The
Committee consisted of the following
Members:
Chairman:
Mrs.
Janet
Dean
Alexander,
Danny
(Inverness, Nairn, Badenoch and Strathspey)
(LD)
Baldry,
Tony
(Banbury)
(Con)
Bellingham,
Mr. Henry
(North-West Norfolk)
(Con)
Benyon,
Mr. Richard
(Newbury)
(Con)
Blackman,
Liz
(Erewash)
(Lab)
Blackman-Woods,
Dr. Roberta
(City of Durham)
(Lab)
Bryant,
Chris
(Rhondda)
(Lab)
Carswell,
Mr. Douglas
(Harwich)
(Con)
Clwyd,
Ann
(Cynon Valley)
(Lab)
Donohoe,
Mr. Brian H.
(Central Ayrshire)
(Lab)
Ellwood,
Mr. Tobias
(Bournemouth, East)
(Con)
Hemming,
John
(Birmingham, Yardley)
(LD)
Love,
Mr. Andrew
(Edmonton)
(Lab/Co-op)
McFadden,
Mr. Pat
(Parliamentary Secretary, Cabinet
Office)
McCarthy,
Kerry
(Bristol, East)
(Lab)
Michael,
Alun
(Cardiff, South and Penarth)
(Lab/Co-op)
Stuart,
Ms Gisela
(Birmingham, Edgbaston)
(Lab)
Celia
Blacklock, Sara Howe Committee
Clerks
attended the Committee
First
Delegated Legislation
Committee
Monday 19
February
2007
[Mrs.
Dean
in the
Chair]
Draft European Communities (Employment in the Civil Service) Order 2007
4.30
pm
The
Parliamentary Secretary, Cabinet Office (Mr. Pat
McFadden):
I beg to
move,
That the
Committee has considered the draft European Communities (Employment in
the Civil Service) Order
2007.
I welcome you to
the Chair this afternoon, Mrs. Dean, and I hope that we can
proceed in fairly good order in considering this important and slightly
complex measure, a draft of which was laid before the House on 25
January.
It might help
if I set out the background to the complex interplay between the
relevant legislation and our European obligations. The legislation has
a long and complex history: it stems originally from the Actof
Settlement 1700 and was reinforced by the Aliens Restriction
(Amendment) Act 1919, which provides
that
no alien shall be
appointed to any office or place in the Civil Service of the
State.
The British
Nationality Act 1981 defines an alien asa person who is
neither a Commonwealth citizen, a British protected person nor a
citizen of the Republic of
Ireland.
During the
second world war, defence regulations permitted the temporary
employment of aliens if no suitable British subjects were available.
That was replaced by the Aliens Employment Act 1955, which
provides that
an alien
may be employed in any civil capacity under the
Crown,
either to posts
outside the UK or exceptionally in other circumstances under cover of
an aliens certificate signed by the responsible Minister. The
European Communities (Employment in the Civil Service) Order
1991 and the European Economic Area Act 1993 opened up Crown
employment to nationals of the European economic area with the
exception of public service posts, which are defined in article 39(4)
of the EC treaty.
Civil
service posts are of a varied nature and mostof them, such as
those responsible for general administration or service delivery, do
not require a special bond of allegiance to the state and need not be
carried out by a UK national. For the purposes of recruitment and
employment, such posts are known as non-core or non-reserved posts.
According to a survey conducted in 2005, about 82 per cent. of home
civil service posts are designated as non-reserved. In addition to
British nationals, such posts are open to citizens of the Commonwealth
countries and EEA
nationals of other member states. Some family members who are not EEA
nationals might have consequent employment rights, as might others who
are granted an aliens
certificate.
The
circumstances in which a certificate under the Aliens
Employment Act may be granted are strictly defined so that in recent
years the number of aliens employed at any one time has been very
small. For example, in 2005-06, only 67 aliens certificates
were in force throughout the home civil service, many of which were
concerned with the Gurkhas and the proper servicing of that area of
government.
Article 39
of the EC treaty, to which I referred, guarantees to workers from
member states the right to reside and take up employment freely in
other member states. However, article 39(4) provides an exception to
those free movement provisions by enabling each EU member state to
reserve for its own nationals employment in the public service. The
treaty does not define those posts, but the European Court of Justice
didbroadly, they are posts involving direct or indirect
participation in the exercise of powers conferred by public law, and
duties whose purpose is to safeguard the general interests of the state
or other bodies and which, therefore, require special allegiance to the
state.
