Reform of Shared Parental Leave: pass the Senokot

While a rampant stomach bug is reported to have caused most competitors in last month’s six-day, 250km Marathon Des Sables in the Sahara a nasty bout of the runs, officials at Kwasi Kwarteng’s Department for Business, Energy & Industrial Strategy (BEIS) face the opposite problem: their marathon evaluation of the chronically failing Shared Parental Leave scheme is stuck fast in the bowels of the Department.

First announced in March 2017 and underway by April 2018, the BEIS evaluation has now been in progress for 43 months, or some 1,300 days. I’ve seen dead snails move more quickly.

Way back in November 2017, the then business minister told MPs on the Women & Equalities Committee that the evaluation would be carried out “next year” – the clear implication being that it would be complete by the end of 2018. And the minister indicated it was already clear that the policy was failing. Asked about take-up by eligible fathers, she stated:

“Take‑up is disappointing. It is under 10%. I would regard 25% as successful. I would regard anything over 20% as very encouraging. We are not going to see those figures, so [our evaluation] is going to demonstrate that we have a lot more to do.”

Four years on, my latest analysis of the relevant HMRC and DWP data indicates that just 1.5% of the 2.6 million new mothers who started on statutory paid maternity leave since April 2015 used the Shared Parental Leave scheme to transfer some of that paid leave to the child’s father. In 2019/20, the fifth year of the scheme, just 8,370 (2%) of the 414,000 such mothers did so. That is simply nowhere near good enough.

No wonder no one at BEIS is reaching for the Senokot. Because, if they ever release their evaluation report, they will have to tell us what – if anything – they plan to do to remedy this colossal policy failure. And such policy remedies don’t come cheap.

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Employment Tribunal stats: When will I see you again?

So, after a gap of eight months – due to the going live, in March, of a shiny new (and no doubt expensive) Case Management System that it seems cannot reliably count the number of cases it is managing – HM Courts & Tribunals Service has finally (and quietly) published some data on Employment Tribunal receipts.

On 18 October, justice minister James Cartlidge told shadow justice minister Alex Cunningham and other MPs that “the most recent employment tribunal data covers the period up to March 2021. This is because [the employment tribunal system] has moved to a new case management system, and HMCTS is currently working to incorporate the new IT system alongside longer-established data sources to provide a more complete and consistent data set for this jurisdiction.”

However, late last week we learnt (from the minutes of the most recent ET National User Group meeting) that, just four days previously, on 14 October, HMCTS had quietly published a new set of management information on “workload and timeliness for HMCTS criminal, civil and family courts, and tribunals”. And this set of management information includes data on Employment Tribunal receipts (but not disposals) up to August 2021. Maybe someone should have told minister Cartlidge.

Whatever, is this a precious moment? Or do we employment policy nerds have to suffer and cry the whole night through a bit longer?

Well, the following chart adds the new data (for the months March to August 2021) to the previously published figures for the period January 2017 to February 2021. And maybe the number of new ET cases really did plummet by 42% between November 2020 and May 2021, to a level not seen since before the abolition of ET fees in July 2017.

Or maybe some new cases got ‘lost’ while the new Case Management System was being taught how to count the number of cases that it is managing. You decide.

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The incredible shrinking SPL take-up figures

Earlier this month, I wrote here about the law firm EMW and their narrative – eagerly sucked up by a few so-called journalists – about the supposedly low take-up of statutory paternity leave. I suggested that EMW’s narrative is little more than a pile of pants. And today, in response to my Freedom of Information request, HM Revenue & Customs have confirmed that EMW’s narrative is indeed, as the never knowingly understated Independent might report it, “broken”.

In short, EMW have for years based their narrative on HMRC figures for (a) the number of claimants (new fathers, mostly) paid statutory paternity pay, and (b) the number of claimants (new mothers) paid statutory maternity pay. Using the latter as a proxy for the number of fathers who are eligible for statutory paid paternity leave is highly questionable, but in any case it turns out those HMRC figures are inflated by a lot of double-counting. As HMRC confirm:

The number of claimants is the total number of individuals in receipt during that year, irrespective of when the payment first started. Where a given spell of [statutory maternity pay, statutory paternity pay or statutory shared parental pay] extends across two years, the claimant will be included in both years’ figures.

In the case of statutory maternity pay, this inflationary effect is substantial: up to 75%, if we assume (as seems to be the case) that, on average, women take nine months of SMP (i.e. their full entitlement). But with statutory paternity pay, the inflationary effect is negligible (because claimants can only take one or two weeks of paternity leave).

Maybe this doesn’t matter very much – the few press reports that EMW secured last month with their annual press release about the same set of HMRC data haven’t sparked a national debate about reform of paternity leave. Interestingly, however, EMW are also responsible for another take-up figure that frequently does feature in policy debate.

Only today, I received a document that states “the current UK [shared] parental leave scheme has a very poor uptake, with only around 1% of fathers using the scheme”. And, like many before them, the author of this document was almost certainly thinking of this news release from the TUC in April 2019:

The TUC is today calling for an overhaul of shared parental leave.

Last year only 9,200 new parents took shared parental leave – just 1% of those eligible to do so.

The TUC believes take-up is low because the scheme is so low-paid (£145.18 per week) making it unaffordable for most fathers.

A ‘note to Editors’ at the bottom of the news release states: “the University of Birmingham found that only 9,200 new parents (just over 1% of those entitled to take it) took SPL in 2017/2018”. However, the University of Birmingham’s short September 2018 report makes clear (see Reference 3) that it simply lifted the 1% figure from a (since deleted or moved) press release from … the law firm EMW.

Furthermore, it’s clear (including from a later EMW press release that has not been deleted) that EMW got to that 1% figure (1.4%, to be precise) by dividing HMRC’s figure for the number of claimants paid statutory shared parental pay in 2017/18 (9,200) by HMRC’s figure for the number of women paid statutory maternity pay that year (662,000) – that is, in the same way they calculated the take-up rate for paternity leave. We now know that figure for the number of women paid SMP is inflated (by up to 75%) by HMRC’s double-counting, but in any case EMW are wrong to assume that the number of women who went onto statutory maternity pay is the same as the number of fathers who are eligible to take shared parental leave. In 2013, in its impact assessment of the new policy (see Table 7 on p29), the Department for Business, Energy & Industrial Strategy assumed the maximum number of eligible fathers to be just 285,000 (a figure BEIS has never felt the need to revise).

Whatever, now that HMRC have confirmed how their raw annual figures are inflated by double-counting, and using that BEIS figure of 285,000 eligible fathers, we can adjust those HMRC figures, to remove the likely double-counting in respect of shared parental pay, and so arrive at new estimates for the rate of take-up of shared parental leave among eligible fathers since 2015/16. (Note that we also need to adjust the HMRC figures to allow for the fact that, as confirmed in Footnote 5 of this Answer to a Parliamentary Question by Ed Miliband in February 2021, at least 20% of HMRC’s claimants for statutory shared parental pay are mothers who have converted their maternity leave to shared parental leave, as they must do before the father can access statutory shared parental leave and pay.)

