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Mr. John Bercow (Buckingham) (Con):
I confess that I am rather alarmed by what my hon. Friend has just reported to the House. Neither of us has ever been known for an enthusiasm for matters European, but both of us are committed to the application of the law. Would not such a provision cause the Bill to become incompatible with the European convention on human rights?
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Mr. Chope: I do not know. It might, but quite often when Ministers have signed off Bills, saying that they are compliant with the European convention on human rights, we find out later that they are not or may not be. However, my hon. Friend makes a valid point.
All that we can do at the moment is try to prevent the worst excesses by allowing at least a right of appeal, so that the person may seek an exemption for the situation that I have described, but it is invidious that someone should even be pushed into a position where they have to seek such an exemption, and that it would then be open to the Government to rule them out of order and to effectively terminate their contract of employment.
Mr. Chope: They would. Obviously, if the members of the tribunal were themselves foreign nationals, they could find themselves in that situation. Indeed, there might be a scenario in which the Government knew that a case was being referred to the tribunal, the tribunal's membership had been established, and the Government knewbecause the Government know everything these daysthe nationality not only of members of the tribunal but of their spouses and relatives close and distant. If they did not like a member of that tribunal and wanted to remove them from it by taking away their employment, they might introduce a rule with the effect that from then on, people who were married to anyone who was a North Korean citizen would no longer be eligible to serve as employees in the civil service. As a consequence, the person who would have adjudicated on the tribunal would no longer be able to do so. That is a possible scenario and, knowing the Government, I do not think that it is necessarily too far-fetched, particularly in view of the account given by our erstwhile representative in Tashkent, Craig Murray. We have to be concerned about this issue and the amount of power that clause 2 would give to the Executive, particularly Ministers.
The fifth scenario that I want to share with the House is one in which the applicant for a job is living with a person of an outlawed nationality. What if that person is qualified to become naturalised as a British citizen, but has not yet been able to do so? There will be a time gap. That is a real scenario today, and I am sure I am not the only Member to whose advice centre people have come saying that, while in the process of applying for British naturalisation, they have found that they now cannot acquire it because they must demonstrate that they can pass an English-speaking test. Those new rules were introduced in July. Although there is provision for the Government to allow authenticated persons to certify that someone can speak English, the Government have not yet got around to deciding who they might bealthough there is a rumour that Members of Parliament might be included.
In any event, the process of acquiring naturalisation as a British citizen is now much more long-winded. A constituent of mine came here about 40 years ago, and has been married to a British citizen for about 25 years. She wanted to become a British citizen herself, but her naturalisation papers have been sent back to her because there is no certificate stating that she can speak Englishalthough she has been conversing with her
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English husband for 25 years, and has lived in this country for about 40. The situation is ironic. The test of whether an applicant can speak English is, or used to be, pretty fundamental to whether he can be employed in the civil service, but it would not be enough nowa naturalisation certificate would also be needed.
What would happen in the intervening period? Someone might say, "My partner"or wife, or husband"is desperately trying to obtain naturalisation, but cannot do so, so I am seeking an exemption under the rules." What will that person do if the exemption application is rejected? He or she will have no right of appeal, and I think that that is wrong.
Clause 2 includes the phrase "living with", which is an extremely broad definition. It could apply not just to people living as man and wife or even as civil partners, but could extend to any people sharing a house or flat, if not a bedroom. That throws up all sorts of examples of what could happen. Let us suppose that someone is sharingthis is the case with many young professionals such as civil servants, or aspiring civil servantsa flat in a big city with half a dozen others. According to the very wide definition in clause 2, if one of them were of a nationality verboten by the Government, the others would be disentitled to remain in the civil service, or to join it. I hope that the Minister and the hon. Member for Hendon agree that such scenarios require a remedy.
To sum up, the purpose behind the new clause is to ensure that many more people would be protected from being adversely affected by a Government arbitrarily changing the list of nationalities to be excluded from eligibility to work in the British civil service.
As we know, what might be described colloquially as the pariah nations are always changing. There may be some pretty regular members of that group. In the eyes of many European Union countries, including the UK, Libya has recently left that group. However, it seems that Iran is coming back into the group pretty fast. North Korea is still there. Sudan may be about to enter the group, if it is not already there. I suppose that that depends on how soon the Government of Sudan will be prevented from running rings round western diplomats, as they seem to be doing so successfully at present.