Currently, about
97,000 public service posts in the home civil service are reserved for
UK nationals, of which about 79,000 are within Her Majestys
Revenue and Customs. Moreover, additional restrictions have been placed
on the nationality of those who can be appointed to public service
posts. For example, until1 June 1996 the posts were also open
to Irish citizens on the grounds that they were not statutorily barred
from employment in any post in the civil service. The rules were
administratively changed on that date to exclude all future new-entrant
Irish nationals from employment in the posts, to ensure that they were
treated in the same way as nationals of any otherEU member
state.
The civil
service nationality rules have been a source of frustration over the
years. They are administratively difficult to apply, and the
Governments long-term aim has been to remove the statutory
restrictions on employing aliens in the civil service and replace them
with a general power to make rules imposing nationality requirements,
which would of course have to be exercised compatibly with EC treaty
obligations and EC law. That can be achieved only through primary
legislation, but previous attempts have met with little success. Given
the difficulties, the Cabinet Office has been considering alternative
legislative vehicles for making the changes.
Section 2(2) of the European
Communities Act 1972 presents an opportunity to make changes to current
legislation that, although not as wide-ranging as those envisaged under
primary legislation such as private Members Bills presented
over the years, would allow Departments and agencies and particularly
HMRC to open up a much larger percentage of posts to non-UK EEA
nationals. That will benefit the UKs civil service, which will
be able to employ the best people on merit, through fair and open
competition and from a wider pool of
talent.
The draft order
was drawn up after an extensive consultation exercise. It deals with
the change in status of certain posts in civil employment under the
Crown,
including in the home civil service and the Northern
Ireland civil service, to make them more accessible
to nationals of EEA countries who are already eligible to apply for
most other posts. I stress that it does not cover immigration or work
permits, and it will not affect the requirement of those non-UK
nationals specified to obtain leave to remain and to work in the UK
before they can take up employment. It will apply to the whole
UK.
Article 2 will
amend the Aliens Employment Act 1955 to provide
decision makers with a more detailed test to apply when determining
which posts should not be open to EEA nationals. As the 1955 Act does
not apply to Northern Ireland, an amendment to the European Communities
(Employment in the Civil Service) Order 1991 is provided in article 3
and will achieve the same effect for Northern
Ireland.
Ms
Gisela Stuart (Birmingham, Edgbaston) (Lab): I would be
happy for my hon. Friend the Minister to write to me if he does not
know the answer to this question. In relation to restricted posts,
there usedto be a problem whereby the definition of British
citizenship was fine for the first generation, but people whose parents
were non-British citizens were excluded. That led to the bizarre
situation in which if somebody had a mother who became a British
citizen, their mother could do the job but they could not as their
mother had been a foreigner. Has there been any change to that
definition?
Mr.
McFadden:
The matter is replete with such anomalies. I
shall either return to my hon. Friends question later in the
debate or, if I do not have the answer, write to
her.
With regard to
Northern Ireland, at a practical level there is a considerable pool of
relatively local but non-UK talent on our doorstep. It is
organisationally undesirable for the Northern Ireland civil service
routinely to have to turn away suitably qualified people on the grounds
of nationality. That is a frequent occurrence, and from the perspective
of efficiency alone the Northern Ireland civil service is keen for a
change to allow it greater flexibility in
recruitment.
I wish to
comment on security, which is important to the civil service. The draft
order will not diminish national security in allowing EEA nationals
into posts that were formerly open only to UK nationals. All persons
taking up employment or holding office in a civil capacity under the
Crown will continue to be subject to the usual important security
checks governing such appointments.
I should also make the point
that nationality requirements are not the same as security
requirements, which can be imposed on any potential recruit
irrespective of nationality. There is an occasional misunderstanding
that security check clearance means that the post must automatically be
in the public service category and hence reserved, but that is not the
case. Security clearance may be required for public service or
non-public service posts. The main purpose of vetting is to provide an
assurance of the reliability and trustworthiness of the
individualsfactors that are not necessarily connected with
their nationality.
I
emphasise, too, that it will remain a matter of policy to restrict
access to certain posts to UK
nationals where that is strictly necessary. The draft order provides
revised criteria for doing so. First, it sets out a more limited number
of categories that might be reserved in the future. They can be
regarded as a subset of the categories that the European Court of
Justice has indicated are likely to be within the public service.
Secondly, a tighter and clearer definition through the order will, we
hope, ensure greater consistency between Departments and agencies.
Thirdly, except in relation to posts in the security and intelligence
services, Ministers must consider the justification for reserving a
particular post. The order does not affect the position that enables
the security and intelligence services to reserve all their posts for
UK nationals.
