circumstances of their employee.

The introduction of this entitlement should help to create a culture change that makes more commonplace fathers taking time off to attend antenatal appointments. In turn, this will mean that more employers accommodate provisions beyond the statutory minimum. The impact of these provisions will be reviewed alongside the package of reforms in this Bill that introduce shared parental leave.

[Lord Stevenson of Balmacara]

I am grateful to the Minister for giving way. I did not detect the softening that I was hoping for in that response. Is the Minister really saying that a 6.5-hour standard for attending appointments will be in the Bill? Where does that place people who live in the Highlands of Scotland or remote parts of Wales, whose hospital will be several hours’ journey there and back? It seems ridiculous to specify something which the Government must know could not possibly be the standard applied in certain areas of the country.

[Viscount Younger of Leckie]

Of course, the noble Lord makes a fair point but this is the minimum requirement that is laid out. We feel it is fair that this should be done on the case of the maximum entitlement. There is every hope, particularly for those employees who work in the Highlands, for example, that the employer will take a reasonable view and will allow more time off if necessary, but we feel that six and a half hours is pretty reasonable.

I turn to the amendments tabled by the noble Lord, Lord Touhig. These relate to additional maternity provision for mothers who have multiple births. The early months after the birth of a child are often a joyful and exciting time, but I think everyone in this Committee would agree that they can also place great demands on parents. These demands are amplified when there is not just one new baby to care for, but two or more. Straightforward tasks such as feeding, changing nappies or leaving the house can pose enormous challenges. Multiple pregnancies often result in premature births, bringing additional health complications for the babies and stress for the parents.

Financial pressures on families with more than one baby increase as well. Having a baby is expensive, but when the costs double or triple it can be very daunting for the individuals involved. I can understand the desire of the noble Lord, Lord Touhig, to ensure that parents who have multiple children from the same pregnancy receive support at this challenging time. I applaud the fact that he produced some interesting statistics to support his comments. It is important, however, to bear in mind that the period of maternity leave to which women are entitled in Great Britain is one of the longest in the world. The purpose of this leave is to enable the mother to recover from birth and to bond with her new baby or, in the case of a multiple birth, her new babies. The amount of time off work that mothers take will vary depending on the needs and wishes of the individual.

The current maternity leave entitlement is 52 weeks per pregnancy, to which all employed women are entitled. The Government believe that this leave entitlement allows all women sufficient time to recover from all birth circumstances and care and bond with the baby or babies prior to returning to work. The vast majority of mothers choose to return to work before the end of the maternity leave period. Eligible mothers are also entitled to up to 39 weeks of statutory maternity pay or maternity allowance. Statutory maternity pay is paid at 90% of earnings for the first six weeks of maternity leave, and at the lesser of 90% of salary or £136.78 per week for the subsequent 33 weeks. Maternity allowance is paid at the lesser of 90% of earnings or the flat rate of £136.78 for the full 39 weeks. As with statutory maternity leave, this entitlement is per pregnancy rather than per child born.

Multiple babies will mean additional expenditure for families. It is important to emphasise, however, that statutory maternity pay and maternity allowance are not intended to go towards the additional costs of new babies. They are intended to provide a measure of earnings replacement to enable the mother to be absent from the workplace on maternity leave. The financial needs of different families will vary. The level of a mother’s income while she is absent from the workplace may also depend on contractual pay enhancements that are available to many women for part or, in some cases, all of their maternity leave. The eligibility of an individual for these statutory payments is underpinned by their labour market attachment and their relationship with an individual employer. The Government do not therefore consider it appropriate to link the amount of pay available with regards to any statutory pay following birth or adoption to the number of children in a pregnancy or adoption arrangement. I hope that noble Lords are reassured by this explanation and ask the noble Lord to withdraw the amendment.

