Recently on this blog, I noted that pretty much all that Labour’s otherwise impressively ambitious September 2021 ‘green paper’ on employment rights had to say about securing a much-needed societal shift towards more equal parenting – a shift essential to ending the Gender Pay Gap, given how much of that pay gap is due to the ‘motherhood penalty’ – is that “a Labour Government would urgently review the failed Shared Parental Leave system, with reforms to incentivise sharing of leave”.

I suggested that, after a marathon, four-year evaluation of the SPL scheme by the current Government, pretty much the last thing we would want from a new Labour government would be yet another ‘review’ to tell us (again) what we already know. But what about those “reforms to incentivise sharing of leave”? And why on earth are they still talking about the sharing of parental leave?

The answer to these questions, I strongly suspect, is that the authors of the ‘green paper’ were heavily influenced by a proposal set out by the Fabian Society and Centre for Social Justice’s Early Years Commission in July 2021 (but seemingly available to and under discussion by at least some of the then shadow ministers for some time prior to publication of the Commission’s report).

Loosely based on the parental leave provisions in Sweden, this proposal would replace both the SPL scheme and the existing statutory maternity leave provisions with a new system consisting of 14 weeks of paid maternity leave (25 weeks fewer than now), 12 weeks of paid paternity leave (10 weeks more than now), and 60 weeks of shared parental leave, to be “shared as a couple wishes”. (In contrast, in Sweden each parent has their own entitlement to parental leave.)

Not to beat about the bush, the proposal is a horrible mess – if its author(s) first established and then followed any guiding principles, it is wholly unclear what those principles might be. And, accordingly, there are a number of reasons why Labour would be unwise to run with it.

Firstly, the proposal fails to recognise the very different purposes of maternity leave and parental leave. Pregnancy and childbirth are not equal endeavours on the part of two parents: unlike new fathers (and other second parents), new mothers need paid time off work to recover from the often severe physical and mental impacts. Plus, many of those new mothers will be breastfeeding (the World Health Organisation and UNICEF recommend that they do so, on demand, for six months).

Similarly, paternity leave is also a health and safety measure, aimed primarily at enabling the father (or other second parent) to support the mother at and immediately after the birth. Becoming a new mother is literally dangerous (especially for black women, who are four times more likely to die during pregnancy than white women). Becoming a new father, not so much.

Parental leave, however, is about parenting. And the goal of policy reform must be more equal parenting over the life of the child, not just in the first 12 or 18 months after birth. The reason those first 12 or 18 months matter so much is that there is overwhelming research evidence that fathers being involved in parenting early in the life of their child leads to greater, sustained involvement over the coming years. And, of course, sharing the care of the child in the first 12 to 18 months enables both parents to retain a strong link with the labour market. But that doesn’t imply or require identical entitlements to paid leave in those first 12 or 18 months.

We know – from BEIS research, a statement by BEIS minister Paul Scully to MPs in June 2020, and the DWP’s quarterly statistics on Maternity Allowance grants – that the average new mother in the UK takes some 39 weeks of statutory paid maternity leave. In other words, she takes her full entitlement to paid leave. And that is hardly surprising, as – contrary to the impression often given by Paul Scully and other government ministers, and even by some academic researchers – the amount of paid leave reserved for new mothers in the UK is short by international standards: in 2020, the OECD and EU averages were 51.5 weeks and 63.5 weeks respectively.

So, were a Labour government to implement the Fabians/CSJ proposal, and cut the duration of statutory paid maternity leave from 39 weeks to just 14 weeks, without reserving any of the 60 weeks of shared parental leave for mothers, it would move the UK to the far left of the following chart. And I’m not sure those are the optics that a new Labour government (or a Labour opposition seeking to win a General Election in 2023 or 2024) would be looking for.

Ironically, had the UK not left the European Union, it would also put the new Labour government at risk of infraction proceedings by the EU Commission. Because, as BEIS noted in its February 2013 impact assessment of the SPL scheme (see paragraph 33 on page 11), under Article 3 of the 1992 EU Pregnant Workers Directive the UK was (while in the EU) required to maintain its provisions at the time of transposition – which in 1999 was 28 weeks of paid maternity leave – not just the minimum of 14 weeks set out in Article 8 of the Directive (this is known as ‘non-regression’). Indeed, it is arguable that it would in any case put the new Labour government in breach of the non-regression provisions of the December 2020 Trade & Cooperation Agreement between the UK and the EU. And, as already noted, it would not sit well with the World Health Organisation and UNICEF recommendation that newborns be exclusively breastfed, on demand, for the first six months of their life.

Yes, under the Fabians/CSJ proposal, new mothers would also have access to some (or even all) of the proposed 60 weeks of shared parental leave. But that brings us to the second reason why Labour would be unwise to run with the proposal: it is simply not clear how or why the proposed entitlement to shared parental leave would work any better than Shared Parental Leave has since 2015.