I have previously suggested that SPL take-up among eligible fathers was as ‘high’ as 3.6% in 2019/20. But I didn’t know then that HMRC’s annual figures for the number of shared parental pay claimants include the double-counting that HMRC have now confirmed. I should have known better, frankly, but for what it’s worth here are my new estimates of SPL take-up:

[NB: If you are a nerd and would like to see how I arrived at these figures, just ask and I’ll send you a spreadsheet]

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Is the paternity leave system “broken”?

How many women go on statutory maternity pay in the UK each year?

Go on, have a guess. Or maybe you know the number?

Perhaps you do. Or maybe you only think you do.

According to news reports last month in the Independent newspaper – headline: “Parental leave system is broken: number of fathers taking paternity leave plunges to 10-year low” – and the supposedly specialist journals Personnel Today and People Management, it’s about 650,000:

Only 27% of eligible fathers took time off last year; 176,000 men took paternity leave and claimed statutory paternity pay in the 12 months to 31 March 2021 compared with 652,000 women who took maternity leave over the same period.

The data was released by HM Revenue & Customs following a Freedom of Information request by law firm EMW.

All three news reports were based on a press release by law firm EMW. Indeed, in recent years, EMW have been admirably effective at getting press coverage out of pretty much the same story, based on the same (updated) set of HMRC data: here they are in the Independent and Management Today in July 2019, and the Telegraph and HR News in August 2020. One year it’s ‘Only one third of fathers are taking paternity leave!’, and the next it’s ‘Two thirds of fathers are not taking paternity leave!’ Well done, law firm EMW.

We can only guess how EMW would have framed this unchanging story last month, had the Covid19 pandemic not come along in 2020. This provided them with the somewhat over-dramatic “paternity leave take-up has hit a 10-year low, with only approximately a quarter of eligible fathers (27%) taking paternity leave after the birth of their child” hook, to the excitement of sub-editors at the Independent and the usual suspects such as Pregnant Then Screwed. But then it is hardly surprising, given how much of the workforce was on furlough for much of 2020/21, that some 30,000 new fathers decided to continue at home on furlough, on 80-100% of their normal wages, rather than take one or two weeks of statutory paternity leave on just £150 per week.

Whatever, here’s that HMRC data in full, showing that – *checks notes* – the paternity leave system is broken:

However, there are several problems with this narrative, and the HMRC data on which it is based.

The first problem is the assumption by EMW that the number of fathers (and other second parents) who are eligible to claim statutory paternity pay (i.e. the denominator for their paternity leave take-up rate) is the same as the number of women who started statutory paid maternity leave. There are a number of reasons why this is not the case, but to be fair it’s probably the best proxy available, so we can probably let this one pass.

The second problem is that, if we do assume that the number of fathers (and other second parents) who are eligible to claim statutory paternity pay is the same as the number of women who started statutory paid maternity leave, then we probably need to include in that latter number at least some of the 60,000 women who go on Maternity Allowance, rather than SMP, each year. The legal eagles at EMW seem to have forgotten about Maternity Allowance, but adding the 40,000 employed new mothers who get Maternity Allowance to their base figure of (about) 650,000 would make the paternity leave system look even more “broken”: it would, for example, indicate a paternity leave take-up rate of just 30% in 2019/20, not 32% as suggested by EMW.

However, the third – and biggest – problem with EMW’s narrative is that the number of women who start statutory maternity pay each year is not (about) 650,000, or anywhere near that number.

For a start, according to ONS data, in 2018 there were only 649,626 maternities in England and Wales, plus about 60,000 in Scotland. And a significant proportion of those 710,000 mothers (plus those in Northern Ireland) will not have been in employment (in March 2019, the Department for Business, Energy & Industrial Strategy estimated the employment rate of ‘women of child bearing age’ to be 73%). So it’s just not credible that pretty much all of the 710,000 went onto either SMP or Maternity Allowance.

More to the point, every year the DWP publishes data for benefits expenditure and caseload, including for SMP and Maternity Allowance. This data is published under the terms of a Memorandum of Understanding with the Office for Budget Responsibility (OBR), and reflects the Government’s financial delivery plans. So, if it’s wrong, the Budget is a pile of pants. And, according to this data, between 2012/13 and 2020/21, the average number of women going on to SMP was just 268,000 (within a range of 262,000 to 275,000).

The DWP also publishes quarterly data for Maternity Allowance starts, including a breakdown by employment status (’employed’ or ‘self-employed’), so we can add the some 40,000 employed women who started on Maternity Allowance each year to the OBR-approved number of women who started on SMP. (Note that, in 2020/21, there was also a pandemic-related dip in the number of employed women who started on Maternity Allowance, from 40,000 to 30,000. Believe it or not, neither law firm EMW nor Pregnant Then Screwed have yet made a fuss about this.)

This combined data gives us a significantly different denominator (for calculating the take-up rate of paternity leave) to the HMRC data relied upon by law firm EMW and their friendly (but somewhat uninformed) journalists, and so a rather different picture of the take-up of statutory paternity leave:

Now you might still argue that even this data shows the paternity leave system to be ‘broken’. But I would suggest that a take-up rate of about 70% is not that bad, really, given the stupidly low rate at which such leave is paid and the other barriers to take-up, not to mention the fact that a good chunk of the ‘missing’ 30% will be new fathers who are self-employed, so are not even entitled to statutory paid paternity leave. Indeed, this is one of the reasons why, as mentioned above, law firm EMW are wrong to assume that the number of new fathers who are eligible to take statutory paternity leave is the same as the number of new mothers who start statutory paid maternity leave.

So, which set of data on SMP is correct, and why the discrepancy between the two? Well, at the time of writing, there’s no definitive answer to that, but this recent Answer by Treasury minister Jesse Norman to a Parliamentary Question by Kirsten Oswald MP strongly suggests (a) that the Government favours the OBR-certified data in the DWP’s annual Benefit Expenditure & Caseload tables; and (b) that one reason for the discrepancy is that the HMRC data on SMP provided to law firm EMW (and others) via Freedom of Information requests includes a lot of double counting, because it “includes claimants in each year in which they received statutory payments”.

In other words, a woman who took nine months of statutory maternity leave on SMP from October 2019 to June 2020, say, will have been counted twice by HMRC, first in its figure for 2019/20, and then in its figure for 2020/21. With women taking nine months of statutory paid maternity leave, on average, this means the HMRC data overstates the true figure by up to 75%. (There may well be such double counting in HMRC’s figures for statutory paternity pay, too, but as claimants take only one or two weeks of such pay, the inflationary effect will be negligible.)

Allowing for this double counting would reduce the HMRC figure of some 650,000 SMP starts a year to as little as 370,000 (which would increase EMW’s paternity leave take-up rate for 2019/20, from 32% to 56%). But that still leaves a significant discrepancy between the HMRC data and that published by the DWP as part of the OBR-certified Benefit Expenditure & Caseload tables.