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[Baroness Howarth of Breckland]

My Lords, I will speak briefly to make two points. First, as the noble Baroness indicated, this is both a short-term and long-term financial issue. The previous Government and the present one, I fear, have taken the same position, which is that paying kinship carers in the short term would be too expensive. However, as many noble Lords have pointed out, it has tremendous value and advantage in the longer term. I only wish that a Government could, if not introduce the whole package, at least take one step.

I remind noble Lords that the Select Committee on Adoption Legislation, which I was part of, pointed out that there was very little difference in outcomes— indeed there might be better outcomes—for children who were in special guardianship orders compared to those who were adopted. However, we treat those two groups in a totally different way. That is irrational. If we could just make a start with special guardianship, where there is an order and it is quite clear that the care is going to continue, we would feel we were taking a step forward.

Overall, we spend very little these days. The news today is that we are almost unable to meet our commitments to protect children with child protection procedures and that social workers are under tremendous pressure. I notice that the noble Baroness, Lady Massey, glanced at me, because I am a social worker by background, when she said that social workers are actually insisting that people take the time off—of course they are, because, as the noble Baroness pointed out, they have a responsibility to make sure that these children are properly cared for. Most of those social workers would be delighted if they could recommend that they were paid for that. The old Section 1 of the 1963 Act, which used to help with this, has long gone, and there are very few provisions now to help these families get through even the initial difficult times, never mind the longer period of caring for a child who is not their own, with all the pressures that such a child brings.

Being the unlikely founder of the All-Party Parliamentary Group for Grandparents and Extended Kin—which is another story—I am concerned for grandparents, because they have reached a point where they thought life was going to be easier and they were going to be financially secure. However, they then find themselves bringing up children in their family—as they would wish to rather than let anyone else take over the care of the children—and somehow the state does not see it in its purview to give help to these families. With the changes in the benefits system, these families are finding it more and more difficult to survive. Consequently, as noble Lords know, more children will come into care. These situations will break down as families can no longer manage or social services think that it is inappropriate for them to do so.

I am quite sure that these amendments will not be accepted, as they have not been accepted in the past. However, I wish that there could be some thought, and some work undertaken, to see whether there is a step change that can move forward, through the various groups, to make it easier, particularly when a family has a legal order and responsibility for the children concerned.

[Viscount Younger of Leckie]

My Lords, I welcome this debate on another important issue. As has been said, and as the noble Baroness, Lady Howe, alluded to, the Government recognise the extremely valuable contribution made by family and friends in caring for children who cannot live with their parents. Noble Lords have spoken passionately about this issue today and I am struck by the depth and breadth of expertise on this matter in this Committee.

The noble Baroness, Lady Drake, raised the important issue of kinship carers dropping out of the labour market. I note that the noble Lord, Lord Touhig, is not in his place, but I hope that I can go a little way to restoring my reputation as a listening Minister by saying that we agree that it is important that kinship carers can remain in the labour market. The evidence that we have about this issue is limited, but I hope that noble Lords will be reassured if I explain that we are actively researching this issue. I shall say more about that in a moment.

During the debate on support for family and friend carers, my noble friend Lady Northover described the financial support with which local authorities are encouraged to provide families to help them to cope with the strain that caring for an additional child may put on household budgets.

The type of care arrangement that kinship and friendship carers provide varies a great deal. Some families care for children who need support during a short-term crisis, such as a parental illness. Other individuals take on care of a child on a long-term basis. My noble friend Lady Tyler, and the noble Baronesses, Lady Massey and Lady Drake, highlighted some other examples, including some statistics provided by Grandparents Plus, parents’ rights groups and other groups.

Given the variety of arrangements that exist, the Government believe that it is right to assess the needs of each family at the local level. Local authorities are best placed to establish relationships with these families and appraise their financial needs on an individual basis. This enables them to provide targeted support to the right people at the right time.

Special guardianship orders provide a more formalised and legally secure foundation on which a child can build a permanent relationship with his or her carer. In many cases, the child may already be living with the family when they make an application for a special guardianship order. However, this will not be the case for all families and some may have to adapt quickly to significant changes in circumstances—a point that was made earlier.