It has
been necessary, too, to include certain broader categories in the
definition of reserved posts. They are set out in the order as posts
whose functions are concerned with access to intelligence information
received directly or indirectly from the security and intelligence
services or through access to other information that, if disclosed
without authority or otherwise misused, might damage the interests of
national security or might be prejudicial to the interests of the UK or
its citizens.
To
conclude, the order is not being made in response to any new European
legislation or directive. Instead, its purpose is to increase the
efficient running of the civil service by making the criteria for
reservingposts more specific and relevant to the business of
Departments and agencies in response to the evolving civil service
agenda. We believe that the effect of the order will be to maintain the
capacity of Government to reserve those posts that strictly need
reserving, as set out in the criteria, and to allow us to free up for a
greater pool of talent those posts that could benefit in the
future.
4.43
pm
Mr.
Henry Bellingham (North-West Norfolk) (Con): I, too,
welcome you to the Chair, Mrs. Dean. I thank the Minister
for his full, comprehensive and capable explanation of the complex
historyit is indeed complex. We support in principle what the
Government are trying to do. I might have a problem, because I am due
to speak in the next debate and I shall have to rush out of the
Committee if it goes on for more than about 10 minutes, but I have a
few quick questions for the Minister.
Obviously, we support opening up
many more posts to non-UK and EEA citizens and the revised criteria for
restricting access to certain posts to UK nationals. That makes sense.
As far as the civil service in Northern Ireland, the measures in
respect of that part of the civil service and the problems that were
experienced in recruiting suitable people are concerned, I assume that
the Minister was referring to citizens from the Republic of Ireland
who, post-1996, were prevented from joining our civil service on the
same terms as UK nationals. How many Irish nationals were affected by
that over the period of 10 or so years? I do not know whether he has
any statistics on that matter.
The Minister mentioned the
Ankara agreement, which grants rights to Turkish nationals. How many
Turkish nationals are we talking about overall? Are
there many working in our civil service apart from those who are in
locally recruited posts that are attached to our embassy and consulates
in Turkey?
The
explanatory memorandum mentions the problem of recruitment of staff to
reserved posts, which causes difficulty for the efficient running of
the civil service. Will the Minister give us some idea of the extent of
the problem? Are we talking about unfilled posts? Has the problem been
gradually getting worse? Perhaps he will elaborate. He explained the
background to the problem, but he did not tell us how extensive it was.
As things stand, the job market is reasonably vibrant. The more vibrant
it is, the more difficult it will be for the public sector to recruit
able people. If that situation were to turn for the worse, it would be
a great deal easier for the civil service to recruit able people who
are currently going into the private sector. What consultations took
place withthe civil service unions? Was concern expressed, or
were the proposals overwhelmingly endorsed and welcomed?
Finally, I would like to ask a
question on the subject of reserved posts that involve access to
intelligence information or are concerned with border control and
decisions on immigration, which obviously includes the security
services, the Secret Intelligence Service and GCHQ. Of the 5 per cent.
of civil service posts that the Minister says will be reserved for UK
nationals, how many will be in those particularly sensitive
areas?
We support the
proposals, but I hope that the Minister can answer those questions. I
thank him again for his comprehensive explanation of the complex
measure.
4.47
pm
Danny
Alexander (Inverness, Nairn, Badenoch and Strathspey)
(LD): I take this opportunity to welcome you to the Chair,
Mrs. Dean, and to thank the Minister for his eloquent,
detailed presentation of the complicated, long-standing policy
background to the order. I shall do my best to ensure that the hon.
Member for North-West Norfolk is available to go to his next
debate.
I should like
to raise a couple of points. In general terms, we welcome the order. As
a pro-European party, we feel that it makes sense, as the Minister
said, to ensure that the civil service is able to benefit from
competition between the best people for a wide range of posts. The
Minister spelt out in some detail the posts that remained reserved. I
understand that, at the moment, most posts in the civil service fast
stream remain reserved. What will be the position if the order is
introduced?
Like the
hon. Member for North-West Norfolk, I should like to know a bit more
about the problems that have led to the promulgation of the order. I
understand that some of the impetus comes from Her Majestys
Revenue and Customs, as recruitment to posts that deal with collection
and revenue assessment, whichare currently reserved, has been
problematic. What assessment and analysis has been done of the extent
to which the order will help to resolve that problem? HMRC is shedding
substantial numbers of jobs, so it is
reasonable to assume that many posts in revenue and collection
assessment that are unfilled or hard to fill could be filled through
the redeployment of existing staff, who are in posts that HMRC is
abolishing.
Some
services will be centralised as a result of the job cuts. I know, for
example, that significant job reductions are planned in the highlands
and islands, so there will be plenty of well qualified HMRC former
staff around there who could fill posts to which the order might apply.
