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Mr. Burstow: Does the Minister agree that it might therefore be sensible to find an opportunity for the Commission for Healthcare Audit and Inspection, for example, to do some work in that area to make sure that best practice is clearly identified to assist with that developmental work?

Dr. Ladyman: The hon. Gentleman is quite right; we have to pursue a range of options to find the best way to make the Bill work. I was struck by what he said earlier about the need to take a holistic view of all the legislation put in place for carers. The carers grant has been identified for this and next year, so I think that we are reaching the point at which we need to look at a range of options on how we move the carers agenda forward. I certainly take on board his suggestion about the commission.

I can confirm that the Government are content with the Bill, which now achieves the broad objectives envisaged by my hon. Friend the Member for Aberavon. It ensures that carers are made aware of their right to an assessment of their needs. It enshrines in legislation the need to consider, when undertaking an assessment, the wider opportunities available for carers, and it provides councils with the necessary levers to get their partners in local government and the national health service around the table to develop more coherent carers support services.

What that means in reality is that the Bill offers real and tangible benefits for carers, and I am delighted to confirm that it is in a form that the Government can wholeheartedly support as it continues its journey through Parliament. I hope that the House will give the Bill—Sam's Bill, after my hon. Friend's late son—its Third Reading, and that the other place will ensure that it becomes Sam's Act.
 
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10.42 am

Dr. Francis: With the leave of the House, I shall reply briefly to the debate.

This has been a most productive and constructive morning. I am grateful to all who have spoken and all who are here to support the Bill. As we have heard, we are building on strong foundations, and I acknowledge the important work undertaken by Lord Ashley of Stoke and Lord Pendry of Stalybridge, and by my hon. Friend the Minister for Pensions and my right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke).

My late father was fond of saying, "y cam cyntaf yw'r cam pwysicaf"—the first step is the most important step. As we have heard, the Bill is not the first step for carers, but it is still an important new step. I am pleased that so many of us have taken that step together for the benefit of so many carers in England and Wales.

Question put and agreed to.

Bill accordingly read the Third time, and passed.

 
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Crown Employment (Nationality) Bill

Order for Second Reading read.

10.43 am

Mr. Andrew Dismore (Hendon) (Lab): I beg to move, That the Bill be read a Second time.

This is the second year in which I have tried to introduce the Bill under the 10-minute rule. Last year, it fell because of lack of time, but the real problem that it seeks to address remains.

The Bill's purpose is to remove restrictions placed on the employment of non-United Kingdom nationals in civil capacities under the Crown. In place of the current system, the Bill would open all civil employment under the Crown to applicants of any nationality, apart from such positions as would be restricted to UK nationals under rules made by the Minister for the Civil Service or by another Minister or Crown official to whom he had delegated the power to make such rules. Before I turn to the detail, I want to make it clear that the Bill does not deal with asylum, immigration or work permits, and it does not affect requirements for non-UK nationals to get leave to remain and to work in the UK before they can take up employment.

The rules restricting the employment of foreign nationals by the Crown have roots of more than 200 years. The Act of Settlement 1700 provides that no person born out of the kingdoms of England, Scotland or Ireland, or the dominions thereto belonging, should be capable of enjoying any office or place of trust, either civil or military. That prohibition has been amended over the years and does not apply to Commonwealth citizens or citizens of Ireland or to British protected persons employed in a civil capacity.

Section 6 of the Aliens Restriction (Amendment) Act 1919 provides that no alien shall be appointed to any office or place in the civil service of the state. "Alien" is defined in section 51(4) of the British Nationality Act 1981 as a person who is not a Commonwealth citizen, a British protected person or a citizen of Ireland. During the second world war, defence regulations permitted the temporary employment of aliens if no suitable British subjects were available. That provision was replaced by the Aliens' Employment Act 1955, under which prohibitions were relaxed so that aliens could be employed if they were appointed in a country outside the UK, the Channel Islands and the Isle of Man in a capacity that appeared to the Minister to be appropriate for aliens, or if they were employed in accordance with a certificate issued by a Minister, with the consent of the Minister for the Civil Service, in which case there must be no suitably qualified UK nationals available to do the work or the alien must possess exceptional qualifications or experience to do the job. Such certificates last five years and must then be renewed. In 2002–03, only 47 people were employed under those certificates, 33 of them in the Ministry of Defence.