Sure, a broadly similar system works in Sweden. But the UK is not Sweden, and it cannot be assumed that a system that works in Sweden would produce good results in the UK, where pregnancy and maternity discrimination and other poor practice by employers is widespread and deeply entrenched. Sweden is simply streets ahead of the UK in terms of the economic and social infrastructure, the societal norms, and the workplace culture that are conducive to more equal parenting. Most crucially, in Sweden parental pay is administered directly by the governmental Social Insurance Agency, rather than by employers, the cost of state-subsidised childcare is capped at a fraction of the average cost in the UK, and all children have a right to a place in a nursery school from the age of 12 months.

As the Fabians/CSJ Early Years Commission’s report itself notes, in the UK all too many new mothers “especially from low-income families, return to work earlier than they would have preferred”. So, quite why the members of the Commission thought the solution to that problem is to cut the duration of statutory paid leave reserved for new mothers by two-thirds, from 39 weeks to 14 weeks, is a bit of a mystery.

In short, implementation of the Fabians/CSJ model would drive a coach and horses through the key principle identified by the TUC and others: that the much-needed overhaul of the chronically failing SPL scheme must not involve any erosion of women’s existing rights to leave and pay. In doing so, it would send an appalling message to dinosaur employers all too happy to cut their contractual paid maternity leave to 14 weeks. And it would retain much of the legal and administrative complexity of the SPL scheme so abhorred by parents and employers.

Instead, the new crop of Labour shadow ministers (and their advisers) need to be thinking in terms of individual, non-transferable rights to paid leave for each parent. For it is clear from the international evidence that fathers are more likely to share child care if there is a specific portion of parental leave reserved for them. So, there should be no transferable or ‘shared’ leave, which in any case we know from bitter experience does not work well in the UK. And reform needs to significantly enhance provisions for new fathers (and other second parents), without eroding the existing rights of pregnant women and new mothers.

The Fabians and CSJ are right on one thing though: the need to increase the ludicrously low basic rate of statutory maternity, paternity and parental pay. From April this year the weekly rate of £156.66 will equate to just 47 per cent of a 35-hour week on the adult rate of the National Living Wage (NLW), down from 60% in 2012, and to just 37% of women’s median weekly earnings. Under the Fabians/CSJ proposal, the basic rate of maternity, paternity and parental pay would more than double, to parity with a 37.5-hour week on the NLW – a move that would add £3.4bn to the current annual spend of £2.6bn even without any new entitlements to leave.

Were the average new mother to take 38 of the 60 weeks of shared parental leave potentially available to her under the Fabians/CSJ proposal, in addition to her 14 weeks of maternity leave (i.e. a total of 52 weeks of paid leave, the OECD average entitlement), that would add another £1.8bn per year to the annual spend, even if the average father took no more leave than now. And, were the average new father to take just half of their extra ten weeks of paid paternity leave (as well as the two weeks he already has), and just five of the remaining 22 weeks of shared parental leave, that would add another £1.4bn per year. Yet those average fathers would still be taking only 19% of all leave taken (12 out of 64 weeks), well below the 28% in Sweden.

It remains to be seen whether shadow ministers (including the shadow Chancellor) are up for any – let alone all – of this potential extra cost of some £6.5bn per year, but the bottom line is that increasing the rate of statutory pay across the board is the only credible (and lawful) way to incentivise take-up of parental leave by fathers (as distinct from just making it easier for them to take leave). So, even if take-up of new leave entitlements were lower than assumed in the previous paragraph, the harsh truth is that any serious attempt to generate a shift towards more equal parenting will require serious money.

Which brings me to yet another problem with the Fabians/CSJ proposal. It is inconceivable that any government – even a new Labour government – would be in a position to implement reforms costing billions of pounds per year overnight, in one go. Realistically, such reforms will need to be spread over a decade, or even longer. Which means the reforms will need to be capable of being broken down into practicable stages, each building on the previous stage. And it’s not immediately obvious how the new legal framework at the heart of the Fabians/CSJ proposal could be broken down into a series of incremental, ‘stepping stone’ reforms.

Fortunately for shadow ministers, there is an ‘oven ready’ alternative to the Fabians/CSJ model. Maternity Action has proposed a simple 6+6+6 model consisting of individual, use-it-or-lose-it rights to six months of paid maternity leave (for birth mothers) and six months of paid parental leave for each parent. This would provide new fathers (and other second parents) with their own entitlement to six months of paid parental leave (to be taken in blocks or all in one go), while maintaining (in slightly altered form) the existing rights of pregnant women and new mothers.

This new legal framework (and a doubling of the basic rate of pay) could be introduced in stages over 10-15 years, with annual increases in the total spend of less than £300m in all but one year. And the principles on which the model is based have already been publicly endorsed by more than 20 organisations and trade unions, including the Fawcett Society, Gingerbread, NCT, the Royal College of Midwives, the TUC, Unison, Unite, the Women’s Budget Group and Working Families.

What’s not to like?