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Mr. Chope:
The extension of that argument would be to say that the whole of the employment tribunal process should be curtailed and that all those cases should be dealt with by the human rights court. That
would be a solution, and it might also be cost-effective, in that it would result in far less activity taking place. It would mean that most of the present tribunals—the social security appeals tribunal and all the rest of them—would be put out of business and people would be told to have their grievance dealt with under the human rights legislation.
I do not think that that would be appropriate in the context of where we are at the moment, however. I am proposing a tribunal because that is the system that we have now. I am looking forward to the arrival of a radical Conservative Government, however, and if such a Government wanted to consider a complete root and branch reappraisal of these matters, this question could be included in such a reappraisal. But I would be concerned if this area did not have a tribunal while we still have tribunals for all sorts of other areas in which individuals feel aggrieved about the way in which they have been treated, especially in relation to employment issues.
Philip Davies: I agree with my hon. Friend, but does he acknowledge that such a root and branch reform could involve a future Government scrapping the Human Rights Act altogether? In those circumstances, if there were no tribunal, people would be left with nowhere to go. It is important to embed provisions in this legislation in case that should happen in the future.
Mr. Chope: As always, my hon. Friend makes a good point. Those of us who would like to see the Human Rights Act repealed could find that the argument for repealing it would be undermined by the fact that we had adopted the Act as a way of providing a remedy for people aggrieved under the conditions of clause 2.
I do not think that human rights issues can be satisfied by not having a tribunal. Indeed, the only way I have been able to determine for satisfying them is to ensure that people have a right of redress and a right of review so that their case may be heard again. In that way, we should not have government by ministerial fiat that would affect an individual’s right to engage in employment. Some people might not want to apply for such redress, because they might realise that their CV made them completely inappropriate for the job for which they had been turned down, or because they might not wish to engage in the vetting procedures that might be applied to them.
The existing provisions in clause 2 will result in a lot of hard cases—possibly an enormous number, depending on how the Government interpret and act on those provisions. Even if there are only a few cases, however, I believe that it will be worth while setting up a system that would enable those aggrieved people to have recourse to justice. I therefore have great pleasure in urging the House to give the new clause a Second Reading.
Mr. Andrew Dismore (Hendon) (Lab):
I am rather surprised that we are debating this matter today. Throughout the Bill’s passage, we have tried to engage constructively with those who had concerns about it, and this issue was not raised in Committee. Furthermore, I believe that we have answered the questions that were raised at that time pretty effectively in the next group of amendments. I am therefore left
with the suspicion that this is a tactic to talk the Bill out. The hon. Member for Christchurch (Mr. Chope) and other Conservative Members have blocked the Bill for the past five years. Opposition Front Benchers have supported it in the past, but in the light of the tactics that we have seen their Front Benchers employing today, I doubt that their official position is being defended by those Members.
Greg Clark: I should like to reassure the hon. Gentleman that the Bill has the full support of those on our Front Bench. Indeed, my interventions on my hon. Friend the Member for Christchurch (Mr. Chope) probably caused him some disappointment, because I cannot share the enthusiasm that my hon. Friend the Member for Beaconsfield (Mr. Grieve) had for this proposal. I am largely in agreement about the deficiencies of the new clause, so, in terms of the new clause and the Bill, the hon. Gentleman and I are on the same side.
Mr. Dismore: I hear what the hon. Gentleman says, but those who read the Official Report will form their own views of the conduct of the debate so far.
Throughout the whole process, I have tried to engage constructively with the right hon. Member for East Yorkshire (Mr. Knight) and the hon. Member for Christchurch. I have kept them fully informed of discussions and negotiations between myself and the Government, and given them early notice of any proposed amendments. As I said, I am surprised to have this new clause sprung on me today.
The new clause can be easily and quickly answered. In fact, it can be answered so easily that I am rather surprised that it has been selected for debate. It simply does not match, though I am not criticising—
Mr. Deputy Speaker Order. The hon. Gentleman has expressed a criticism, but he must know that the selection process is beyond reproach. If the new clause has been selected, it is wholly in order to debate it.
Mr. Dismore: I was about to say that I fully accept that. I was merely expressing my surprise that the new clause was selected; of course, I was not criticising the selection process. The reason why I expressed surprise is that the new clause simply does not fit the structure of the Bill. The Bill’s purpose is not to identify a particular group as excluded from employment on account of their nationality—because they happen to be from Somalia, in the example that we have heard. It is not intended to exclude any particular individuals from employment. The Bill relates to posts, not persons. The Bill operates by saying that a particular group of posts—a much smaller group than at present—should be reserved for UK nationals, with the rest of the posts available at large for anyone to apply for. In respect of those posts, no one is excluded on grounds of nationality, though appointment will be subject to the usual interview process that anyone applying for any job typically goes through.