I’m awaiting a response from HMRC to a Freedom of Information request seeking an explanation of the discrepancy, so maybe everything will yet become clear. Or, more likely, it won’t. But watch this space.

(For the record, none of the above is to dispute that our parental leave system is broken. It is very broken, and I have written extensively about just how broken it is. But paternity leave is the least important part of that system and, while it should be better paid and be a Day One right for all workers, including the self-employed, there are much bigger fish to fry in this policy area.)

Update (27 September): In its response to my FoI request, HMRC has confirmed that the figures provided to the law firm EMW (and others) include lot of double-counting:

The number of claimants is the total number of individuals in receipt during that year, irrespective of when the payment first started. Where a given spell of [statutory shared parental leave pay, statutory maternity pay or statutory paternity pay] extends across two years, the claimant will be included in both years’ figures.

So, EMW’s narrative about the take-up rate of statutory paternity leave is indeed ‘broken’.

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Some thoughts on Brexit Unfolded, by Chris Grey

If you’re looking for a forensic yet highly readable account of the batshit-crazy craziness of Brexit and its various leading advocates since they unexpectedly stormed to victory over common sense in June 2016, then Chris Grey’s Brexit Unfolded is the book for you.

The book’s central theme is encapsulated in its subtitle: How no one got what they wanted (and why they were never going to). In short, 17.4 million people were induced to vote for a really dumb and incoherent idea without anyone having a clue how to put the idea and its conflicting, ‘cakeist’ demands into practice. Then, when the intellectually-challenged Tory politicians presented with the task found their deluded ‘cakeism’ coming up against – and being frustrated by – reality, they simply railed, plotted and fought against each other, thus steering the entire process down a vicious spiral of idiocy, puerility and irresponsibility.

In December 2019, this ever more absurd process finally climaxed in the farce of Tory MPs breathlessly voting for a ‘renegotiated’ Withdrawal Agreement little different to the one they had hated so much they had brought down their own Prime Minister, the hapless Theresa May. As a result, the UK left the EU on 31 January 2020. Then, after eleven months of post-orgasm torture, both Tory and Labour MPs spaffed the country’s future up the wall by voting for a ‘future relationship’ deal they had barely had time to read, let alone understand. And now, after just a few months in the glorious sunlit uplands of Brexit, the Brexiters wail that it’s a terrible, ‘punishment’ deal that must be re-negotiated.

With Chris having documented every slap and tickle of these four years of political sadomasochism in real time, via his (rightly) acclaimed Brexit Blog, Brexit Unfolded does not miss a trick in exposing, and eviscerating, the self-defeating lunacy of Brexit and the Brexiters. And the ‘no one’ in the book’s subtitle clearly encompasses Remain voters like me (and Chris himself), who obviously didn’t get what we wanted. But what is oddly missing from the book is any analysis of why hard-core Remainer MPs failed to get what they wanted, namely a People’s Vote and/or the cancellation of Brexit.

Maybe this doesn’t matter very much, given the outcome. But you could say the same about the antics of government ministers and the Tory nut-jobs in the European Research Group (ERG), many of whom are already little more than footnotes in Brexit Unfolded. And, if it is right to note that the Brexiters could and should have done things differently, as Chris does throughout the book, it is surely fair to do the same in respect of Remainer MPs, many of whom seemed to understand the Brexit process no better than the Brexiters.

A recurrent theme throughout Brexit Unfolded is the “persistent, repeated failure [on the part of Brexiters] to understand, or to accept, the two-stage nature of the Brexit process”. This was the ‘row of the summer’ that the People’s Idiot, David Davis, spectacularly lost to the EU in 2017, with the result that the UK could not negotiate the terms of its ‘future relationship’ with the EU until after leaving the EU (at the end of the two-year Article 50 period that Theresa May had stupidly kicked off in March 2017). And I know – because I was there, slogging my guts out in a dingy office in Westminster – that many Remainer MPs did not fully understand this two-stage nature of the process either.

More to the point, in April 2018, the MPs and professional activists behind the launch of the People’s Vote campaign fatally failed to recognise the existential implications of the two-stage process for any such second or confirmatory referendum, with the rather crucial result that their campaign was essentially dead from birth. For, as Chris notes, pretty much the only credible argument for having a People’s Vote later in 2018 or in 2019 was that, in June 2016, the ‘people’ had voted for Brexit without knowing what Brexit would actually look like. Yet, thanks to the EU’s insistence on the two-stage process, the same would be true of any People’s Vote held before the end of the Article 50 period.

I was in the room when uber-pollster Peter Kellner emphasised this point to a meeting of pro-PV MPs in early February 2019, just weeks before Chuka Umunna and Anna Soubry threw in the towel. And, of course, holding a People’s Vote after the expiry of the Article 50 period would be pointless, from a Remainer point of view, as the option of cancelling Brexit and remaining in the EU would no longer be available.

Accordingly, the People’s Vote would have been little more than a re-run of the 2016 referendum, with voters having much the same choice between voting to remain in the EU, or voting to leave for an undefined and therefore unknown future. Throw in the near-insurmountable practical challenges of holding a five-month referendum campaign before the expiry of the Article 50 period, and the never-answered question of which credible ‘leave’ option(s) would be on the ballot paper, and the People’s Vote – the principal vehicle for parliamentary opposition to Brexit from April 2018 onwards – was simply never going to fly. Which means its dogged pursuit was not only intellectually dishonest, but a waste of time and effort that could have been better spent pursuing an alternative strategy.

All of which makes it somewhat ironic, for this reader of Brexit Unfolded, that the only MP to have provided an endorsement for the book’s cover is Caroline Lucas of the Green Party. For it was in Caroline’s dingy outer office that I toiled away on Brexit from late 2016 to April 2019 (when I could stand it no more).

Because, when Caroline says (on its cover) that Brexit Unfolded is “a searing account of the deep failure of political leadership in our country at a moment when it was so desperately needed”, I am reminded that it was Caroline who, in September 2015, enthusiastically voted with David Cameron and the Tories to hold a referendum on a really dumb and incoherent idea, without insisting on sensible, democratic safeguards such as a super-majority and/or votes for 16- and 17-year olds. So, not much political leadership from Caroline when David Cameron was making that “colossal political blunder”, as Chris Grey rightly calls it.

It was also Caroline who (against my advice) unnecessarily voted with Theresa May and the Tories to call the June 2017 general election, a call that Chris Grey rightly lambasts as “the most extraordinary and most ill-judged decision in modern British political history (unless that was Cameron’s calling of the referendum)”, and one which “backfired horribly, leaving [May] leading a minority government dependent upon the DUP”.

