James Hand: Ministerial Maternity Leave

The Ministerial and other Maternity Allowances Bill is designed, in the words of the Prime Minister’s Written Statement, to remedy the wrong of having to choose between “taking leave to recover from childbirth and care for a new-born child or resigning from office” which is clearly “not acceptable in modern times”.  The Paymaster-General, introducing the Bill in the House of Commons, while acknowledging it “is specific and limited in its aims” (col. 558), hailed it as “a landmark measure” (col. 526) making “an important and long overdue change to the law, enabling Ministers for the first time to take paid maternity leave from their job for an extended period” (col. 558).  While some change is necessary, neither statement in isolation, accurately represents the Bill which has been unnecessarily rushed through Parliament and leaves many matters for later determination.

As may be expected from its name, the Bill focuses on the mechanism for pay rather than leave and on maternity rather than the more casually accommodated paternity leave or the more complex shared parental and adoption leave.  The reason for fast-tracking the Bill, all three stages in the House of Commons having taken place on one day, is stated in the Explanatory Notes to be due to “a specific individual case of a female holder of an individual ministerial office wishing to take maternity leave [and w]ere the Bill not to get Royal Assent swiftly, this individual would lose out on the benefits provided by the Bill” (note 26).  This need for speed is given as the reason why it is limited in focus.  However, given the special status of the individual, a more tailored Bill could have been passed if necessary, allowing greater time for consideration of the Bill’s approach and of a more comprehensive package.  

It is not the case that maternity leave for ministers has not been available in the past.  As noted by the Prime Minister in his written statement, he made changes to the Ministerial Code on taking office in 2019 regarding maternity leave and other extended absence.  Para 4.11 of the code states: 

Ministers who wish to take maternity leave (of up to 6 months), or other extended absence from Government, must seek the permission of the Prime Minister. Where the Prime Minister agrees to such a request, the Minister must not exercise their functions as a Minister during their period of absence unless this is agreed by the Permanent Secretary and the Minister who is temporarily covering the Ministerial responsibilities.

It is not the case that ministers have not taken paid maternity leave before that.  In 2001, Yvette Cooper took paid maternity leave in line with Department of Health guidelines (following discussion with her Secretary of State) which provided then for 18 weeks paid leave.  That is not an isolated example: Meg Hillier took paid leave in 2009 from the Home Office, Chloe Smith took six months leave from the Cabinet Office in 2019 and Kemi Badenoch was reshuffled from Education to the Treasury while on leave in 19/20. 

It is also not the case that the Act will provide a right for ministers to take maternity leave – it remains at the discretion of the Prime Minister – and, under the terms of the Act, ministers must in fact leave their post and take up a new office as Minister on Leave, s.1(2)(b) holding that “the person ceases to hold a ministerial office (“the first ministerial office”) but remains a member of Her Majesty’s Government in the United Kingdom by virtue of immediately being appointed to another ministerial office (“the designated ministerial office”) for the purposes of being designated under this section.”

The rationale for this is that the caps on salaries and numbers of ministers under the Ministerial and Other Salaries Act 1975 (which limits the number of paid ministers (and the like) to 109) and the House of Commons Disqualification Act 1975 (which limits the number of ministers (and the like) who can sit in the Commons to 95) limit the capacity to create covering posts (and the designated ministerial office of Minister on Leave, is under s.3, not paid under the Ministerial and Other Salaries Act 1975 nor taken into account under the House of Commons Disqualification Act 1975).  It is also said that this formulation allows Cabinet Ministers and Law Officers to be covered as their “constitutional role and the sheer volume and complexity of their workloads” has meant they cannot take advantage of the route previously available to ministers.  If the House of Commons had taken longer than four hours over the Bill – a significant amount of time being devoted to the question of using gender-neutral language in a Bill about maternity – these arguments could have been subjected to greater scrutiny.

Under the Ministerial Code (quoted above), it is clear that the Minister must not exercise their functions as a minister during their period of absence unless this is agreed by the Permanent Secretary and the covering Minister, and so it is unclear why a minister has to vacate their office to go on leave if the problem is lines of authority.  If a junior minister can be covered by a junior minister, a Cabinet minister could be covered by a Cabinet minister (or someone temporarily in that role) and thus discharge statutory functions (the discharge of which are stated to be the reason why the provisions for ministers are different from the provisions for the small number of opposition posts covered) so it may not be the constitutional issue that is the problem there but “the sheer volume and complexity of the workload”.  If workload is the issue – and it cannot be shouldered by the junior ministers and a covering Cabinet minister – then the issue would seem to be the number of ministers whether at Cabinet or sub-Cabinet level.  The solution to that being either to run the Government with enough headroom to appoint temporary ministers within the cap or, as per the Act, to change the cap.  But it is unclear why the way round the 1975 Acts necessitates forcing a minister to leave their office (contrary to the concept of maternity keeping-in-touch days although as members of the government they can continue to be briefed on work) and take up the holding office of Minister on Leave, as opposed to designating an additional covering minister as a covering minister.  There is under the Act, intentionally, no guarantee that the Minister on Leave would revert to their original position as who serves is a matter for the prime minister’s exercise of the prerogative (col. 593).  However, as can be seen by Kemi Badenoch’s move from Education to Exchequer Secretary, someone can be shuffled while on leave under the existing route and they do not need to pre-vacate the position.  In terms of generosity (of six month’s pay), a comparison is drawn with the armed forces and the civil service – both of which also feature an element of rotation of staff – but there is an expectation there that someone on leave for six months or fewer will return to the same position.  The length of the designation as Minister on Leave is, similarly, for a maximum of six months.  Men who take paternity leave, as it is shorter, are said not to need a special provision as the work can be covered.  Adoption, shared parental leave, longer term sickness absence and the question of unpaid ministerial roles – as well as the position of backbench MPs (who can now take maternity leave but struggle with IPSA to get suitable expenses) are all set to be revisited before the Summer recess (col. 961).

This rushed provision, with its partial and in some ways retrogressive approach to maternity leave (in forcing the minister to leave their post), is attributable to the Attorney-General being set to take maternity leave within a month.  While the considerations about alternative ways set out above may have benefited from further debate about, for example,  the message that it sends and the practicalities of who should cover, the situation of the Attorney-General, the impetus for the general change, is atypical.  Unlike the other ministers, the Attorney not only has a single, ready-made deputy in place but since the Law Officers Act 1997 the Solicitor-General can exercise any function of the Attorney-General.  In stepping up to cover the Attorney’s work the Solicitor-General would offer continuity and an expectation that the substantive Attorney would return to the post, which may not be the case with a de novo appointment (unless, perhaps, an emeritus Attorney-General was re-employed).  Given the workload of the Law Officers’ Department, it may be that some of the combined workload could not devolve onto officials in which case a small change providing for a temporary assistant solicitor-general may have been required but leaving the generally applicable scheme to have the parliamentary scrutiny it deserves.

James Hand is a Reader in Law at Portsmouth Law School, University of Portsmouth

(Suggested citation: J. Hand, ‘Ministerial Maternity Leave’, U.K. Const. L. Blog (1st March 2021) (available at https://ukconstitutionallaw.org/))