The European Communities (Employment in the Civil Service) Order 1991 amended the 1955 Act to allow nationals of member states of the European Communities and their spouses and certain children to take up civil employment under the Crown, apart from public service posts within the meaning of the EC treaty. The rights of nationals of member states of the
 
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European Communities were extended to nationals of member states of the European economic area by section 2(1) of the European Economic Area Act 1993.

Against the background of a possible legal challenge at the European Court of Justice, further changes were made in 1996 to put Irish and Commonwealth citizens on the same footing as all other non-UK European Community nationals. An amendment was made to the civil service management code to restrict the employment of Commonwealth and Irish nationals in posts reserved for UK nationals.

The effect of the existing rules is that foreign nationals may be employed abroad in any civil post under the Crown, which includes the diplomatic service, if the Minister considers it appropriate. However, as regards civil employment under the Crown within the UK, Commonwealth citizens, British protected persons and nationals of member states of the European economic area may be employed only in posts that are not public service reserved posts. Nationals of all other countries may be employed in UK non-reserved posts only if a rarely issued exemption certificate is in force.

Although 75 per cent. of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals, the remaining 25 per cent., which require the special allegiance of public service posts, are entirely reserved for UK nationals. More posts are reserved than is operationally necessary, but that is unavoidable because of the present definition, on the basis of the EC treaty.

Attempts to define public service posts must follow EC case law and are subject to judgments by the European Court of Justice. That has given rise to a number of difficulties. As a matter of UK law, EU nationals can be admitted to civil service posts, but they cannot be admitted to posts that the ECJ regards as employment in the public service. The effect is that it is a criminal offence to employ, even by mistake, a non-Irish EEA national in a public service reserved post, or to employ any alien in any civil service post, apart from the tiny number of certificated exceptions.

Mr. Paul Goodman (Wycombe) (Con): When the hon. Gentleman first introduced the Bill, he said that, although 75 per cent. of civil service posts in the UK were available to the people he described, the remaining 2 per cent.—according to Hansard—requiring the special allegiance of public service posts were entirely reserved for UK nationals. I take it that that was a misprint, and that he meant to say 25 per cent. Can he explain why he wants his Bill to open up 90 per cent. of all posts to selection on merit, rather than the present level of 75 per cent?

Mr. Dismore: I will come to that in a moment when I make the argument; at the moment I am setting out the legal position. Hansard does seem to have made a mistake, because at present 25 per cent. of posts are reserved, whereas my Bill would allow the Government to reserve only the 10 per cent. of posts that need to be reserved for operational and security reasons. I will come to the detailed argument later.

As I was saying, the net effect of the present law is that it is a criminal offence, even if it is by mistake, to employ a non-Irish EEA national in a public service reserved
 
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post, or to employ any alien in any civil service post at all, apart from the certificated exceptions. Although it is legal, under the freedom of movement provisions, to employ in a non-reserved post the alien spouse of an EEA national living in the United Kingdom, it remains an offence to employ the alien spouse of a UK national—and with forthcoming enlargement, the anomalies are not likely to get any fewer.

This all sounds very legalistic and technical, but the anomalies can best be illustrated by example. As I have said, the Bill does not change the rules on asylum and immigration in any way. In my constituency, as in many others, we now have long-standing communities from all over the world—from Iran and Iraq, for example—mostly comprising highly skilled professionals, often senior public servants in their home countries, who fled persecution by those dictatorships many years ago. They—and their children, who may know no other country—are entirely barred.

In Hendon we have large Israeli, Chinese and Japanese communities, and also UK citizens married to people of those nationalities. Assuming that they retained their own citizenship, those people would be barred from, for example, jobs in the Department of Trade and Industry, and therefore could not promote British trade overseas. The anomaly is that if their spouses were French rather than British, they would not be barred from working for the DTI. That is discriminatory against the spouses of UK nationals as opposed to those of other European Union nationals—an appalling anomaly.

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