It was Caroline who helped launch and then (against my advice) stuck with the near monomaniacal People’s Vote campaign, masterminded behind the scenes by Peter Mandelson and Alistair Campbell, who seemed to have spoken to Tony Blair between almost every one of the Monday meetings that I regularly attended on Caroline’s behalf. And it was Caroline who went along with the campaign’s brutal ‘scorched earth’ policy of shooting-down all the other supposed alternatives to ‘hard’ or ‘no-deal’ Brexit, such as Stephen Kinnock’s Norway Plus. Yet, just a few weeks prior to the campaign’s launch, the EU had confirmed its insistence on the two-stage Brexit process that made a People’s Vote futile (at least in practice, if not in theory).

Then, in December 2018 and early 2019, it was Caroline who (against my advice) agitated and then repeatedly voted against Theresa May’s Withdrawal Agreement. Yes, that Withdrawal Agreement was deeply flawed (because Brexit is a really dumb and incoherent idea). But that repeated rejection by MPs, instead of inducing a humiliated Theresa May to agree to a People’s Vote on the Agreement at the eleventh hour, as Mandelson, Campbell and Lucas had recklessly gambled it would, simply precipitated the utter chaos of 2019, the inevitable (and predicted) replacement of Theresa May with the even more disastrous Boris Johnson, the tragicomic farce of the June 2019 Euro election, a second general election during the precious Article 50 period, and the near destruction of the Labour Party – the only credible alternative government to the Tories. Well done, Caroline and the Green Party.

As if that wasn’t enough, during that chaotic summer of 2019, Caroline’s idea of demonstrating political leadership at a moment when it is desperately needed was first to say that she would ignore a win by Leave in any People’s Vote, and then to call for an all-female Cabinet of National Unity to block Brexit. As the Guardian‘s ace satirist, Marina Hyde, noted at the time, “the Greens want the headlines for a day and they’ve got a plan just batshit enough to secure them.”

So yes, Chris Grey is absolutely right to highlight, as he does in Brexit Unfolded, the “spectacular failures of political leadership and political institutions” during the Brexit process. But let’s not kid ourselves, or try to pre-write history, by pretending that those failures were confined to the Brexiters. Those behind the People’s Vote did not get what they wanted (and they were never going to).

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So, The Moderate Voices have a new album out. Is it any good?

Woman: I lost my job because I said sex matters!

Women: WTAF? This is a terrible set-back for women’s rights.

The Moderate Voices: Trans women are women, non-binary identities are valid, and Jolyon Maugham is super wonderful.

Woman: But … I lost my job! For saying sex matters!

Women: A woman lost her job! Just for saying sex matters!

The Moderate Voices: There is no debate. Byeeeee.

Women: This is really bad for women’s rights. We need to fight this.

The Moderate Voices: Sorry, we have no time for shouty, difficult women. And THERE IS NO DEBATE! Can we sell you a spider broach? Or a ‘Nasty Woman’ T-shirt?

Women: But … what about ‘Courage Calls to Courage Everywhere’?

The Moderate Voices: How dare you attack us! Pile on blah blah. THERE IS NO DEBATE! Just be nice to the women with a beard and a penis. They are all lovely.

Some time later …

Woman: I won my appeal! The Employment Appeal Tribunal has ruled that the belief that sex matters is protected by the Equality Act.

Women: This is a fantastic victory for women’s rights!

Trans allies: This is a terrible ruling by a transphobic, neo-colonialist legal system that will do great damage to the basic human right of women with a beard and a penis to shout down cis women. It is literal violence, and will lead directly to the death of hundreds of thousands of the most vulnerable people in the world.

Jolyon ‘foxy’ Maugham QC: Please donate to my crowdfunder to try and get all these nasty TERFs to shut the fuck up. What? That gets you a block.

Sir Keir Starmer: Trans women are women, and non-binary identities are valid. Self-ID blah blah. Is that enough? Can I go and play football now?

The Moderate Voices: *silence*

Women: Why have the Moderate Voices not said anything about this landmark ruling?

The Moderate Voices: How dare shouty women attack us for not saying anything about a landmark legal ruling on women’s rights! Mental health blah blah. Trans women are so cute, and we just love their world class ability to accessorise! Oh, we are so witty. Unlike those shouty, difficult cis women. The Moderate Voices need to be heard in this debate.

Women: WTAF???

The Moderate Voices: See! We told you! Why can’t the cis witches stop attacking us, and just be nice to the cute trans women with a beard and a penis?

Other Moderate Voices: You are SO brave for speaking out.

The Moderate Voices: Thank you! I love you! You are so brilliant.

Other Moderate Voices: I love you too! You are brave AND brilliant.

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Employment Tribunal claims: Will the Lewis-Thomson Theorem pass the test of time?

With the release this morning of the latest set of quarterly Employment Tribunal (ET) statistics, covering Q4 of 2020/21 (Jan – Mar 2021), and with last week having seen the latest farcical performance of the ‘spot a quirk in the ET stats and get our name in the papers’ PR party trick – this time by Stuart Lewis of Rest Less and Patrick Thomson of the Centre for Ageing Better – I thought it might be interesting to check on how the oh-so-confident predictions of previous performers of the trick have actually turned out.

The first of our past performers is DLA Piper’s legal eagle – but statistical sparrow – Jane Hannon, who in May 2020 secured a nice little piece in the Guardian, under the headline “29,000 claims a year despite 50 years since Equal Pay Act”. This ‘revealed’ that “a consistently high number of workers are alleging that their employers are illegally paying them less than colleagues in similar roles”, and that “the number of claims brought to employment tribunals [is] showing no sign of decreasing”.

Unfortunately for Ms Hannon – who really should have gone to Specsavers – a slightly more than cursory analysis of the ET statistics showed the somewhat inconsistent number of claims decreasing in no fewer than ten of the previous 12 years, including in each of the two most recent years, 2018/19 and 2019/20.

And today, the latest set of statistics confirms that this downwards trend continued in 2020/21, with the number of equal pay claims decreasing by another 65%, to its lowest level in at least the last 16 years. But hey, who could possibly have seen the signs?

Next up in our rogues’ gallery of past performers is Hannah Mahon, a partner at GQ Littler, which modestly describes itself as “the world’s leading employment law firm”. In July 2019, Ms Mahon secured near-identical articles in the Financial Times, the Daily Fail, the Metro and the Times about a 69% “spike” in the number of sex discrimination claims in 2018/19. Ms Mahon attributed this to “a big increase in the public airing of sexual harassment claims” in the era of #MeToo: “It’s a much more public thing now. People are starting to understand their rights and feeling less shy about speaking out.”

Unfortunately for Ms Mahon, a slightly more than cursory analysis of the ET statistics showed that pretty much all of the 69% spike had occurred in Scotland, and only in the two months June and August 2018. In England & Wales, the number of sex discrimination claims had actually fallen, by 8%. Ms Mahon would probably get on well with Stuart Lewis of Rest Less and Patrick Thomson of the Centre for Ageing Better, who failed to spot (or deliberately overlooked) the rather obvious fact that most of their 176% explosion in age discrimination claims in Q3 of 2020/21 occurred only in Scotland, only in October 2020, and had nothing whatsoever to do with firms ditching older staff during the pandemic.

