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12.9 pm

Mr. David Heath (Somerton and Frome) (LD): There are certain rites and annual events of this House that mark the passing of the seasons, and one of them is the
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Second Reading of the Crown Employment (Nationality) Bill on behalf of the hon. Member for Hendon (Mr. Dismore). I find it unbelievable that we are still discussing, in this groundhog day way, exactly the same Bill year after year, when it is perfectly obvious that its provisions are sensible. It makes a very minor change to the enactments that affect the civil service, and there is no adequate reason why the Government cannot accept it. They might wish to do so with amendment, but the principle behind it must, I am sure, be agreed on both sides of the House.

I and some other Members from both sides of the House have argued for a long time that we should have a civil service Bill. We have been repeatedly promised such a Bill, but it has never transpired. We have been told that its principal features will be subsumed within the Constitutional Renewal Bill, but we have not seen that yet, of course, and some of us have our doubts as to whether it will actually encompass the provisions of a draft civil service Bill, which we have discussed on previous occasions, which the Public Administration Committee has been involved in, and which so many Members have advocated.

Even in the absence of a more comprehensive piece of legislation, it does not seem to me to be beyond reason for the following absurd anomaly to be addressed. If a citizen of Mozambique—I always seem to use that country as my example in these cases, perhaps because it is the most recent member of the Commonwealth, but also perhaps because it has no historic links with the United Kingdom—can have employment, why cannot someone from Montana? Where is the logic in that anomaly in terms of the proper running of the civil service and the interests of the country? Of course some posts must be restricted, and the hon. Gentleman’s Bill makes provision for that, but if it is right and proper that any citizen of a Commonwealth country or of the European Union, or any spouse of a citizen of the EU, can be employed in the civil service, why not extend that to others who do not come from those countries, but who are well qualified and who could, I am sure, provide the same level of loyalty to the Crown, if not by nationality then by contract? That is the crucial point.

I welcome the Minister to her new post. I hope she will set aside the attitude of her predecessors for seven years, or however long it has been—I am unsure on how many occasions this Bill has been brought forward—and welcome the Bill. Moreover, I hope she will welcome it with a determination to take it forward. If at the end of the day it is better for its provisions to be subsumed within the Constitutional Renewal Bill, and if we have that Bill and it makes progress in this parliamentary Session, so be it, but for heaven’s sake let us get on with this. Let us get rid of these anomalies and make our legislation make sense—and please can we not have to sit through another Friday morning with exactly the same speeches being made on both sides of the House supporting exactly the same measure, because it really is not a sensible use of our time?

12.14 pm

Mr. Nick Hurd (Ruislip-Northwood) (Con): On this groundhog day, may I, too, start by congratulating the new Minister on her appointment? I am sure our future exchanges will be more focused on the role of government in unlocking the potential of the third sector to help
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more people, but today we are rightly focused on what is a stubborn Bill, and I congratulate the hon. Member for Hendon (Mr. Dismore), not least for his tenacity. I have always been grateful to him because he showed relative benevolence to my private Member’s Bill, which became the Sustainable Communities Act 2007, although I suspect that that generosity had something to do with the fact that his own Bill was next on the Order Paper. I have always been grateful that he kept his assassin’s dagger in its sheath that day and I wish him well with this Bill. I congratulate him on the speech that he delivered, but there is no surprise in that because he has delivered it enough times. I suspect that he could recite it in his sleep, and the hon. Member for Somerton and Frome (Mr. Heath) could probably do the same. We believe that the Bill deserves to receive a Second Reading.

Like the hon. Member for Somerton and Frome, who speaks for the Liberals, Conservative Members regret that today we are looking at just one small corner of the painting and not at the wider canvas of the role and status of the civil service. We have consistently stated our view that this reform should be placed in the larger context of a civil service Act that defines the role of the civil servant in law. That has been promised since 1997 and is yet to be delivered. At a time when public confidence in the way in which we are governed is at such a low ebb, the case for such an Act grows even stronger. We now look to the Constitutional Renewal Bill to deliver it and we urge the Government to get on with it. I recognise the argument that private Members’ Bills should be focused on relatively modest and concise objectives, and we accept that the principle of this Bill is right.

The law on who is eligible to work in the civil service is rooted in a different age and it is complex, it has been amended on many occasions and, unsurprisingly, it is a mess. It throws up plenty of anomalies, and those were described well by the hon. Member for Hendon. They must be irritating to work with and the provisions are no longer rooted in any logic. Foreign nationals can be employed by the Crown abroad, if that is considered appropriate, but in the UK non-reserved jobs are limited to Commonwealth citizens, British protected persons and nationals of European Union member states. In 2009, it makes no sense that someone from Nigeria can apply for a job in the civil service here, but someone from the United States cannot do so. In the past, the law might have been justified by concerns about securing allegiance to the Crown, but that justification evaporated with the relaxing of eligibility for members of the EU. In any case, the oath of loyalty to the Crown is now a question of contract, above all, and the Bill does nothing to change the right of Ministers to reserve sensitive posts for UK nationals.

