Attorney General, Suella Braverman (Photo by Tolga Akmen/AFP via Getty Images)

Shock: there is a pregnant “person” in the Cabinet

Legislation on maternity leave is now drafted to apply to “a person” not “a woman” who is a mother

Artillery Row

There was broad agreement amongst MPs on Thursday afternoon that the Ministerial and Other Maternal Allowances bill was a belated and vital measure for equality and, at the same time, a narrow and restrictive entrenchment of the privilege of the ruling few. They were right on both counts. Introducing the bill’s second reading, the paymaster general, Penny Mordaunt, conceded that “the beneficiaries of this bill are very narrow.” All told, it would only apply to “a subset of ministerial and Opposition office holders—a payroll of just 115 people.”

Why the excitement and the rush? The legislation was sped through its Commons stages yesterday because the Attorney General, Suella Braverman, is expecting a baby later this month. Remarkably, this has not happened to a serving Cabinet minister before and so the mother of parliaments had not thought to legislate for such maternal possibilities.

“The prime minister believes that it is quite wrong for ministers to have to resign in order to leave work after giving birth to care for a newborn child,” Mordaunt reassured the House. And indeed, that no Cabinet minister should have to choose between her office and time with a new baby was uncontentious – MPs have moved with the times that much.

They accepted Mordaunt’s explanation that the legislation would provide six months maternity leave for Cabinet ministers (and some Opposition roles) but that the temporarily vacated role could not be adequately split among other ministers. Statutory restrictions on the size of the payroll complicated matters. But by designating a Cabinet minister as merely “on leave” a new, temporary, minister could act as cover without breaching the limit on the total number of ministers.

Six months’ paid maternity leave brings Cabinet minister mothers on to the same footing as the armed forces and civil service (though not many other public sector positions) and also with non-Cabinet ministers who have had that level of support since a change to the ministerial code in 2019.

In 2001, Yvette Cooper was the first minister to take (eighteen weeks) maternity leave whilst remaining a minister. She enlightened MPs into the confusion her decision sparked among Tony Blair’s New Labour modernisers: “I asked the health secretary what I should do. He did not know, and said, ‘Ask the prime minister.’ He did not know, and said, ‘Ask the cabinet secretary.’ He had absolutely no idea, and as ministers are Crown appointments, he said it was really a matter for the Queen, but nobody thought we should be asking Her Majesty.”

In the intervening twenty years, children have been born to three serving prime ministers and one chancellor. Those Downing Street fathers made do with the statutory two weeks’ paternity leave. Why did this legislation not give them the sort of six month paternity entitlement that it was extending to ministerial mothers? Why did the bill not include equal provision for those who adopted children, or for other forms of shared parenting arrangements? Mordaunt promised that further proposals to cover such issues would follow, ideally before the summer recess.

Little did Suella Braverman know what she was starting when the doctor gave her the good news of her pregnancy.

That pledge fell short of meeting the “whataboutery” concerns of many MPs. The Conservative Caroline Noakes and Labour’s Stella Creasy were among those demanding an equality impact assessment on the legislation. A privilege accorded to one group in the community (in this instance child-bearing Cabinet ministers) should be accorded to everyone. That – at least since the 1998 Human Rights Act and the 2010 Equality Act – is increasingly how legal entitlement now spreads from the specific to the general.

High on MPs’ lists of everyone else is the humble backbencher, on whose behalf Creasy (announcing her pregnancy) wanted to know when they will enjoy the same rights to paid time-off as Cabinet ministers. “The lawyers I have consulted,” warned Creasy, “tell me that it is arguable that this legislation breaches the human rights of those of us who are not covered by it but who are in the same position in seeking to do a job in this place, because article 14 [of the Human Rights Act] says that we should not be discriminated against in terms of the rights that are accrued in the workplace.” Little did Suella Braverman know what she was starting when the doctor gave her the good news of her pregnancy.

But the debate truly came alive over why the legislation referred to “a person” entitled to maternal leave. The SNP’s Joanna Cherry, whose trenchant defence of women’s rights has seen her vilified by transgender activists (not least in her own party), was especially suspicious:

“Why must we deny the fact that there are two sexes, and why must we deny that biological sex exists? Why are the Government not complying with the Equality Act 2010? That legislation refers to pregnancy and maternity, and uses the day-to-day language of centuries: woman, she and her. … Sex is a protected characteristic for a very good reason: discrimination against women is rooted in their biology.”

Amendments to write women back into the bill were duly proposed by Jackie Doyle-Price and Sir John Hayes who wanted to know, “how did we get to a place where a Conservative government brings a Bill before us that seeks in effect to abolish two beautiful words that have been used for centuries and embody goodness and truth: “mother” and “woman”? The Bill as drafted does just that. It rules those words out of law.”

At a time when Brighton NHS Trust is redefining breastfeeding as “chest-feeding” in order not to upset the trans community, it was not hard to understand why some MPs were suspicious. After all, as Theresa May’s women and equalities minister charged with reforming the 2004 gender recognition act, it was none other than Penny Mordaunt who had stated with great certainty in 2018 that “trans women are women. That is the starting point for this consultation.”

This time, Mordaunt fell back on drafting practice rather than trans rights. In referring to “a person” the legislation was following the convention introduced by Jack Straw in 2007 to use gender non-specific language. It was, she blocked, not the first bill to even use the term in relation to maternity issues. “I do not think that the clarity of the Bill would be aided by the amendments,” she concluded, “the current drafting is legally accurate and clearly covers all women who are pregnant or give birth.”

The amendments to restore “women” into statute law were ignored. The bill passed its Commons third reading on the nod.

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