House of Commons
Friday 29 June 2007
The House met at half-past Nine o’clock
Prayers
The First Deputy Chairman of Ways and Means took the Chair as Deputy Speaker, pursuant to the Standing Order.
9.33 am
Mr. Andrew Dismore (Hendon) (Lab): I beg to move, That the House do sit in private.
Question put forthwith, pursuant to Standing Order No. 163 (motions to sit in private):—
The House divided: Ayes 1, Noes 39.
AYES
Robathan, Mr. Andrew
Tellers for the Ayes:
Mr. Andrew Dismore and
Dr. Brian Iddon
NOES
Ainsworth, rh Mr. Bob
Brown, rh Mr. Nicholas
Burnham, rh Andy
Evans, Mr. Nigel
Fitzpatrick, Jim
Gauke, Mr. David
Goggins, Paul
Goodwill, Mr. Robert
Heald, Mr. Oliver
Heath, Mr. David
Heppell, Mr. John
Hollobone, Mr. Philip
Hoon, rh Mr. Geoffrey
Irranca-Davies, Huw
James, Mrs. Siân C.
Knight, rh Mr. Greg
Lammy, Mr. David
Lancaster, Mr. Mark
Lewis, Mr. Ivan
McAvoy, rh Mr. Thomas
McFadden, Mr. Pat
McIsaac, Shona
McLoughlin, rh Mr. Patrick
Merron, Gillian
Mundell, David
Munn, Meg
Norris, Dan
Osborne, Mr. George
Pelling, Mr. Andrew
Prentice, Bridget
Pugh, Dr. John
Randall, Mr. John
Rosindell, Andrew
Roy, Mr. Frank
Shaw, Jonathan
Smith, Angela E. (Basildon)
Sutcliffe, Mr. Gerry
Taylor, Ms Dari
Wright, Mr. Iain
Tellers for the Noes:
Andrew Miller and
Martin Linton
Question accordingly negatived.
Orders of the Day
Crown Employment (Nationality) Bill
Order for Second Reading read.—[Queen’s Consent, on behalf of the Crown, signified.]
9.46 am
Mr. Andrew Dismore (Hendon) (Lab): I beg to move, That the Bill be now read a Second time.
This is my fifth attempt to get this Bill through Parliament. I managed to get as far as Report stage a couple of years ago, but this time I hope to break that record and get to Third Reading—if not all the way through. I am pleased that my right hon. Friend the Member for Ashfield (Mr. Hoon), the Chief Whip, was here to give the Queen’s consent and I congratulate him on his appointment. We only knew we had Queen’s consent at two minutes past 5 last night. I do not know whether that was due to difficulties in the Department or problems at the palace. I presented the Bill on 18 December and named today’s Second Reading date well over six months ago. I wrote to the Department on 22 March asking it to get Queen’s consent. It wrote on 24 May and Queen’s consent came though at two minutes past 5 last night. We might have had a constitutional problem if the consent had not been given, but all’s well that ends well and I am pleased to say that we can proceed with the Bill.
I have been persistent because the real problems that the Bill seeks to address remain. The purpose of the Bill is to remove the existing restrictions placed on the employment of non-UK nationals in civil capacities under the Crown. In place of the current system, the Bill would open up to applicants of any nationality all civil employment under the Crown, apart from such positions as would be rightly restricted to UK nationals—about 5 per cent. of the total—under rules made by the Minister responsible for the Department concerned. Before I talk about the detail, let me make it completely clear that the Bill does not deal with asylum, immigration, work permits or anything like that. It does not affect the requirement for non-UK nationals to get leave to remain and permission to work in the UK.
Mr. Greg Knight (East Yorkshire) (Con): The hon. Gentleman said that if the Bill became law, the number of posts reserved for UK nationals would be 5 per cent., but, if my memory is correct, the last time he addressed the House on this issue he said that the figure would be 10 per cent. Will he clarify which figure is correct?
Mr. Dismore: I am happy to do that. The right hon. Gentleman is absolutely right. The figure was previously thought to be 10 per cent., but as I describe the legislative history of the problem, he will see why the Government now consider the figure to be around 5 per cent.