Special guardianship orders are an increasingly popular “permanence” option for children. However, they remain a relatively new legal status and special guardians are a group about which the Government have limited data. In particular, there is insufficient information about the way in which special guardians adjust to their new caring arrangements and how this may impact on an individual’s ability to remain in the labour market. I hope that I can reassure the noble Baronesses, Lady Massey and Lady Drake, by saying that we believe that it is essential to understand the issues that are faced by this group in order to ensure that they receive the support that is appropriate to address their needs. For this reason, my department, the Department for Business, Innovation and Skills, will undertake research into kinship and friendship carers and special guardians, and their participation in the labour market. We have already started to scope this, liaising with the Department for Education.

I recognise that research is not the same as support, but it is the first crucial step towards understanding what policy interventions would be most appropriate to meet the needs of these individuals. I hope that this reassures the noble Baroness and I ask her to withdraw her amendment.

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[Baroness Massey of Darwen]

My Lords, I follow my noble friend Lord Stevenson in supporting this attempt to reach a healthy compromise. There is already a great deal of research and investigation into the plight of family and friends who are carers. I hope that that can be built on. There is a meeting with officials, which I think the Minister has set up for next Wednesday, and I hope that any noble Lord here who is concerned about this could get details of that meeting. I hope that at that meeting we could discuss this proposal for research and who will be involved. I hope, too, that, as the noble Baroness, Lady Howarth, has just said, that involvement will be integrated across various streams of various departments.

[Viscount Younger of Leckie]

My Lords, modern families come in all shapes and sizes, and it is important that we recognise the extremely valuable contribution that is made by many different individuals. I shall address each of these amendments in turn, beginning with Amendment 267BA. This amendment would require the Secretary of State to review the provision for kinship carers and special guardians, as moved a moment ago by the noble Lord, Lord Stevenson. As I have said in, as he put it, a carefully worded, but, I hope, clear response to the previous amendment, the Department for Business, Innovation and Skills will undertake research into kinship and friendship carers and special guardians and their participation in the labour market in order to ensure that support provided by the Government is appropriate to address these people’s needs.

The noble Baroness, Lady Massey, questioned the length of the research in the previous amendment and stated that plenty of research was already available. By way of reassurance—I hope that she takes it in this spirit—I would say that it is important that we take the time to scope the project properly in advance of starting the research. I welcome the input of the organisations mentioned and, indeed, others that might not have been mentioned. I give this commitment: I shall return to this House with further details on the likely timetable on Report and note some further carefully chosen words. The noble Baroness alluded to a meeting with officials that has been arranged. I confirm that it is set for next Wednesday at 11am. The Bill team will provide further details by e-mail about that meeting. I encourage as many people as would like to attend to come.

Turning now to Amendments 267A and 267B regarding adjustment leave for kinship carers and leave for carers, as I am sure noble Lords will agree, carers play a vital role supporting and caring for their children or loved ones, and they reduce the need for state funded care. These points were made with great passion today by a number of noble Lords. These individuals can often struggle to balance their work and caring responsibilities effectively and without support may not be able to stay in work. It is important that we recognise this contribution and provide carers with the support that they need to remain in the workplace. From time to time, carers may need time off to manage emergencies or breakdowns in care. Many kinship and friendship carers also experience a period of adjustment when a child comes to live with them. The noble Baroness, Lady Massey, gave the Committee a rather heartbreaking example of an occasion when a parent died of a drug overdose. If I read her correctly, the child appeared on someone’s doorstep.

Changes in living circumstances can happen suddenly and families may come under great strain to adjust quickly to the caring needs of a child who may be facing many complex issues and emotions. The right to time off for dependants enables them to take time off to make arrangements for their care. Once the child is living with kinship or friendship carers, he or she becomes their dependant, and any carer who is an employee will be entitled to time off. This enables the carer to take a reasonable period of time off work to take the action necessary to deal with specified short-term emergencies, and this is a day one right that is available to all employees. The employee does not necessarily need to give their employer advance notice of their intention to take leave under this provision as long as they inform their employer as soon as is reasonably practicable. This is because emergencies rarely come with notice, and again examples were given earlier in this debate.