There appears to be an opportunity cost to this muddle, because at a time when we want to be attracting the brightest and best to the civil service and we want our public servants genuinely to reflect modern Britain and its growing ethnic complexity, not least in London—I, too, am a Greater London MP, so I entirely endorse what the hon. Gentleman is saying in this context—it makes no sense to leave a group of people totalling 800,000, according to his numbers, outside the tent. All those people have a legitimate right to be here to make a contribution in appropriate roles. We think they should be given that chance and we are therefore happy for the Bill to be receive a Second Reading.

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12.18 pm

The Minister of State, Cabinet Office (Angela E. Smith): First, I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on his continuing commitment to this Bill; I believe he said that this is his seventh attempt with this particular piece of legislation. I understand that the former Member for Wimbledon, Mr. Casale, also introduced this Bill, so it has a long and dignified history.

As I understand it, the Bill has sought in the past, and continues to seek, to do two things. First, it seeks to remove nationality restrictions applying to employment or the holding of office in a civil capacity under the Crown. Secondly, it seeks to empower a Minister of the Crown to make rules in respect of the nationality requirements of certain categories of posts. In effect then, the Bill would open up Crown employment, including in the civil service, in non-reserved posts to all individuals of any nationality who can live legally in the UK and have entitlement to work here. There would be no bypassing of the UK’s immigration system.

I wish to go into a bit more depth about the Bill, but may I say at the outset that I think it contains considerable merit, although some issues will require further discussion? So although I am unable to give full support to the Bill today, I want it to progress to Committee, because that seems to be the appropriate place to discuss those issues and examine any concerns that may be raised. In the fine traditions of this House, that is the right and proper way to address such concerns. I cannot give it my full support, but it is appropriate that it should go to Committee for further discussion.

I shall set aside the effect of the Bill for the moment and consider the current nationality rules and framework, and who can currently be employed under its remit. Holders of an office in a civil capacity under the Crown include civil servants in Departments, including the devolved Administrations, the judiciary, the security and intelligence services, the royal household and civilian Army personnel. Within those two groups are two types of post—the reserved and the non-reserved. As we have heard from my hon. Friend, reserved posts are those that are seen, owing to their sensitive nature, as requiring special allegiance to the Crown and therefore reserved for UK nationals only.

Some posts are reserved as a matter of course—for example, all posts in the intelligence and security services are reserved, as are those in the diplomatic service and the Foreign and Commonwealth Office, unless in the latter case the Minister decides otherwise. Certain other categories of post are also capable of being reserved for UK nationals, but only if the Minister responsible for the Department or agency considers that to be necessary. Examples of such posts include posts in the defence intelligence staff in the Ministry of Defence or those posts whose functions are concerned with access to intelligence information received directly or indirectly from the security intelligence services; access to other information that, if disclosed without authority or otherwise misused, might damage the interests of national security; or access to other information which, if disclosed without authority or otherwise misused, might be prejudicial to the interests of the UK or the safety of its citizens. Other such posts include those concerned with border control or decisions about immigration.

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If a post does not fall into one of the above categories, it cannot be reserved. This supports the deliberate intention to keep the posts as open as possible and to reserve as few as possible. My hon. Friend asked about some parliamentary questions that he had tabled. I can tell him that some 5 per cent. of posts in the civil service are currently reserved and the rest are available to all other qualifying nationals. Some 27,000 posts are reserved. As I am relatively new to this position, I have not seen the other questions that he mentioned, but I will ensure that he receives answers as soon as possible. He also asked how many alien certificates had been issued in 2008-09. The final figures are being collated, so they are not yet available, but they will be made available to him as soon as that happens. For 2007-08, the figures peaked at 80 through the year, although the final figure was 60. Those figures have not been finally confirmed, but when they have, they will be provided to my hon. Friend. I hope that that is helpful to him.

So which nationalities, under the rules, are eligible for employment in those remaining 95 per cent. of posts and who is precluded? The answer is that the rules do not specifically preclude any nationality from being considered for employment—individuals who apply for posts will be eligible in their own right or, potentially, employable through one of the available exceptions. As of right under the rules, the following countries or associations of countries are eligible for employment: the UK; the Republic of Ireland; the Commonwealth; the European economic area; and Switzerland and Turkey. Also, certain—not all—family members of EEA, Swiss and Turkish nationals are also eligible regardless of their nationality. UK nationals include citizens born in the UK; British citizens born abroad; British Overseas citizens; British Overseas Territories citizens; British Nationals (Overseas) British subjects; and those recognised as British citizens through naturalisation or registration.