And today, the latest set of statistics suggests that the #MeToo movement has yet to impact on women’s understanding of their rights, or their shyness about speaking out about sexual harassment at work, as the number of sex discrimination claims has fallen by 45% since 2018/19, and is now at a diminutive level rarely seen over the last 14 years.

Next up is Sophie Vanhegan, another partner at GQ Littler, who in June 2019 secured a lengthy piece in People Management – the official journal of the CIPD – about a 56% increase in pregnancy/maternity discrimination claims in 2017/18. Vanhegan attributed this ‘spike’ to the #MeToo movement making women more aware of unacceptable behaviour, especially related to pregnancy: “Things that may have simply just been accepted in the past are now being seen as unacceptable and people are feeling more confident in being able to challenge them” by bringing an ET claim.

Vanhegan was supported by Claire McCartney, a senior policy adviser at the CIPD, who said that “while the removal of tribunal fees may have accounted for some of the increase, there has also been a greater awareness of maternity and paternity rights, and an increased willingness to make claims”. And campaign group Pregnant Then Screwed were quick to jump on the bandwagon, tweeting that “the number of women experiencing discrimination has definitely risen but this [56% increase] is more about women feeling empowered to do something about it – all our hard work feels like it’s paying off.”

Leaving aside the rather obvious point that the #MeToo movement didn’t even start, on the other side of the Atlantic, until half-way through 2017/18, a slightly more than cursory analysis of the ET statistics showed that the 56% increase in pregnancy/maternity discrimination claims was entirely in line with the 60% increase in the number of new ET cases due to the abolition of ET fees in July 2017, just three months into 2017/18.

And today, the latest set of statistics confirms that, if the #MeToo movement has had any lasting impact on the willingness of pregnant women and new mothers in the UK to bring a pregnancy/maternity discrimination claim, it has been in the wrong direction. For, having bounced back to just short of its pre-ET fees level in 2018/19, the number of pregnancy/maternity discrimination claims has since fallen by 21%. Clearly, Pregnant Then Screwed need to be working a little harder.

Who knows, maybe last week’s performance of the PR party trick by Rest Less and the Centre for Ageing Better will prove to be the exception to the rule, and they will secure a footnote in employment policy history as the discoverers of a sustained, upwards trend in the number of age discrimination claims linked to Covid19 and the associated lockdowns. Maybe employment lawyers and policy wonks will sit around talking reverentially about the Lewis-Thomson Theorem, and nodding sagely.

Time will tell. But today’s set of employment statistics doesn’t bode well for the Lewis-Thomson Theorem. After removing another obvious multiple claimant case (in Scotland, in February 2021, with some 1,400 claimants), we find that age discrimination claims have fallen by 27% over the two most recent quarters. Have employers stopped ditching older staff because of the pandemic already? I have no idea. Ask Stuart Lewis at Rest Less.

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Garbage press reports about ET claims soar since Covid lockdown

AGE DISCRIMINATION CLAIMS IN SCOTLAND SOAR BY 13,000%, THEN DROP LIKE A BRICK

By Amelia Hill, Senior Reporter at the Guardian, Charles Hymas, Home Affairs Editor of the Telegraph, Giles Sheldrick, Chief Reporter at the Daily Express, Steve Doughty at the Daily Fail, Adam McCulloch at Personnel Today, Greg Wright at the Yorkshire Post, and Calum Trenaman at People Management (the voice of the CIPD).

The number of age discrimination claims taken to Employment Tribunals has increased dramatically in Scotland since Covid lockdown, according to analysis of Ministry of Injustice data.

Claims increased by 1,049% over the year, with a stonking 13,043% increase in October 2020, compared with the same month the year before.

News of the steep increase comes against a backdrop of it being a Bank Holiday weekend, and a resultant shortage of proper journalists on newsdesks throughout Fleet Street.

“We know that this increase has absolutely nothing to do with Covid, and tells us nothing about how employers have responded to the lockdowns”, said Stuart Lewis, the founder of Rest Less, a jobs site in desperate need of a higher public profile. “But these journalists don’t, so we can get our name in their papers for nothing!”

Patrick Thomson, a senior programme manager at the Centre for Ageing Better, said: “I haven’t got a clue what’s going on, to be honest, but they said if I provide a meaningless quote we will get our name in the papers too. This is the #MeToo moment for wrinklies. Or something.”

A Ministry of Injustice spokesperson said: “Hahahaha! Hahahaha!”

Several dozen employment lawyers said: “Are you joking me? In the Guardian???”

Note (only read if you are a nerd): Across England, Scotland & Wales, there was a 74% increase in the number of age discrimination ET claims in 2020, compared to 2019. And there was a 176% increase in Oct-Dec 2020, compared to the same quarter in 2019. But that was mostly due to a 13,043% increase in Scotland in October 2020 (when there were 920 claims), compared to October 2019 (when there were 7 claims).

Strip out the figures for Scotland (shown in the chart above), and there was a 30% increase in England & Wales in 2020 (when there were 2,662 claims), compared to 2019 (2,021 claims), and a 21% increase in Oct-Dec 2020 (when there were 672 claims), compared to the same quarter in 2019 (555 claims). And it is really only that three-month period Oct – Dec 2020 that we need to focus on, as that is the first quarter in which we can expect to see any impact of Covid and the associated lockdowns on the number of ET discrimination claims. Why else would Rest Less, the Centre for Ageing Better and their pet journalists have focused on it in their garbage articles, eh? [Yes, yes, I know.]

To put that 21% rise in context, in Oct-Dec 2020, across England, Scotland & Wales the total number of new ET single claims/cases (arguably the best benchmark in this context, but see below) rose by 25%, compared to the same quarter in 2019; unfair dismissal claims were up 28%, sex discrimination claims were up 13%, and both disability discrimination and pregnancy/maternity discrimination claims were up 8%. The number of age discrimination claims is very small, relative to major ET jurisdictions such as unfair dismissal, so only a numpty gets super excited about percentage changes in the number, which goes down as well as up.

For example, the 3,668 age discrimination claims in England, Scotland & Wales in 2020 is way down on 2017, when there were 6,704 claims, on 2016, when there were 7,498 claims, and on 2015, when there were 12,654 claims. Why did the Guardian, the Telegraph, the Express, the Daily Fail, Personnel Today, the Yorkshire Post and People Management not mention this steep decline? Surely Rest Less and the Centre for Better Ageing should be celebrating this long-term downward trend?

All this data has been freely available on the MoJ website since 11 March 2021, so it’s not really ‘news’ on 1 June. And the October 2020 figure in Scotland appears to reflect the lodging of a single multiple claimant case (with some 900+ claimants) by the Scottish Police Federation, in respect of changes to police and other civil service pensions made by the Government in 2015 – so, nothing to do with Covid or the lockdowns.