The right to time off may not meet the needs of all individuals in all circumstances. Many employers provide additional forms of leave for compassionate reasons to enable employees to deal with sudden and often traumatic changes in circumstances. Caring is often a long-term responsibility. All carers, including kinship and friendship carers, may need to consider long-term changes to do with their changed circumstances. The Government believe that the right support for carers is to allow them to change how they work to better accommodate their caring role on a long-term basis.

Carers are already eligible to make a statutory request to work in a flexible way under the current legislation. However, the extension of the right to request flexible working in Part 8 of this Bill will drive a culture change which should mean that flexible working becomes more widespread and better integrated into standard working practice. My department, the Department for Business, Innovation and Skills, has been working closely with the Department for Work and Pensions and their private sector working group to encourage more employers to consider flexible working practices when they are designing and advertising jobs. They have developed, for example, a strapline to use when advertising jobs: “Happy to talk flexible working”. This should increase the availability of jobs that can be done in a flexible way, thus enabling more carers to remain attached to and re-enter the labour market.

Extending the current right to request to all employees will enable more people, including those who have more informal or infrequent caring responsibilities such as kinship or friendship carers, to retain an attachment to the labour market when they have experienced significant changes in their personal circumstances. The noble Baroness, Lady Drake, raised the issue of supporting grandparents to remain in work when they provide childcare. The Government agree that it is important to support the needs of older people and grandparents, and to help them stay in work, especially when they have caring responsibilities. This has been a key driver behind the extension of the right to request flexible working, and it will help these groups to balance work and care commitments on a long-term, sustainable basis. It will support the informal caring that is often provided by grandparents, about which I will have a few more words to say later.

I turn finally to Amendment 267C regarding emergency time off for grandparents. We have heard many examples of the invaluable practical and emotional support provided by grandparents to their children and grandchildren, an issue raised particularly by the noble Baroness, Lady Drake. I welcome this debate as an opportunity to pay tribute to the vitally important role that grandparents play in supporting families to juggle work and childcare responsibilities.

The issue of emergency time off for dependants was debated during the passage of this Bill in the other place. The Minister for Employment Relations and Consumer Affairs outlined the qualification criteria for this type of time off, and for the benefit of noble Lords I shall do so again here, albeit fairly briefly. This provision is intended to give employees a statutory entitlement to time off work to deal with an emergency involving a dependant. The qualification criteria for this type of time off are deliberately broad, and this is to ensure that any employee on whom a person reasonably relies to make arrangements for the provision of care is able to qualify for this type of time off in circumstances where there has been an unexpected disruption or termination of care arrangements. It is important to emphasise that the legislation enables all employee grandparents who are relied on to make arrangements for the provision of care for their grandchildren to qualify for this time off in such circumstances.

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[Viscount Younger of Leckie]

My Lords, this has been an important debate on a difficult and moving issue. I am pleased that the issue was raised at Prime Minister’s Questions by Tom Harris MP, as the noble Lord, Lord Knight, mentioned.

The death of a child is an event that no parent should have to experience and it is distressing to hear that some people are not given the time off work that they need. I was privileged recently to meet Lucy Herd, whose experience following the death of her son, Jack, was outlined so eloquently by the noble Lord, Lord Knight of Weymouth, at Second Reading and today. I found her story extremely moving and was greatly saddened to hear that her partner had not been able to take the time off that he needed to be at home with his family after his son had passed away.

The majority of employers respond to such an event with compassion and understanding, offering their employees the support that they need to take time off and to begin to deal with the consequences of the tragic event. I am pleased that the noble Lord, Lord Knight, recognises this. However, I accept that this is not the case for all parents. Even if such refusals of time off are very rare, they are naturally extremely upsetting for the individuals involved. I emphasise that an employer who does not enable a parent to take time off in order to take action that is necessary in consequence of the death of a child is acting unlawfully. The law is clear that the entitlement to emergency time off for dependants enables parents to take time off to take necessary action following the death of a child. The noble Lord, Lord Knight, raised the issue of the guidance on time off for dependants, which states that one or two days is sufficient. I reassure him that, as I mentioned in my response to the previous debate, we have recently amended the guidance to make it clear that the entitlement is to a reasonable amount of time off.

