Work and Families Bill

The Scottish National party and Plaid Cymru welcome the Bill. We recognise that the rights it gives are an important step forward for men and women in employment. I should like to comment on one or two aspects. I join in the general welcome for clause 12. The extension to carers of the right to ask for flexible working is extremely important. I have met many carers in my time as a Member of Parliament and I have been struck by how many had to give up work to look after sick children or relatives and ended up relying on state benefits. When, sadly, their elderly relative dies, they often find it very difficult to get back into work. If the clause helps people to stay in work, it is very welcome and long overdue. I also welcome the provisions on paternity leave, but I ask the Minister to consider creating greater flexibility. I know that it will be difficult, but several hon. Members have mentioned that point. I look back to the time when my children were born. I was self-employed and was able to change my work patterns to tie in with what was needed and to be with my wife when our children were just babies. It was an important and useful thing to be able to do. As I see it, the problem with the Minister’s proposal is that there no cross-over period—the mother will have the first six months and the father the second. We should find a way to work in a little flexibility to allow both parents to stay at home, especially when a child is first born. That could be very important, because it is often difficult for new and young parents, or in some cases not-so-young parents, to come to terms with the changes in their lives that a baby brings. It is also important that employers understand the rights in the Bill. Although we give employees rights, enforcing them is often a different matter. Good employers will always try to keep good employees and will bend over backwards to give them the consideration they need, but that is not true of all employers, and that is a problem. Other hon. Members will have received Citizens Advice’s excellent booklet on the Bill, ““Hard labour: Making maternity and paternity at rights at work a reality for all””. Some of the case studies it contains are disturbing, but Citizens Advice also makes the valid point that"““the Government’s strategy in relation to these and other statutory workplace rights must include steps to ensure more universal compliance by small employers, including more pro-active enforcement against rogue employers.””" Although it is possible to take employers to an industrial tribunal, it is often not easy to do so. It is time consuming and many employees find the process of taking an employer to an industrial tribunal extremely difficult and daunting. I know from my experience as a solicitor representing people at industrial tribunals that it can also take a very long time. One group that does not appear to be adequately covered at present is those who are, as the Library note puts it, somewhat coldly,"““commissioning parents in surrogacy arrangements.””" I was encouraged by the Secretary of State saying in response to my earlier intervention that he would look again at that matter. My interest was prompted by a constituency case. My constituent could not obtain a decision from her employer about what, if any, rights she had to take time off to spend with her new baby. The case did not appear to be covered by either maternity or adoption leave legislation, and the couple were left in limbo. When they approached me, I thought that the matter should be treated in the same way as adoption, with which it had many similarities. However, that is not the case under the existing legislation, and there was no automatic right to leave or pay. I intervened with the employer—a major public sector employer—which, to its credit, accepted that the situation should treated in the same way as adoption and agreed to do so. However—and this is the point I wish to make—that was at its discretion, and my constituent did not have any automatic rights, which is unfair. I took the matter up with the Minister, who confirmed the legal position in a letter:"““There is no specific statutory right for parents who have a child through surrogacy to take time off following the birth of their child, and currently no plans to change this.””" To be fair, he explained that maternity rights were originally a health and safety issue, but things have moved on. We are now talking about a work-life balance for families, and surrogacy is an important issue. The number of people involved is low, but the matter should be given due consideration. The Bill does not change the position, as the Minister accepted. When the Bill was published I asked the Library to prepare a briefing note, which confirmed that nothing has changed. That note now appears in the Library research paper, so perhaps I have secured my place in history by achieving a mention of the subject in such a paper. I urge the Minister to consider the particular circumstances of surrogacy as parents in that category appear to suffer discrimination. When I first became involved in the matter I assumed, perhaps naively, that some form of adoption would be required, but there are several different methods of dealing with surrogacy. The Library briefing cites the submission to the Government’s original consultation by the National Association of Schoolmasters Union of Women Teachers, which puts the matter very well:"““In these circumstances the commissioning mother usually has the baby soon after the birth but cannot formally adopt until six weeks after the birth. Clearly she will need to take leave from the date she receives the baby but currently she has no statutory rights to any pay or leave, even after the formal adoption.””" If that is indeed the case, the mother is in a disadvantaged position. Had there been no surrogacy agreement but only an adoption, she would have been entitled to rights under adoption regulations. However, because of the surrogacy she does not have any rights whatsoever. Various legislative proposals apply in surrogacy arrangements, and different means by which parental rights are given to the intended parents and the parental rights of the surrogate mother extinguished. As well as formal adoption, parental orders can be imposed, allowing a married couple who commission the surrogate birth to apply for an order so that they are treated in law as the parents of the child. That is not necessarily a quick process because, as in all cases that involve children, the court would have to be convinced that the welfare of the child was secure. Similarly, it may be possible for a commissioning father to apply to the courts for a parental responsibility order by virtue of the fact that he is the genetic father of the child. I am not sure of the position in English law, but in Scotland such an order would have to be accompanied by a residency order to specify that the child is to reside with the father and his wife—the child’s putative mother. If that order was not granted, the original order would not do much good. In any event, the parental responsibility order would not give any automatic rights to the wife of the applicant. Even though she would almost certainly be the main carer, she would not necessarily obtain any benefit though time off or pay. Those procedures may not work as intended. It is particularly strange that that point has not been covered by the legislation as the legal frameworks for surrogacy and adoption are closely related. It is iniquitous that parents in a surrogacy arrangement should have no automatic legal rights, but must rely on their contract of employment. In my constituent’s case that worked out—it might not in other cases—so I urge the Minister to reconsider the matter and ensure that all families are treated equally. After all, in his letter to hon. Members of 19 October, the Secretary of State specifically stated that the Bill would"““deliver our commitment to give parents more choice about how they balance their work and family life””." That should be as true of those seeking a family through surrogacy as it is of those seeking a family through any other means. For the sake of fairness and completeness, I urge the Minister to re-examine the matter and introduce proposals to include such a measure in the Bill.