The entire superstructure of the new clause is completely erroneous and misconceived. Nobody would be able to use new clause 1 because nobody would be ineligible in the way it describes. The provision simply does not match clause 2 in any way,
shape or form. If it referred to classes of posts, it might perhaps be relevant, but as the Minister is likely to point out later, the way to challenge that may well be by judicial review of the regulations rather than by individuals pursuing the case. No particular individual will be disadvantaged in the way suggested by the proponents of the new clause.
Foreign nationals feel aggrieved—very aggrieved—by the existing rules. The purpose of clause 2 and the Bill as a whole is to expand those rules to ensure that only jobs that it is absolutely necessary to reserve for UK nationals are so reserved. The Bill will extend, not restrict, the rules so that people with a legitimate desire to work for the civil service, for example, will not be excluded artificially by rules that are simply irrelevant to the particular post in question.
Judging from the debate so far, I suspect that opposition to the Bill, which is exemplified by the attempts of Conservative Members to talk it out today, is based on xenophobia rather than common sense. I have to say that the Bill has been blocked for five consecutive years by the hon. Member for Christchurch and one or two of his hon. Friends—apparently in the face of opposition from their Front Benchers, who clearly have no control over their Back Benchers. So be it. It has been blocked for five years running and it looks as if it will be blocked again today. There is a tendency to quote Arnold Schwarzenegger these days, so I simply say that if the Bill fails today, “I’ll be back”.
Mr. Deputy Speaker: Order. It is always helpful if the hon. Member for Hendon (Mr. Dismore) indicates that he is giving way. Otherwise, if he simply sits down—prematurely, if I may say so, for him—there may be some confusion.
Lembit Öpik: I am surprised, but grateful to the hon. Member for Hendon (Mr. Dismore) for giving way, as I thought that I was about to have to make a speech. I know that the hon. Gentleman believes that we are witnessing a filibuster, but can the new clause not be interpreted as enabling a person who is ineligible to be employed for a particular post to appeal against the block?
Mr. Dismore: Given the way in which it is phrased, it certainly could not. As for why that is the case, the answer is in the earlier comment by the hon. Member for Christchurch: this is a hand-me-down new clause prepared for the late Eric Forth, for an earlier version of the Bill several years ago. The hon. Member for Christchurch simply has not done his homework: he has not read the Bill as it now stands and as my and the Government’s proposed amendments would take it further forward, and has not proposed an amendment that fits the Bill.
Mr. Chope: Although the hon. Gentleman might anticipate the approval of his amendments in the next group, we cannot discuss new clause 1 as if those amendments had already been passed.
Mr. Dismore: But of course I must anticipate that the amendments will have the hon. Gentleman’s support, because they were tabled to answer the criticisms that he made in Committee. Even without those amendments, however, the new clause does not fit the Bill, because the Bill deals with posts, not persons. An abstract unfilled post cannot apply to a tribunal, which is the only way in which the clause could operate. It is all absolute nonsense, and the hon. Gentleman, who is a lawyer, ought to have done his homework properly. If he wants an appeal mechanism, he ought to put forward a new clause or amendment that achieves his desired objective, which this new clause manifestly does not. It simply does not fit the Bill.
Lembit Öpik: Having looked at the new clause, let me say that the decision to select it for debate is beyond reproach. There is a reasonable debate to be had about the case for a tribunal. Apropos of my question to the promoter of the Bill, it seems from his explanation that the new clause is incorrectly worded and therefore does not provide a mechanism for challenging decisions about which positions can be applied for by foreign nationals and which cannot.
I very much enjoyed the 70-minute contribution of the hon. Member for Christchurch (Mr. Chope); my only regret is that it was finite. Nevertheless, he made the case for the principle of a tribunal. Would the hon. Member for Hendon therefore have accepted a clause that introduced a tribunal that really did provide a mechanism for considering whether particular posts should be opened up to foreign nationals?
Mr. Dismore: The real problem is that that is an abstract concept. The only way in which an individual could be affected is through the vetting process. If the hon. Gentleman is suggesting that a tribunal should consider the vetting process—the only means by which an individual would be excluded—he would be on dangerous ground, especially as the hon. Member for Christchurch has an amendment in the next group that would take out the vetting process.
Lembit Öpik: I was not suggesting that, and it would be hard to understand how a tribunal about vetting could operate meaningfully without straying well beyond what any reasonable person would regard as the sharing of confidential information.
Philip Davies: I am puzzled that the hon. Member for Hendon (Mr. Dismore) says that clause 2 applies only to posts, not people. Clause 2 clearly states:
“Rules may be made imposing requirements as to nationality which must be satisfied by a person”.
Nationalities are made up of people, not posts, so the tribunal would be there in case anyone was disadvantaged. Does the hon. Gentleman agree that that is necessary?