When a child dies, many processes need to be completed. These would be complicated and distressing at the best of times. I am sure that when a parent is trying to deal with shock and grief following the death of their child, this can be extremely challenging. It is right that parents are able to take time off to deal with these arrangements, and the law clearly provides for that. There is, however, no legal entitlement to statutory time off to grieve. Grief is an extremely personal issue and affects people in very different ways and at different times. For some people, returning to work immediately after a death is a distraction from difficulties at home. Others may need time off at a later date. Parents are best placed to understand their individual needs, and good employers will respond to requests made by their employees in the most appropriate and sensitive way. It would not be possible to legislate to accommodate the varied needs of individuals.

Research conducted by the Chartered Institute of Personnel and Development demonstrates that many companies have a policy in place for enabling employees to take time off for special and compassionate leave. In addition to leave available as a matter of policy, further time off may often be taken at the discretion of the line manager. Organisations that do not have a policy in place may find it challenging to meet the needs of bereaved employees at what we can all agree is a particularly difficult time. This may be compounded by a lack of understanding about the different religious beliefs and practices of their employees, which often influence grieving and funeral arrangements.

The Government are committed to giving employers the tools and support that they need in all aspects of their relationships with their employees. There is a clear need for guidance to support employers to develop company policies or approaches for time off for bereaved employees. The Government are currently exploring the best way to do this and will bring forward a concrete proposal shortly. I am pleased to announce that the timetable will be available on Report and we can share our approach with the House then.

I am grateful to the noble Lord, Lord Knight of Weymouth, for bringing this important matter to the attention of the Committee. I hope that he and indeed Lucy Herd are reassured by the commitment to bring forward guidance. In the mean time, I ask him to withdraw his amendment.

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[Lord Stevenson of Balmacara]

My Lords, in speaking to Amendment 267E and also Amendment 268A, I can be brief because the ground we have covered today has been leading up to a number of the points that I would have made if I had had more time and needed to break new ground. The essence of much of what we have heard from the Minister is that the spirit is willing but the flesh is weak. Often, as I anticipated in my opening remarks, he accepts the arguments for the direction in which we want to travel but he does not feel that the economic circumstances or alternatively the particularities of the individual point are absolutely in tune with the willingness of the Government to move on the point. I am not sure that metaphor will read well in Hansard but you will understand where I am trying to get to. This amendment therefore provides an opportunity for the Government to sign on to what we hope would be a narrowly focused and specific review, not general but tied to the various pinch points that we have encountered in our journey through these amendments today.

For example on the question of paternity pay, could we have a review that picked up the particularity of the point that was made in another place? The Minister’s counterpart in the other place said that the although the powers to allow the extension to paid paternity leave would be in the Bill, there would be a delay in making the extension until flexible parental leave had been fully embedded and we could assess the impact on shared parenting. Okay, let the review assess both whether parental leave has been fully embedded and the impact on shared parenting, tying it in to that arrangement. The question would follow naturally for the review as to whether the objective of encouraging more fathers to take leave had worked, and whether the amount of paid leave available to fathers in their own right was suitable in the light of the objective.

The Government have also said that they will consider making arrangements for working parents who do not meet the qualifying criteria to receive statutory payments, but this provision could not be introduced before 2018 to allow time for development and—a very important point—to ensure that it interacts appropriately with the new universal credit system. As we all know, the new universal credit system is not moving along at quite the pace that its originators would perhaps wish, so that may impact on the timing of the review, but I hope that it will not. Again, it would be appropriate to tie this review in to those things.