Then we have Zimbabwe, with its erstwhile Commonwealth status. Is it a pariah nation? There is also the perennial Taiwan and China question. The Taiwanese are finding it extremely difficult to find any countries that are prepared to recognise their very existence, notwithstanding the length of time that they have obviously been an independent sovereign nation state.
These are the scenarios in which people might wish to apply for exemption so that they can continue in employment or obtain employment under the Crown. That brings me to subsection (2) of the new clause, which reads:
"In determining an appeal the Tribunal may recommend to a Minister . . . to whom the power has been delegated . . . that an exemption to the rules be made."
The tribunal would not be able to impose its will on a Minister. Some right hon. and hon. Members might say, "Why should the tribunal not be able to impose its will?" I suppose the answer is that one would hope a Minister would, in the spirit of public accountability, accept a recommendation from a tribunal on such a matter. That is why subsection (2) is worded in such an open way. I do not think that any Minister could object to being subject to a recommendation by a tribunal, suggesting that perhaps discretion could have been exercised differently.
"respect to the composition, conduct and operation of the Tribunal."
The tribunal, although standing on its own, would probably best be considered as a body that would come under the auspices of the tribunals and inquiries Acts. It would probably need to comprise more than one person. It may be appropriate to have some expert advisers on hand to assist the tribunal in its deliberations.
The question would arise whether the tribunal should sit in public or in private because of the sensitivity of some of the issues it might be having to consider. There will be issues as to whether it would have to meet immediately because someone has sought to have their exemption upheld or the Government ruling overturned, or whether there would have to be a time lag before that. I hope that any Secretary of State tabling regulations under subsection (3) would ensure that the tribunal met almost immediately. For that reason, it might be an ad hoc, rather than a standing, tribunal. It would meet only on those occasions it was required to do so.
The issue would then arise as to whether the tribunal should listen to people in person or whether the requirement should be that they are represented by lawyers. It would probably be better to have both options available, so that people could make representations themselves or through legal counsel should they so desire. Would money be available for the costs of those who were unsuccessful before the tribunal or for those applicants who were successful? Should legal aid be available to people seeking to bring cases before the tribunal? That is another relevant issue.
We also have to consider whether the tribunal would meet only in the United Kingdomperhaps in London or the other major capitals in the UKor whether it could move to the location overseas where the person appealing was located. The Secretary of State would have to take account of such issues when making the regulations. I am sure that much more detail beyond that would also have to be considered.
I am just thinking aloud about the tribunal's work, but it is clear that that could be contentious territory. That is why subsections (4) and (5) make it clear that the power would have to be subject to regulations that would have to be approved by both Houses of Parliament.
The tribunal appeal system would force Ministers to behave reasonably. They would know that if they did not, their decisions and judgments could be questioned by an independent tribunal. It would also provide people thinking of or already working in the civil service with the confidence that they need not worry or have
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sleepless nights if their son or daughter married, let us say, a North Korean. They would know that that would not jeopardise their career. They would be sure in the knowledge that a reasonable tribunal would say that the ability of someone to serve their nation as a member of Her Majesty's civil service should not be questioned because their son or daughter chose to marry a North Korean.
I have nothing against North Korea. You will know, Mr. Deputy Speaker, that if Members start speaking about a country, it is normally not long before a representative of that country invites them to visit it. I am sure that my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) is not in North Korea, but I am not sure whether there is an all-party North Korean group. If there were, I certainly would have no intention of belonging to it, and I do not aspire to visit the country.
It would be wrong to single out one country, because there are more than 150 members of the United Nations. Those countries move almost overnight from being threats to world peace and security in this country to a more benign status. The Bill's only merit is that it offers flexibility in such a situation. The other side of the coin, however, is that such flexibility should not be exercised to the detriment of people who are engaged in proper employment.
The worst-case scenario would be the Foreign Office wanting to get rid of a British ambassador. It knows that he has a relative who is of a particular nationality and decides to change the rules so that anyone of that nationality or related to them is excluded from being a member of the civil service. By doing that it achieves its objective of removing the person it had set its eyes on. The tribunal process would ensure that such jiggery-pokery by the Foreign Office or any other part of the civil service would be brought to the public's attention. It may have been fanciful to contemplate such scenarios before, but we now have to do that and guard against them.
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