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Crown Employment (Nationality) Bill


These notes refer to the Crown Employment (Nationality) Bill as introduced in the House of Commons on 26 January 2009 [Bill 39]




1.     These Explanatory Notes refer to the Crown Employment (Nationality) Bill as introduced in the House of Commons on 26 January 2009. They were originally prepared by the Cabinet Office with the consent of Mr Dismore in respect of an identical Bill introduced by him in the 2007-08 Session. The Explanatory Notes in respect of this Bill are published with Mr Dismore’s authority in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.


3.     The Bill removes the existing restrictions (under both primary and secondary legislation) placed on the employment of non-UK nationals in civil capacities under the Crown and on the offices they may hold under the Crown.

4.     In place of the current system (described below) the Bill would open up 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 a Minister of the Crown (or by another person or body to whom the power to make such rules has been delegated by a Minister of the Crown).

5.     The Bill does not deal with immigration or work permits and does not affect the requirements for non-UK nationals to obtain leave to remain and to work in the UK before they can take up work.

Bill 39—EN     54/3


6.     The Act of Settlement of 1700 provides, in section 3, 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, under the Crown. This prohibition does not apply to Commonwealth citizens or citizens of the Irish Republic (see section 52(6) of, and Schedule 7 to, the British Nationality Act 1981) or to British protected persons employed in a civil capacity (see section 1(1) of the Aliens’ Employment Act 1955).

7.     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. An alien is now 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.

8.     Under the Aliens’ Employment Act 1955 the prohibitions were relaxed so that aliens could be employed if they were either:

    a)     appointed in a country outside the UK, the Channel Islands and the Isle of Man in a capacity appearing to the Minister to be appropriate for aliens; or

    b)     employed in accordance with a certificate issued by a Minister with the consent of the Minister for the Civil Service (this was originally with the consent of the Treasury but the function was transferred to the Minister for the Civil Service by the Transfer of Functions (Treasury and Minister for the Civil Service) Order 1995 (SI 1995/269)). In this connection 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 5 years and must then be renewed.

9.     A list of the certificates issued under the 1955 Act and a statement of the number of persons employed under the certificates must be laid before Parliament by the Cabinet Office each year. For the year 2002-2003 the number of certificates and persons employed under those certificates was 50.

10.     The European Communities (Employment in the Civil Service) Order 1991 (SI 1991/1221) amended the 1955 Act so as 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 (see Article 48(4) of the EEC Treaty, now Article 39(4) of the EC Treaty, which excludes from the freedom of movement of workers posts in the “public service”).

11.     The rights of nationals of member states of the 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.

12.     In 1996 an amendment to the Civil Service Management Code was made to restrict Commonwealth and Irish nationals (who are not subject to the prohibitions in the Act of Settlement or the 1919 Act) from being employed in posts which were reserved for UK nationals. This put Commonwealth citizens and Irish nationals in the same position as nationals of other member states of the European Economic Area.

13.     The effect of the existing rules, therefore, 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. As regards civil employment, or the holding of office, under the Crown within the UK, Commonwealth Citizens, British protected persons and nationals of member states of the European Economic Area may be employed in posts other than reserved ones. Nationals of other countries may be employed in UK non-reserved posts only if a certificate is in force.


Clause 1: Removal of restrictions as to nationality applying to civil employment or offices under the Crown

14.     Subsection (1) provides that the general prohibition on the employment of certain aliens in section 3 of the Act of Settlement 1700 does not apply to employment, or the holding of office, in a civil capacity under the Crown. As reference is made elsewhere in section 3 of the Act of Settlement 1700 to the Privy Council and Parliament, they are unaffected by the changes made in this Act.

15.      Subsection (2) repeals section 6 of the Aliens Restriction (Amendment) Act 1919 (which, subject to exceptions, prevents the appointment of aliens to posts in the Civil Service).

Clause 2: Power to impose requirements as to nationality in relation to certain Crown appointments

16.     Subsection (1) of clause 2 allows rules to be made reserving specified posts for certain specified nationalities. This would allow certain posts to be reserved for UK nationals where it was thought right that they should be carried out by UK nationals. Any rules made under this power would have to comply with the requirements both of the European Communities and of the European Convention on Human Rights.

17.     Subsections (2) and (3) provide the power to make rules imposing requirements as to the nationality of persons “connected” with the person who is subject to limits imposed by rules made under subsection (1). They include the power for rules to provide that the nationality requirement of the “connected person” should be treated as met if they have or had substantial ties with the United Kingdom. Whether a person can be said to have substantial ties to the United Kingdom will be a question of fact in the circumstances, but may include having a demonstrable connection with the UK by way of family history or a period of residence in the UK. The following are ‘connected persons’ under subsection (3):

    a)     A parent or deceased parent of the person;

    b)     A spouse or civil partner of the person;

    c)     Any person living with the person as if they were a spouse or civil partner;

    d)     The parent of any person who falls within b) or c).

18.     Subsection (4) provides that the rules are to be made by a Minister of the Crown.

19.     Subsection (5) allows the rules to exempt persons who were first employed or held office before a specified date and allows the granting of exemptions to the rules by the appropriate person. Subsection (6) sets out who is “the appropriate person” for the purposes of subsection (5).

20.     Subsection (7) ensures that the provisions in section 75(5)(b) of the Race Relations Act 1976 (c.74) and article 71(5)(b) of the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6)), which permit rules restricting employment in the service of the Crown to persons of, amongst other things, a particular nationality to be publicised and displayed, include the grant (or refusal to grant) exemptions by the appropriate person under subsection (4)(b).

21.      Subsections (8) and (9) provide that any rules made under this clause must be made by statutory instrument pursuant to the negative resolution procedure.

22.     Subsection (10) provides for existing powers to consider nationality as a factor in an individual’s suitability for employment to be retained (whether, for example, that individual’s nationality or the nationality of a person associated with him). This may include powers to undertake security clearance procedures prior to appointment.

Clause 3: Repeals and revocation

23.     This clause brings the Schedule into effect. The Schedule repeals the Aliens’ Employment Act 1955 as there is no need for it (or for the provisions amending it) once section 6 of the 1919 Act has been repealed and the scope of the Act of Settlement has been restricted by the Bill. The European Communities (Employment in the Civil Service) Order 1991 is therefore revoked.


25.     In respect of the 2007-08 Crown Employment Bill the effect was estimated by the Cabinet Office to be broadly neutral. The additional costs arising from fewer job applications being sifted out initially and from the carrying out of security checks on foreign nationals were expected to be balanced by the reduction in administrative time involved in operating the current complex rules.


26.     No Regulatory Impact Assessment was required in respect of the 2007-08 Bill.


27.     The Bill will be brought into force on such day as may be appointed by Her Majesty by Order in Council.


28.     The Bill extends to England and Wales, Scotland and Northern Ireland. Civil servants in the devolved administrations in Wales, Scotland and Northern Ireland are employed (or hold office) under the Crown and so the general nationality restrictions applying to such posts will be lifted, subject to the power to re-impose those restrictions in appropriate cases.

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Prepared: 8 May 2009