There are a number of particularities within the debate that we have had today which I offer to the Minister as being exemplars of the reasons to do a targeted review so that we can continue the sort of debates that we have been having here. We have a joint purpose of trying to make this legislation better, and it would be greatly informed if we could agree on the format of a review that would answer the questions that we should like answered.

Amendment 268A is slightly different. It is to try to inculcate a change in culture—we have talked about culture a lot in today’s discussions. This is about the move from a labour market scene that is largely dominated by fixed hours and fixed-time contracts to one that would be based on the starting assumption that all employment contracts, in time, could be flexible. If that were to be the case, we would have a situation where a number of the issues that we have raised again in discussing today’s amendments would fall away because the flexibility that would be innate in any job would allow for care concerns, problems around bereavement, issues around changes such as the onset of disability, or the tragedies that happen in families. All those things would be easier to deal with if the basic paradigm for employment were flexibility.

In the sense that this is something where we have a shared purpose that this would be a good thing—indeed, there are many examples I could give of employers that have set out to say that they are filling all future posts on a flexible basis—we would like to see flexible working become the norm, which would allow a number of good things to flow from that. The question is: how would we do that? Could we have a campaign? Could the Government put all posts within government services on a flexible basis? Could they set themselves as a standard bearer for this new approach? The amendment seeks to probe whether there is willingness within the operations of government, and more broadly within the workplace, to get on this bandwagon of moving towards flexible working, which seems to carry with it the seeds of much of what we have discussed today, which we would all find desirable. I beg to move.

[Viscount Younger of Leckie]

My Lords, the introduction of shared parental leave and the extension of the right to request flexible working are significant steps forward in creating the right environment for modern workplaces. This Government have committed to a policy of regular review of legislation to ensure that laws operate in the way in which they were intended and that they are still relevant. Shared parental leave will be no exception. This review will take place at the earliest opportunity when appropriate data are available. The Government will have to look at the take-up of the policy and the impact it has had on achieving one of the key policy aims of enabling shared parenting in the UK.

I make the commitment in this Committee that the Government will review shared parental leave as soon as appropriate data become available. The review will consider whether shared parental leave has gone far enough to encourage fathers to take a more active role in the care of their children in the early months following birth. As I mentioned earlier, the Government are taking powers in this Bill to allow for the extension of paternity pay, which would enable the Government to extend paternity leave and pay at a later date through secondary legislation.

Alongside reviewing the take-up of shared parental leave by fathers, the review will also look at whether the shared parental leave provisions are supporting all families in the most effective way. This may include parents of multiple births, provisions for self-employed parents and whether shared parental leave and pay can be made to work on a part-time basis.

Amendment 268A would require an annual review of the promotion of flexible working to employers and employees. The right to request flexible working was first introduced in 2003. That right has been very effective in encouraging employers to adopt flexible working practices within their businesses. It also reassures employees that their request for flexible working will be taken seriously.

The Government believe that flexible working should no longer be seen as a concession to families and those with caring responsibility. The benefits of flexible working are experienced by businesses, regardless of why an employee wishes to work flexibly, and I applaud the work that the previous Government did in promoting flexible working. Survey data show that, thanks to the existing right to request flexible working, 90% of employees have access to at least one flexible working arrangement. I hope that this will prompt a certain glow on the face of the noble Lord, Lord Stevenson, opposite.

Many businesses across a variety of sectors recognise the benefits that flexible working can bring. The Government have been working with a number of organisations to promote the benefits of flexible working, and will continue working with businesses to increase the awareness of flexible working arrangements.

Clause 106 requires the Secretary of State to review the effectiveness of changes to flexible working legislation made in the Bill and the extent to which the changes achieve the objectives of the policy. The Government will conduct this review within seven years of the implementation of the flexible working provisions of the Bill. The review will include reviewing the effectiveness of communicating with employers on the benefits of flexible working and make recommendations on whether additional communication of the right is needed.