The rules restricting the employment of foreign nationals by the Crown have their roots in legislation from more than 200 years ago. The Act of Settlement of 1700 provides that no person born out of the kingdoms of England, Scotland, or Ireland, or “the
dominions thereunto belonging” should be capable of enjoying any office or place of trust, either civil or military. Over the years, that prohibition has been amended and does not apply to Commonwealth citizens, citizens of the Irish Republic, 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 a rather archaic term, but is defined in section 51(4) of the British Nationality Act 1981 as a person who is neither a Commonwealth citizen, nor a British protected person, nor a citizen of the Republic of Ireland.
Mr. Oliver Heald (North-East Hertfordshire) (Con): The hon. Gentleman will know that I introduced a Bill in 2004 with similar provisions to those in his, albeit in the context of a civil service Bill that would have defined a civil servant and set out the way in which the code would work on a proper statutory basis. Why has he introduced such a sparse Bill, rather than going for a more comprehensive measure, given that he says that what a civil servant is must be pretty crucial to the whole process?
Mr. Dismore: I recall the hon. Gentleman’s Bill and that we were boxing and coxing on much the same day. A private Member’s Bill should be short and relatively uncontroversial if it is to have any prospect of making progress. I think that his civil service Bill would have given effect to the recommendations of the Public Administration Committee, but a private Member’s Bill of such magnitude had little prospect of success. However, if the hon. Gentleman is still of the same view, my Bill, which is shorter and deals with a distinctive aspect of the issue, might have a little more prospect of success.
Mr. Heald: If the proof of the pudding is in the eating, perhaps, given that this is the hon. Gentleman’s fifth go, he is not correct.
Mr. Dismore: As the hon. Gentleman will be aware, I have never come high on the ballot. The Bill has appeared in various forms and has morphed from a ten-minute Bill to a Bill presented and back again. However, it has never had any priority. I am pleased to be in pole position on a Friday, for once, because that is a record for the Bill. Let us see how we get on.
During the second world war, defence regulations permitted the temporary employment of aliens if no suitable British subjects were available. Those provisions were replaced by the Aliens’ Employment Act 1955, which relaxed the prohibitions so that aliens could be employed if they were either appointed in a country outside the UK, the Channel Islands and the Isle of Man in a capacity appearing to a Minister to be appropriate for aliens, or employed in accordance with a certificate issued by a Minister with the consent of the Minister for the civil service. For a certificate to be issued, either 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. Certificates last for five years and must then be
renewed. In 2006-07, only 66 people were employed under those certificates, 37 of whom were in the Ministry of Defence. That compares with 67 in 2005-06 and 57 in 2003-04. The number is thus pretty static and well below 100.
The European Communities (Employment in the Civil Service) Order 1991 amended the 1955 Act to allow nationals of member states of the European Community, and their spouses and certain children, to take up civil employment under the Crown, except for “public service” posts within the meaning of the EC treaty. The rights of nationals of member states of the EC 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 in 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 EC nationals. An amendment to the civil service management code was made to restrict Commonwealth and Irish nationals from being employed in posts that were reserved for UK nationals.
The most recent change was the European Communities (Employment in the Civil Service) Order 2007. That was in large part to give effect to the St. Andrews agreement of October 2006. The Northern Ireland civil service was disproportionately affected by the prohibition on Irish nationals applying for reserved posts, which, in the Province, amounted to a quarter of the civil service. In annexe B of the agreement, there was a commitment to:
“bring forward separate legislation before the end of 2006 to reform entry requirements to ensure access for EU nationals to posts in the Civil Service.”
As we know, that took until 2007, when the order amended the Aliens’ Employment Act to define more clearly and restrictively the categories of posts that could be reserved and reduced them to such areas as security and intelligence, defence, diplomatic and Foreign and Commonwealth Office posts, and border control and immigration.