Spotting a quirk in the ET statistics and then claiming this proves something your organisation gives a shit about is an old PR trick that I have written about here and, even longer ago, here.

On Twitter, Giles Sheldrick of the Daily Express has sought to defend his numptiness by (a) conceding that age discrimination claims rose by just 30% in England & Wales in 2020, not 74% as stated in his article; and (b) asserting that the total number of jurisdictional complaints [sic] rose by 7%, whereas in his article he stated that this number (which he wrongly referred to as “overall cases”) had fallen from 183,207 to 180,430 (a drop of 2%). In short, in just 24 hours he’s gone from contrasting an increase of 74% with a decrease of 2% (a difference of 76 percentage points), to contrasting an increase of 30% with an increase of 7% (a difference of just 23 percentage points).

Leaving aside the question of whether Giles would have got his article in the paper if he’d used the 30% and 7% figures he now relies on, the total number of jurisdictional complaints is the least meaningful of the several different ways of measuring ‘overall cases’. A much more meaningful benchmark is the total number of claims, as that is also the total number of claimants, each of whom can make a claim in more than one jurisdiction. And, across England, Scotland & Wales, that number rose by 8%, from 108,592 in 2019, to 117,446 in 2020. But of course Rest Less and the Centre for Ageing Better chose to contrast the number of age discrimination claims with the total number of jurisdictional complaints, because of that convenient 2% fall.

Furthermore, some (including me) would argue that the most meaningful benchmark in this context is the total number of claims made by individual workers (i.e. the number of single claims/cases), as – unlike the total number of claims – that number is not subject to the distortions caused by multiple claimant cases brought by law firms and trade unions on behalf of sometimes very large groups of workers (e.g. that multiple claimant case with some 900 claimants in Scotland in October 2020). And, across England, Scotland & Wales, the total number of single claims/cases rose by 13%, from 39,966 in 2019, to 45,245 in 2020.

So, you can see why Rest Less, the Centre for Ageing Better and their pet journalists chose not to use the total number of single claims/cases as their benchmark. But, if we do use it as the benchmark, the statistics show that, in Oct – Dec 2020, the number of age discrimination claims in England & Wales rose by 21%, compared to the same period in 2019, and the number of single claims/cases rose by 27% (from 9,743 to 12,337). Those are really the only two percentages that matter here, and I doubt that even a future Pulitzer Prize-winning newshound like Giles Sheldrick could get a story out of them.

UPDATE (7 June): So, the numpties at People Management (the voice of the CIPD) have seen fit to add a corrective to their original article. This states:

Since publishing, People Management has learned there was a spike of 920 age discrimination complaints made in Scotland in October 2020 – accounting for a quarter of all age discrimination complaints made last year – which could be attributed to coordinated public sector claims following a 2018 Court of Appeal ruling on pensions.

In response, Rest Less noted that excluding the figures from Scotland, England and Wales had still seen a 30 per cent rise in claims for age discrimination last year, whereas the total number of [jurisdictional] claims for all reasons only increased by 7 per cent.

Stuart Lewis, founder of Rest Less, said: “While some of the rise can be attributed to a specific case based in Scotland, the underlying trend of age discrimination claims is clearly up year on year and we know that the pandemic has exacerbated age discrimination in both the workplace and the recruitment process.

Leaving aside the question of whether Stuart Lewis of Rest Less would have got quite so many numpty journalists to copy out his press release if he’d used the 30% and 7% figures, rather than 74% and -2%, this still begs the question: so fucking what?

Because, if we look at what happened, month by month, in England & Wales in 2019 and 2020, we can see that much of that 30% increase occurred in January, February and July 2020. And there certainly won’t have been any impact of Covid and the lockdowns on the number of age discrimination claims in January and February 2020, as the first lockdown only started on 23 March.

As for July 2020, that is still a bit too early to expect to see much if any impact of Covid and the first lockdown on the number of ET claims, given the need for any would-be ET claimant to go through statutory Acas early conciliation before being able to lodge an ET claim. The spike that month seems more likely to be due to the lodging of a multiple claimant case somewhere. And – lo! – if we look at the data for July 2020, we find that 208 (57%) of the 364 age discrimination claims in England & Wales were lodged in just one region: London. The month before, there were just 22 such claims in London region (out of a total of 199), in August there were 64 (out of a total of 175), and in December – when employers were busy ditching older workers by the thousand, according to Rest Less and the Centre for Ageing Better – there were 26 (out of a total of 189).

So, if we compare the last five months of 2020 with the same period in 2019, we find that age discrimination claims in England & Wales increased by just 7%, from 969 to 1,041. Which I suggest is no big deal, and certainly doesn’t merit feverish coverage in four national newspapers, a regional newspaper and two supposedly specialist journals.

Update (10 June): So, ten days after I wrote to the Guardian‘s Readers’ Editor to request a correction, the Guardian has today amended its original article, to reflect the 30% and 7% figures on which Stuart Lewis of Rest Less now relies.

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You never miss the ET claims, until they are gone

With apologies to Chaka Khan, the latest set of weekly HMCTS management information on the backlog of Employment Tribunal (ET) cases – which the Ministry of Injustice has been publishing since the fourth month of the pandemic, alongside that for other courts and tribunals – suggests the Government’s repeatedly promised Employment Bill may not be the only thing to have gone missing recently.

Since the start of the year, this weekly management information had suggested that, due to a steady decline in the number of new ET single claims/cases, the ET system had finally got on top of the backlog of such claims/cases – which has ballooned by 48% since the onset of the pandemic – and had even started to reduce it: the backlog peaked at 45,376 in late February, then fell by 1,034 over the first three weeks of March.

And the latest set of this management information, published this morning, should have set out the data on new claims/cases and disposals in the five weeks ending 28 March, 4 April, 11 April, 18 April and 25 April. However, the relevant cells in the spreadsheet for the latter four weeks are blank, and a note at the top of the spreadsheet states:

The workload information for April is not included in this release, as the work of the Employment Tribunal transfers to a new case management system. The figures for April will be updated in [a] future release of this [Management Information].

Which is understandable, perhaps, but does leave us with the rather odd fact that, according to the published HMCTS management information up to 28 March, the weekly number of new single claims/cases fell from more than 1,000 in each of 13 of the last 15 weeks of 2020 (an average of 1,067), to just over 900 in mid-January, then to an average of 822 in February, to 623 in mid-March, and an almost microscopic 360 in the week ending 28 March (see the table, below).

Now, it is possible that the number of new ET single claims/cases has fallen by 66% over the first three months of 2021, to a level not seen since the 2013-17 era of ET fees. But it doesn’t seem very likely. In late 2020, the trend was (mildly) upwards.

But wait! In tiny print, at the bottom of the spreadsheet of HMCTS data, is a somewhat cryptic footnote. This states:

The Employment Tribunal is moving onto a new case management system [CMS] for the administration of work from March 2021. HMCTS is currently working to incorporate the data from this new IT system alongside longer-established data sources to provide complete management information for this jurisdiction. While this work is ongoing, figures shown [in this spreadsheet] are only from the longer-established data sources and do not include all the cases being administered using the new system. As a result, the figures may show declining trends, but will be incomplete and reflect the transition in case management systems.