I recognise that seven years is a longer period than the amendment would require. The legislation on flexible working aims to encourage a cultural change in the way that employers and employees work together. Much reference has been made to the question of culture this afternoon. Experience tells us that cultural change does not happen overnight and certainly not within one year. Culture change is best measured through survey data on how employee behaviour and attitudes are changing. For this reason it is right that any review of flexible working promotion gives the legislation the opportunity to change cultural behaviours before it is reviewed.

Nevertheless, I am grateful to the noble Lord, Lord Stevenson, and the noble Baroness, Lady Lister of Burtersett, for the opportunity to discuss this in Committee. I hope that the commitment for review I have made today will reassure them, and I ask the noble Lord to withdraw his amendment.

[Lord Stevenson of Balmacara]

I thank the Minister for his comments. The timescale seems incredibly long—seven years is too long—but I will read Hansard carefully and reflect on what he has said, and we will consider our position. In the mean time, I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara]

I find this very unsatisfactory. As the noble Baroness said, we are all losing our marbles, if not our words. Trying to get through the Bill at this late hour when there are still two very substantial amendments to go is not what was agreed through the usual channels and certainly was not the basis on which we came into this discussion. I continue, but I do so with the feeling that this is not in the spirit of the best use of our time, and your Lordships’ House will be the worse for having to debate late into the night issues that should have seen the fresh light of day—perhaps next Monday, when of course there will be time.

Clause 104 was in my mind when I started the debate earlier—it seems a long time ago now but was in fact earlier this afternoon—by saying that while the Opposition were broadly happy with the measures contained in Parts 6, 7 and 8 of the Bill, there were one or two bits of grit, and this is one of them. Amendments 267L and 267M and the clause stand part Motion are grouped together in one place so that we can have a debate about them. While they all bear on the same area, they obviously have different impacts. My preference would be for the clause to stand part because I believe that what the Government are trying to do here is antipathetic to the very spirit of British law, which has always recognised the need for a person with a legal case to have the chance to make that case in a court of first instance but, where there have been problems or difficulties with that, the person would then have the right of appeal against decisions taken in the first instance. However, the Bill as it is drafted removes the process by which an employer must respond to an employee’s flexible working request and replaces it with a requirement to respond in a reasonable manner and within a timeframe of three months. We had a debate earlier about the word “reasonable”, and on that occasion the Minister felt unable to accept that word because he felt it was not appropriate for the context in which we were discussing it, although it has come back several times since and he has been quite happy with it. We have a situation here where reasonableness, which in the earlier amendments was a burden on employers, is now okay for employers to use.

The current processes include the provision for an appeal by an employee, and this obviously provides a useful opportunity to discuss why things have not worked out in terms of the process, but the Bill removes that. The history to this is interesting. ACAS consulted on a draft code of practice for the extended right to request flexible working, and employer bodies such as the CBI, the FSB, recruiters, the TUC, EHRC, Opportunity Now and Working Families acted as advisers on the draft code. The group agreed, and the draft code recognised, that an appeal is important. The draft code said:

“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application”.

Anybody reading that would recognise its antecedents in criminal law and civil law where clearly those who have cases—as I have said—can make them in the first instance and then, if there are difficulties, can appeal against some of the decisions in order that they can be better refined and reconsidered. We believe it is important that the Bill and the code are consistent to provide clarity to employers and certainty to employees that appeals are to be allowed. The amendment would make it clear on the face of the Bill that appeals remain an important part of the process of considering flexible working requests.

In Committee in the Commons, the Government argued that the amendment would mean that an employee always had a right of appeal, and that this would be burdensome and bureaucratic in a very small organisation. If it was an absolute right of appeal, that might be the case, but appeals are usually constrained by matters of fact or law and one would expect that normal processes would be applied. We argue that a very small organisation would be able to deal swiftly with an appeal, but allowing an appeal is important for procedural fairness and may reduce the use of grievance procedures instead. Sometimes employers do not give a statutory business reason for refusing a request, and that could give rise to an appeal. In addition, once the employee understands the employer’s business reasons for refusing a request to work flexibly, they may be more able to negotiate a solution, so it is a win-win all round.