The order opened up about a further 70,000 posts to Commonwealth, Irish and EEA nationals—in addition to UK nationals, of course—through the reduction in the number of reserved posts to about 5 per cent., or some 27,000 jobs altogether. I think that that is the detailed answer to the question asked by the right hon. Member for East Yorkshire (Mr. Knight). However, the same basic rules apply. The order has no effect on Commonwealth, Irish and EEA nationals in relation to “public service” reserved posts, although that is probably quite right given that we have reduced the number of such posts to a minimum. However, more importantly, there are restrictions on aliens taking any post in the absence of a certificate under the 1955 Act. There are restrictions on an alien spouse of a UK national, who remains ineligible for appointment to the civil service, but not the alien spouse of an EEA national.
The effect of the existing rules is that foreign nationals may be employed abroad in any civil post under the Crown, including in the diplomatic service, if a Minister considers that appropriate. However, when we consider civil employment under the Crown in the UK, Commonwealth citizens, British protected
persons and nationals of member states of the European economic area can be employed in posts that are not public service reserved ones, while nationals of all other countries may be employed in UK non-reserved posts only if one of the very rarely issued exemption certificates is in force.
Some 95 per cent. of civil service posts in the UK are thus available to Commonwealth, Irish or EEA nationals. The remaining 5 per cent. of posts that require the special allegiance of public service are entirely reserved for UK nationals, yet other nationals are pretty well entirely excluded from everything, even if there is no good operational reason for doing that. Only posts that are operationally necessary are now reserved under the definition based on the EC treaty.
Attempts to define public service posts must follow EC case law and are subject to judgments of the European Court of Justice. As a matter of UK law, EU nationals can now be admitted to civil service posts, but they cannot be admitted to ones that the European Court regards as
“employment in the public service”.
Although the European Court interprets employment in the public service narrowly, it has nevertheless taken the view that officials involved in the collection of taxes, for example, are employed in the public service. As a result, UK law stated that an EU national could not generally be employed in Revenue and Customs because such a post constituted
“employment in the public service”
within the meaning of article 39(4) of the EC treaty. The exception from the 1919 Act thus did not apply and a criminal offence was committed if such a person was so employed. However, such people are now generally permitted to be employed in Revenue and Customs because of the effect of the 2007 order.
Let me try to bring all this complicated law together and summarise it. The net effect is that it is a criminal offence, even if it is done by mistake, to employ an EEA national in a “public service” reserved post. It is also a criminal offence to employ any alien in any civil service post at all, apart from when one of the tiny number of certificated exceptions is in place. While, under freedom of movement provisions, it is legal to employ in a non-reserved post the alien spouse of an EEA national living in the UK, it remains a criminal offence, rather bizarrely, to employ the alien spouse of a UK national without an exemption certificate. While this all sounds very legalistic and technical, I believe the anomalies can best be illustrated by example.
As I have said, the Bill would not change the rules on asylum and immigration or work permits in any way. My constituency, like many others, has long-standing communities from such places as Iran and Iraq. They mostly comprise highly skilled professionals, many of whom were senior public servants in their home countries before fleeing persecution by those dictatorships as refugees many years ago. If they retain their nationality, they and their children, who might know no other country than the UK, are entirely barred from Government posts. They have a lot to offer, and experience of working in our civil service would stand them and their home countries in good stead if democracy returned to their home countries and they ultimately wanted to go back to contribute to them.
Hendon has large Israeli, Chinese and Japanese communities. More recently, communities from Afghanistan and Somalia have been established. UK citizens have married people of those nationalities. If such married Israeli, Chinese and Japanese people retained their own citizenship, they would be barred from jobs in the Department of Trade and Industry, or whatever it is now called—the Department for Business, Enterprise and Regulatory Reform—in which their language skills and knowledge of their home countries would be invaluable for promoting UK exports, for example. However, if their spouses were French, not British, they would not be barred from such a post.
Mr. Heald: As the hon. Gentleman knows, the late Eric Forth was not a fan of the Bill. One of his concerns about it was that Crown employment should be for those who are loyal to the Crown. It can be argued that UK or Commonwealth nationals owe that allegiance, and in the case of the EU we have pooled our sovereignty. However, for nationals outside those three categories, the situation is not quite the same. What can the hon. Gentleman say on the issue of ensuring that public servants in the new category that he wants to create have loyalty to the Crown?