Could it be that new ET claims/cases administered under the new CMS – perhaps including in January, February and March as the new system was being piloted and/or live tested, before going fully live from 1 April – have, in effect, gone missing from the published HMCTS data? That is, the decline in new claims/cases shown in the published data isn’t real. In which case, it may well be that the ET system has not yet got on top of the (possibly still growing) backlog, after all.

Perhaps we should be told. Whatever, as the Low Pay Commission notes in a new report on enforcement of the minimum wage, the average waiting time for an ET hearing is now “over 12 months”.

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Hey, Barons Adonis & Cashman, some Bills are only about women. Get over it.

Last week, it emerged that Hibo Wardere, a survivor of and indefatigable campaigner against what even the woke kids at Amnesty International still call Female Genital Mutilation (FGM), has started selling T-shirts emblazoned with the slogan “I am a woman. Get over it.” This is in response to Hibo being monstered on social media by trans activists – some of them survivors of an incorrect use of their pronouns – for not campaigning against FGM in a way that is sufficiently inclusive of scrotum-owners. Or something.

And this week, in the House of Lords, the scrotum-owners were at it again. Well, two scrotum-owners: Barons Andrew Adonis and Michael Cashman.

On Monday, just minutes into the Second Reading debate on the Ministerial & other Maternity Allowances Bill – which creates a discretionary power for scrotum-owner Boris Johnson to allow pregnant cervix-haver Suella Braverman to take paid maternity leave without having to resign as Attorney General – scrotum-owner Lord Adonis of Camden Town popped up on Twitter to announce that “We are listening to a ludicrous speech in the House of Lords from a right wing Tory objecting to gender neutral drafting of legislation on the grounds that it is ‘woke’.”

Given that Baron Adonis tweeted at 3:24pm, it seems reasonable to assume that he was referring to cervix-haver Baroness Noakes, the second speaker in the debate, who spoke from 3:17pm to 3:26pm. And what Baroness Noakes had actually said, literally while Baron Adonis was composing his electronic commentary on the debate, was:

Clause 1(3) [of the Bill] uses the language of “the person is pregnant” and “the person has given birth to a child”.

It is a biological fact that only women can be pregnant and give birth. That is why laws that relate to maternity issues have in the past routinely been drafted using the words “woman”, “she” and “her”. It is not good enough to just say that we have gender-neutral drafting now. When Jack Straw, as [Leader of the House of Commons], announced in 2007 that the Government would use gender-neutral drafting, the context was the long-standing interpretation rule that words referring to the masculine gender include the feminine. This was thought to be demeaning to women, although I personally never felt demeaned by it. The Statement made it clear that this was not intended to outlaw the use of particular genders where only one is involved. It was not intended to prevent women from being mothers. It is ironic that Jack Straw’s generous gesture towards equality has now been turned against women.

Just three years after the 2007 Statement, the Equality Act 2010 was passed. That clearly uses female terminology to define the protected characteristics of sex and pregnancy. On 12 December 2013, your Lordships’ House had a debate on gender-neutral drafting. The Minister, my noble friend Lord Gardiner of Kimble, said: “The guidance”— that is, the guidance from parliamentary counsel—

“also recognises that there must be some flexibility and that there will be some Acts where only gender-specific drafting can be usefully applied. In a case where a person has to be of a particular gender—male or female—gender-neutral drafting does not require drafters to avoid referring to the gender. I think your Lordships would agree that that would be the case for legislation about maternity.”

At this point, the debate had been going for a full 21 minutes and, given the frustrated tone of his tweet, it may be that Baron Adonis had reached the limit of his attention span. But, had he listened on for just ten more minutes, he would have heard his own front-bench colleague, Baroness Hayter, deputy leader of Labour in the Lords, endorse – on behalf of the Labour Party – the concern of the “ludicrous” and “right wing” Baroness Noakes:

As we heard from the noble Baroness, Lady Noakes, there is one unusual choice of words in this Bill: the reference to a “person”, rather than a “woman”, being pregnant. The Minister has provided assurances that this is a drafting issue and does not signal any change of policy, but there is no doubt that it seems at odds with other legislation on maternity rights and protection. More surprising, as we heard from the noble Baroness—she actually called it garbage—was the statement made by [the Minister’s] colleague in the Commons:

“It is not the case that we could legally and correctly use the word ‘woman’ in this piece of legislation”.

Why not, given that it is in the notes and the Minister assured us that

“it will continue to be the policy of the Government to refer to ‘pregnant women’ in broader Government publications”?

We look forward to what the Minister just promised us: his explaining a little more when he winds up about why this language was used and whether there is any chance of it conflicting with other relevant legislation.

A few minutes more, and Baron Adonis could have heard – who knows, maybe he did hear – another of his Labour colleagues, Baroness Gale – admittedly just another cervix-haver – set the issue out in terms that any ennobled scrotum-owner should be able to understand:

It is surprising to me, and to many others, that the word “woman” is not used in this Bill but instead the word “person” is used, as the noble Baroness, Lady Noakes, explained so well. I certainly agree with her. Considering that only women can get pregnant and give birth, I cannot see any reason why “woman” cannot be used. I believe in using gender-neutral language where appropriate, but I do not believe it is appropriate in this Bill. In his letter to Peers, the Minister explained that “person”

“reflects modern drafting convention and guidance, in place since 2007, and common across much of our legislation”.

I note that the Minister says “much”, which I assume means “not all”.

Jack Straw, as Leader of the House of Commons, in 2007 made a Written Statement to the House of Commons dealing with using gender-neutral language in legislation. It was not debated, but this has become the guidance, and in many respects was good, as no longer in legislation would we see the male gender used when it should have referred to men and women.

But there are examples, such as in [this] Bill, when the word “woman” should be used rather than “person”. I give the example of the Equality Act 2010, which uses “woman”, not “person”, throughout and in all sections related to pregnancy, maternity and lactation. I refer again to the Minister’s letter:

“We recognise that a drafting convention that was originally designed to avoid denigrating women should not result in the erasure of women from our public discourse.”

As a result, the Explanatory Notes have been changed, using “Minister” instead of “person” in several places. I just wonder about that. The Minister recognised that it was not appropriate to use “person” and changed it to “Minister”, but why could it not have been changed to “woman”?

On the issue of language, at Second Reading in the Commons the Paymaster-General, Penny Mordaunt, said that she would provide further explanation in Committee but that she understood “how offensive the word ‘person’ or ‘persons’ can be in this context”.

Commenting further, she said:

“I hope that we can make some changes, if not to the legislation then to the explanatory notes, that will address some of” these “issues.”

However, she said that the Government could put the word “Minister” in the Explanatory Notes and stated that:

“Although that is still gender-neutral language, it is a much less jarring term than ‘person’.