Lembit Öpik: There is a slight risk of a semantic debate, which probably goes beyond what is useful for this discussion. I leave it to the hon. Member for Hendon and the Minister to respond to that. I can see the case for some kind of tribunal system or mechanism to re-evaluate whether particular jobs should be open to foreign nationals. This clause does not seem to do that, but I would be interested to hear the official Government position.
The clause is less important than the fundamental purpose of the Bill, which is to provide a more generous opportunity for foreign nationals to operate in a civil capacity under the Crown. Surely that is long overdue. It would be a great shame if we were to embroil ourselves in argument over this clause and then throw the baby out with the bathwater.
1.30 pm
Mr. Burns: Although I welcome the debate, it puts me in something of a quandary. I am usually a strong supporter of my hon. Friend the Member for Christchurch (Mr. Chope), but I fear that in his new clause—with which I have considerable sympathy—he has not shown the robustness that we normally associate with him.
I think it absolutely right for there to be an appeal mechanism. In recent years we have seen too many abuses by Government, too many instances of their running roughshod over people’s civil liberties. I believe that when legislation is as crucial as this and has such a direct impact on the lives of individuals, there should be a right of appeal to redress any wrong decisions that have been made, and in that respect I wholeheartedly support what my hon. Friend seeks to do to improve the Bill.
Lembit Öpik: I am sure the hon. Gentleman will recognise that although that may be the intention, it is not what the new clause would achieve. It refers to
“A person who is ineligible to be employed or hold office”.
In other words, it makes the assumption, as a given, that the person is ineligible. Surely the most generous interpretation of the new clause is that it applies only to a decision on whether foreign nationals should be barred from a particular post.
Mr. Burns: I understand the hon. Gentleman’s point. My point is that I believe in principle that there should be an appeal mechanism. If the new clause is badly drafted and needs to be improved—as I shall explain, I think it is badly drafted in other respects—there should still be time to remedy that deficiency. We should not pass a law that is deficient by reason of the exclusion of what my hon. Friend is trying to do, simply for the sake of passing the law. Too much law has been passed that was bad law from the outset, with the result that we have had to come back to repair the damage.
We should congratulate my hon. Friend on the initiative that he has taken with the aim of improving a Bill, but I fear he has not been robust enough. I agree with my hon. Friend the Member for Tunbridge Wells (Greg Clark) that there are deep flaws in the wording of the new clause. I shall briefly explain my concerns about what my hon. Friend has done, although I do not question his motives. Indeed, I am trying to be helpful to him.
I am very concerned about subsection 2, which I mentioned earlier in an intervention. Although
“the Tribunal may recommend to a Minister...that an exemption to the rules be made”,
nothing in the new clause suggests that the Minister would have to accept that recommendation. I consider that to be a fatal flaw, which could drive a coach and horses through my hon. Friend’s intentions, if I have
understood them correctly. We have seen other examples of Governments ignoring recommendations that have been made in good faith and probably for the right reasons, but have been unpalatable to Ministers. I would have preferred the new clause to place a statutory obligation on a Minister of the Crown to accept what a tribunal determines.
Subsection 3 also causes me grave concern. It states:
“The Secretary of State shall make regulations with respect to the composition, conduct and operation of the Tribunal.”
The element about which I am unhappy is the composition. We have seen circumstances in other areas of government in which boards and bodies have been stacked with, in effect, placemen of the ruling party. Evidence shows that in the late 1990s, national health service trusts and strategic health authorities were packed with Labour placemen. Even the Government accepted that, de facto, by setting up the independent Appointments Commission. I fear that if it is left to a Secretary of State to make the regulations for the tribunal, we may see placemen of the Secretary of State’s party making appointments that are suitable to him, but are not in the best interests of natural justice.
For that reason, I would have preferred the proposed measure to have specified that the independent Appointments Commission, rather than the Secretary of State, should sort out the composition of the tribunal. That would have improved and enhanced the organisation and given it greater transparency and independence, and people would have had more confidence in its decision-making processes.
Philip Davies: I have a great deal of sympathy with my hon. Friend’s point. However, is it not the case that under the new clause as currently worded, the Secretary of State has the freedom to allow things to be done as he wishes?
Mr. Burns: My hon. Friend anticipates my next point, which shows his customary perceptiveness.
Proposed new subsection (4) gives the Secretary of State the power not to
“make regulations under this section unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.”
I congratulate my hon. Friend the Member for Christchurch on stipulating that the mechanism must be employed under the affirmative resolution of both Houses of Parliament. All too often under this Government—and, to be fair, under the Conservative Government—there has been a slip into the habit of introducing all secondary legislation under the negative procedure. As we know, under the negative procedure Parliament has much less ability to monitor and scrutinise the Government’s proposals than under the affirmative procedure. Therefore, the affirmative procedure is a plus.
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