Mr. Dismore: The hon. Gentleman makes an important point, but it is important to recognise that many jobs in the civil service are pretty mundane. We are not talking about the very small number of important jobs in which that is a crucial concern. We are not talking about the 5 per cent. of jobs that should, for good reason, be reserved for UK nationals alone, and from which EU nationals, for example, would be excluded. One has to consider the civil service in the round. We should bear in mind the hundreds of thousands of people who work for it and the different forms that that work takes. The issue is probably less important in relation to those jobs. I am sure that the hon. Gentleman will concede that the anomaly to which I have just referred is bizarre: a spouse of a French national could work in the civil service under the freedom of movement provisions, yet the spouse of a UK national could not.
Mr. Heald: Yes, absolutely. Another point is that the contract between the employee and the Government would require loyalty to the Crown as one of its conditions, would it not? I believe that the civil service management code would require that. Although the obligation would not come from the person’s nationality, it would be there as a matter of contract.
Mr. Dismore:
The hon. Gentleman is absolutely right. For example, the police service, to which I am sure he is referring, has dealt with that issue. The police service is ahead of the game in that respect, as in so many others. I first raised the nationality anomaly in the context of the police regulations many years ago, and the matter was dealt with in the Police Reform Act 2002. Subject to proper immigration status, competence in English, and with certain reservations for sensitive posts, nationality is not a barrier to joining the police, but of course an oath of office applies. That is probably the answer to the hon. Gentleman’s question. He makes an important point about
contractual obligations. Obligations relating to loyalty would apply to any employer, although I fully accept that employment by the Crown has a slightly different status and is in a slightly different category.
The anomaly is perhaps best illustrated by the case of the notorious Abu Hamza, the fundamentalist. He has UK nationality, at least until the Home Office’s efforts to remove his nationality come to fruition, if indeed they ever do. If he was not in jail, he could in theory be employed in any post in the civil service, including the reserved posts. I doubt that he would want to apply, or that he would stand much chance of getting a job, but in theory, every job in the civil service is open to him. However, an American national who is the widow of a British 9/11 victim would be entirely excluded from Government employment. That sort of anomaly is simply not right, and it cannot be allowed to stand.
In our country, some 780,000 residents of working age are not UK, Commonwealth, or EEA citizens, and are thus excluded from civil service employment entirely. I have the honour to represent a constituency in London, which is a diverse world city, but 330,000 people in London, or 7 per cent. of its working-age population, are entirely excluded, not just from the higher echelons of the civil service, but from even applying for the most junior social security clerk’s job. It is no wonder that we have difficulty filling civil service jobs in the capital when so many of my fellow Londoners are entirely out of the equation. In cities such as London, it is important to have a wide diversity of people working in the jobs through which the civil service comes face to face with members of the public, because those members of the public will be from different ethnic backgrounds. Language skills and knowledge of those backgrounds will be very helpful in dealing with the needs and requests of customers, or whatever they are called in the latest civil service jargon.
My Bill tackles the bizarre and discriminatory anomalies by sweeping away the existing complex, interlocking legislation, and replacing it with a simple amendment to the Act of Settlement, so as not to prohibit the employment of any person in any civil capacity under the Crown. It also empowers Ministers to make rules in respect of nationality requirements for certain categories of posts—that is, posts for which it is clearly necessary, and in the national interest, for the job to be reserved to a UK national. As we discussed earlier, when I started this marathon, it was thought that that was about 10 per cent. of posts. Now it is estimated that only about 5 per cent., or 27,000, civil service posts need be reserved. It is expected that the Bill would open up the remaining 95 per cent. of posts to selection on merit, regardless of the nationality of the applicant, enabling us to build a civil service that reflects the diversity of the society that it serves.
Over the years, support for my proposals has grown. The civil service trade unions have supported it, and the Public Administration Committee said in its report that it was a “much-needed reform”. The Bill has the support of the Commission for Racial Equality and, I think, the official Opposition, who we will hear from soon. I hope that it also has the support of the Liberal
Democrats. I believe that the time has come for progress. I commend the Bill to the House, and I hope that it will receive its Second Reading today.
| Next Section | Index | Home Page |