When legislation is intended only for women and not for men, I hope that the Minister will accept that “woman” should always be used in place of “person”.

Never mind the Minister, what about Baron Adonis?

It is not clear, from Hansard or Twitter, whether Baron Adonis was still listening to the debate at this point, so we don’t know whether he heard another of his Labour colleagues, Lord Hunt of Kings Heath – hurrah, a scrotum-owner! – express remarkably similar views to the “ludicrous” and “right wing” Baroness Noakes:

A colleague of mine counted the number of times “women” was used in the Commons debate and it came to over 300, yet the Bill makes no mention of women. Instead, we heard the rather inelegant terms “person who is pregnant” and “person who has given birth to a child”, which do not seem to add to what we understand as good English.

The justification was of course Jack Straw’s change in the convention and revised guidance. However, as the noble Baroness, Lady Noakes, said, that was designed to promote the rights of women because previously, “he” was always taken to mean “he and she” in legislation. For that to be used against women in this Bill is extraordinary.

The [Minister] was very helpful in arranging a meeting last week—we are meeting him again—and I am grateful to him. He must know that the Bill in the way it is worded is indefensible. If this had been a normal Second Reading, the Minister would have observed this debate, gone back and said, “We’re going to get an amendment and we’ve got to change it.” I know we have only four days to go but I urge him to think again. He should also say that this will never be used as a future precedent in legislation. He should ensure that parliamentary counsel changes the guidance, because it is not up to the mark.

By now the debate had been going for a whole hour, and again it is unclear whether Baron Adonis was still around to hear disability campaigner and Paralympian Baroness (Tanni) Grey-Thompson – who surely knows at least as much about overcoming inequality as Baron Adonis – say:

Like others, I will raise the language used in this Bill. I support neutral language, and there are many benefits in terms of driving equality. Yet for so many we do not live in an equal society. The Equality and Human Rights Commission recently said—this relates to the pandemic—that pregnancy and maternity discrimination is the “most urgent and immediate” threat to equality. We should seek to correct this. The fact that we measure pay gap, employment gap, educational attainment and a whole set of other metrics shows us that our society is not equal.

I have been contacted by women and men who asked why the word “woman” is in the Explanatory Notes and not the Bill. I will be clear: I think the word “woman” and variations of it should be used in this Bill.

Language is important. I have always said that language is the dress of thought. As we know, the specific language used in legislation is incredibly important. It has far-reaching consequences. It is about providing rights and protection and it is our duty to find the balance in that.

I have spent most of my life fighting for inclusion for everyone that society chooses to label as different. I have spent most of my life being othered by language, attitude and a lack of physical access. Growing up, I was called handicapped or a crippled child; luckily, there has been an evolution in that language. Perhaps we need to find a new form of language to include those who feel othered, but it must not be at the expense of the word “woman”.

One thing I am certain of is that many in your Lordships’ Chamber, and those who have a different view from mine on the use of language, want to stop the denigration of women. Excluding the word “woman” from this Bill and other potential legislation does not help the cause of equality for everyone or anyone.

Similarly, we don’t know whether Baron Adonis heard Lord Pannick QC – who probably knows a tad more law than Baron Adonis – explain that:

On the language of the Bill, Parliament has often referred to the person who gives birth to a child as a woman and, indeed, a mother. Examples have already been given and I add one—Section 33(1) of the Human Fertilisation and Embryology Act 2008 defines a “mother” as:

“The woman who is carrying or has carried a child”.

However, your Lordships should recognise that the noble Baroness, Lady Jones of Moulsecoomb, was correct to point out that there are trans men, who were born female, who have given birth. One brought legal proceedings in the Court of Appeal last year. A judgment was given, in which noble Lords may be interested, by the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, in the McConnell case.

The Lord Chief Justice explained that the claimant had been registered at birth as female, but had transitioned to live in the male gender and had received a gender recognition certificate under the Gender Recognition Act 2004, stating that his gender is male. He then underwent artificial insemination, became pregnant and gave birth to a child. He brought legal proceedings complaining that the child’s birth certificate recorded him as the mother. He said that, because he had transitioned, he should be recorded as the father or as a parent. The Court of Appeal rejected his complaint and said that recording him as the mother was not a breach of his human rights.

The Lord Chief Justice said that, as a matter of common law and under the legislation governing the registration of births, the person who gave birth to a child is the mother, and the Supreme Court dismissed an application for permission to appeal. In light of that judgment, I do not think that there are any legal difficulties in referring to mothers or women in the Bill. The mother of Parliaments, in doing that, would be showing no disrespect to trans men.

Whether or not he heard any of the above, Baron Adonis was not chastened and, the following morning, he doubled-down by accusing Lord Hunt of being ‘mystifying’, and then asserting that he will not be silenced, even though he clearly knows very little about the subject on which he has so publicly pontificated, and now wishes to be non-silent about.

You’d think this was enough testosterone-fuelled idiocy for one week, but no! Later on Tuesday, another ennobled scrotum-owner, Lord Michael Cashman of Limehouse, felt compelled to join ‘the debate’, even though (by his own admission) he hadn’t attended (or possibly even listened to) any of Monday’s actual debate in the House of Lords. That evening, he tweeted: “I wasn’t present for the debate yesterday in the House of Lords but I am deeply worried by the wilful and blatant misrepresentation and defamation of trans-women. As someone who believes in equality I can never sacrifice the rights of others in order to maintain my own. Equality.”

As a member of the House of Lords, Baron Cashman has unhindered access to the Hansard record of debates, which is published overnight. So, even though he did not attend Monday’s debate, he could – and arguably should – have read the Hansard before tweeting his ‘deep worries’ about it more than 24 hours later. On Twitter, I asked Baron Cashman for a column reference. He hasn’t replied, obviously, but if and when he gets around to reading the Hansard he will find that there was no misrepresentation or defamation of trans-women – wilful or otherwise – during Monday’s debate, not least because the words ‘trans-woman’ and ‘trans-women’ were not used once by anyone. And it’s hard to be defamed if you’re not even named. Noddy and Big Ears were also not defamed during the debate.

Defamation is a big word, even for an ennobled scrotum-owner, so it may be that we will see some kind of legal move on the part of Baron Cashman that will reveal whose rights are being sacrificed, and by whom. Because I imagine that, just like Baron Adonis, Baron Cashman will not be silenced.

Oh, and – at some point – Baron Adonis blocked me on Twitter. Look at me, I’m crying.

Fortunately for the Barons, there is no need for them to worry their follicly challenged heads. The Ministerial & other Maternity Allowances Bill really is just about pregnant women, new mothers and their maternity leave. Scrotum-owners just have to get over it.

Update: So, the speech so haughtily dismissed by Baron Adonis as “ludicrous” turned out to be the pivotal one that, backed by the Baron’s own party leadership, led to an embarrassing retreat by the Government. And to this classic BBC headline.

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