I would ask the Minister to think again about this issue. It is important to retain what we normally expect as the right approach towards consideration of these quasi disciplinary matters. I beg to move.

[Viscount Younger of Leckie]

My Lords, I welcome the debate on the new arrangements for considering a statutory request for flexible working. Even at this late hour, I recognise the importance that the noble Lord, Lord Stevenson, attaches to this amendment and I hope that my reply attaches the same degree of importance to it.

The current right to request flexible working has been a success, with 80% to 90% of requests being accepted. However, that does not mean that the right cannot be improved. Clause 104 will remove the statutory procedure for dealing with applications for flexible working and replace it with a duty on employers to consider applications in a reasonable manner. Many employers like the structure and confidence that the current procedure gives them when considering applications. Those employers will be able to continue to use this procedure even when it is not compulsory and can be confident that in doing so they will be likely to be acting in a reasonable manner. Many other employers, however, would like to consider applications in innovative and effective ways which are currently not allowed by the statutory procedure.

The Government have asked ACAS to develop a statutory code of practice to explain to employers what will be considered to be reasonable when considering a flexible working application. ACAS consulted in February this year on the contents of the statutory code of practice. The consultation version of the code of practice states:

“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application”.

The Government want to encourage employers to allow their employees to appeal a decision where it is appropriate. However, it may not always be appropriate. This extension to the right to request flexible working aims to encourage more employers to consider how flexible working could work within their business. It is not about creating or maintaining a process and procedure for employers to follow. I would like to reassure the noble Lord, Lord Stevenson, that while the Government do not believe that offering an appeal will be appropriate in all circumstances, we anticipate that the statutory code of practice and the supporting guidance issued by ACAS will encourage employers to offer their employee an appeal and to explain the benefits that offering an appeal can bring. Accordingly, I ask him to withdraw his amendment.

[Lord Stevenson of Balmacara]

Perhaps the noble Viscount could run through that last bit again. I am sorry, it is late and I am not working quite to my maximum efficiency. One of the points I made in my speech was the discontinuity between the code and what is being said in the legislation. If the code is going to say that the reasonable expectation is that employers shall provide an appeal, why is it not also appropriate to ensure that the statute says the same thing?

[Viscount Younger of Leckie]

We believe that the supporting guidance issued by ACAS will be enough to act as a nudge factor to encourage employers to offer an appeal. Together with the guidance that we will be providing, we believe that this will explain the benefits that offering an appeal can bring. I hope that this provides reassurance, short of bringing in legislation. The code is statutory, so it should be read alongside the legislation.

[Lord Stevenson of Balmacara]

All right, I think I am getting there. There will be a code which will have statutory backing. The code will make it very clear that an employee making such a request which has been turned down, perhaps for no sufficient reason, will have a statutorily underpinned right to appeal that because that is what the code, which is expected to be applied by employers, will say. The noble Viscount does not need to come back on that but perhaps he can write to me on the point.

I am missing my letters—I have not had a letter from the noble Viscount for at least a week. For those of your Lordships who may think that this is a rather recherché, arch exchange across the Committee Room, we have a running joke between us because of the number of times we have to appear opposite each other. The noble Viscount has gained an enviable reputation for being a prolific letter writer. Whenever there is a doubt, we get a letter, so on this occasion, may I have my letter and I will consider it? The noble Viscount is going to speak again, so I cannot.

--- Later in debate ---

[Viscount Younger of Leckie]

I can reassure the noble Lord that I would be delighted to furnish him with yet another letter and I will make sure that the reference is clearly written on it. The noble Lord mentioned the word “grit” earlier this afternoon and I hope that I can reassure him that the grit in the code is the statutory backing, and that the code is to be read alongside the legislation.

[Lord Stevenson of Balmacara]

Not all grit is bad grit. An oyster produces pearls. Perhaps on this occasion the pearl has been provided. On that basis, I am happy to withdraw the amendment.