In that context, the order should in no way stop the Departments to
which it applies from doing all that they can to find the best people
in the UK and to offer them jobs. The issue is not about shifting the
emphasis away from UK nationals.
The group to which I should like
to draw the Committees attention is disabled people. There
are10 million disabled people in the UK. On
average,4.5 per cent. of Departments staff are
disabled, according to the most recent Government figures. However, in
the Departments to which the order might apply most, the Foreign and
Commonwealth Office, Her Majestys Treasury and the Home Office,
the percentage of staff who are disabled is 2.9 per cent.,3.2
per cent. and 2.2 per cent. respectively, so their performance in
employing disabled people is already pretty poor.
I should like the
Ministers assurance that opening up some of those posts to
nationals from other EU countries will not distract from the important
drivenot least through the Disability Discrimination
Act 1995 and the new disability equality dutyto offer full
employment opportunities in the civil service to those millions of
disabled people, many of whom are out of work and want to work. With
his social exclusion hat on, the Minister will be concerned about that,
so I should be grateful for some assurances on that point. With those
few remarks and questions, I look forward to the his
response.
4.51
pm
John
Hemming (Birmingham, Yardley) (LD): I could have dealt
with my point in an intervention, but it comes down to the same
issuenamely, that since the enlargement of the EU, the
expression You cant get a plumber has been
heard less frequently. Paragraph 7.1 of the explanatory memorandum to
the order
says:
This is
causing significant problems for the efficient running of
organisations, in particular in recruiting eligible
staff.
That implies that
You cant get a taxman, but it would be nice to
have some evidence for
that.
4.52
pm
Mr.
McFadden:
Given the spirit in which the questions were
asked, I will endeavour to concentrate on those alone, rather than
going any further.
Let
me start at the end and work backwards. I do not believe that there is
any contradiction between opening up the civil service to a wider group
of talent and managing the efficiency process under way in the civil
service. The hon. Member for Inverness, Nairn, Badenoch and Strathspey
raised the efficiency savings process and its effect. It is an
essential process, but there is no contradiction between that and
opening out recruitment to a wider pool of talent. I stress that there
is certainly no contradiction between the order and the extensive
efforts in the civil service to manage that process well, to do
everything that we can to avoidany compulsory redundancies as
a result, to have an extensive process of retraining and relocation,
depending on the nature of the work, and to help those affected by head
count reductions with job searches in other parts of the civil service.
We are committed to maintaining that process, which has been largely
successful, as evidenced by the fact that althoughthere has
been a net head count reduction of some 45,000 in the civil service in
recent years, fewer than35 compulsory redundancies have been
announced.
The hon.
Gentleman also raised the issue of fast stream. The order concerns only
the eligibility to apply, and fast-stream posts will be considered
against the criteria in the order. The HMRC posts that we have
discussed are almost wholly reserved among junior grades. That prevents
some talented people from progressing in their careers. For example, if
someone enters the HMRC at an administrative level, theymight
be prevented from taking a promotion in the Department for which they
are otherwise fully qualified, as the more senior post is reserved
forUK nationals only. The non-specific nature of the
indicative criteria has required a blanket approach to posts in Customs
and Excise, with the result that that Department alone is responsible
for some 79,000 of the 97,000 posts that are reserved. The issue is
therefore about career progression in those Departments, as well as
recruitment.
The hon. Member for North-West
Norfolk asked how many people from the Irish Republic had been affected
by the change in 1996. I do not have the exact figures available, but
the Northern Ireland civil service very much supports the order before
us today. It believes that it is an inhibition on its capacity to
operate at the highest possible level if it has to turn away talent on
a reasonably regular basis. The order would enable a more rational
approach to be taken. It would, of course, maintain reserved posts for
those areas set out and would also maintain the Secretary of
States capacity to exercise the judgment conferred on him
through the order.
The
hon. Gentleman also asked how many posts would remain reserved in
future. We think that around 5 per cent. will remain reserved, which is
some 27,000 posts. That compares with some 97,000 reserved posts at
present. Obviously that cannot be an exact figure; it is an
estimate.
I hope that
that has been of some help to hon. Members who asked questions. The
Government believe that the order will allow us to keep the security
arrangements that any state would want to keep and to keep reserved
those posts that need to be reserved, but also to open up those posts
that would benefit from being opened up to a wider pool of
talent.
Question put
and agreed
to.
Resolved,
That
the Committee has considered the draft European Communities (Employment
in the Civil Service) Order
2007.
The Committee
rose at three minutes to Five
oclock.