The hon. Member for Somerton and Frome (Mr. Heath) asked about Commonwealth citizens. A Commonwealth citizen is any person who has the status of a Commonwealth citizen under the British Nationality Act 1981, and the territories forming part of the Commonwealth are listed as part of that Act. That includes more than 70 countries and territories. His particular question was about what would happen if a country ceased to be a member. The response given by my hon. Friend the Member for Hendon pretty much headed in the right direction. The rules do not affect the rights of those who might be in employment whose countries are then suspended from the Councils of the Commonwealth. When a nation is suspended, its nationals remain in employment if they are already employed or remain eligible for employment. That would change only if the nation concerned was formally excluded by the amendment of the Act. There would have to be a formal exclusion under the legislation; a suspension would not affect eligibility for employment.

Mr. Heath: Do I then understand that were a country to be excluded from the Commonwealth—or to exclude itself by secession—the terms would apply? That was the corollary of what she said, which was that it would not apply under suspension.

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Angela E. Smith: Yes, that is the case. If the legislation changed and that country was no longer a member of the Commonwealth—if it had been formally excluded by amendment of the Act—its nationals would not then be eligible for employment.

The EEA comprises not only the member states of the EU, but, as hon. Members will be aware, the nations of the European Free Trade Association. That means that the Crown can draw on the talents of some 30-plus nations from that group alone. Also included is Switzerland, whose nationals have the same rights as EEA nationals.

That pool of talent is widened further to include Turkish nationals and certain family members of EEA, Swiss and Turkish nationals. Turkish nationals are eligible for Crown employment if they have been lawfully employed in the UK for four years in any job or for three years in the same occupation as the post that they wish to take up under the Crown. The family members of EEA nationals gain their rights in such circumstances as the EEA national has exercised their rights under the treaty establishing the European Community—in particular, the right to freedom of movement. As a result, those family members of EEA nationals, irrespective of their nationality, are eligible to take up employment in the member state where that national is employed.

That means that certain family members of EEA nationals employed in the UK would also be eligible to be employed in the UK and therefore to be employed in non-reserved posts in the civil service, even if they did not as individuals satisfy the civil service nationality rules. That was the point that my hon. Friend the Member for Hendon was making.

The family members concerned are the spouse or civil partner of the EEA national, and the direct descendants of the EEA national or their spouse or civil partner, such as their children and grandchildren. Direct descendants qualify only if they are under the age of 21 or are dependants. Dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner, such as their parents and grandparents, are also included.

Certain family members of Swiss nationals resident in the UK, who are not Swiss and would not otherwise satisfy the rules, have rights to reside and to take up employment in the member state where that national is employed. That means that family members of Swiss nationals employed in the UK would also be eligible to be employed in the UK and therefore to be employed in non-reserved posts in the civil service. My hon. Friend did say that this could get to be rather a technical argument, and I think that we are proving that point.

The family members concerned in this case are the spouse of the Swiss national, the direct descendants of the Swiss national—such as their children and grandchildren, as I have said—who are under the age of 21 or are dependants and their dependent relatives in the ascending line, such as grandparents and parents. In the case of a Swiss national who is a student, rights extend only to the spouse and any dependent children of the Swiss national. Those family members can work in the UK and are eligible for employment in non-reserved posts in the civil service.

Certain family members of Turkish nationals who qualify for employment in the civil service are also eligible for employment in the civil service. Family members of Turkish nationals are eligible for employment
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in non-reserved civil service posts if they have been lawfully resident in the United Kingdom for three years or more.

The family members concerned are Turkish nationals’ spouses and direct descendants of either the Turkish national or the spouse. Those descendants are children—including stepchildren—grandchildren, and great-grandchildren who are under the age of 21 or who are dependants. Also included are direct dependent relatives in the ascending line of a Turkish national or their spouse—that is, their parents, grandparents and great-grandparents.

In order for the family member to be eligible for employment in the civil service, they must have lived in the UK with the qualifying Turkish national. There are also special rules that entitle children of qualifying Turkish nationals to take up jobs in the civil service if they have completed a course of vocational training in the UK. There is no length-of-residence requirement attached to that right. The Turkish national or the other parent of the child must have been legally employed in the United Kingdom for at least three years. After that fairly brief overview, I am sure the House will agree that the framework already allows for recruitment from a wide range of nations. I think it would also agree that there is some complexity in the rules.

It is worth considering where the framework came from, and how we got to this point. The statutory prohibition on the employment of aliens in a civil capacity under the Crown—including, but not only, in the civil service—stems from the Act of Settlement of 1700. That Act provides that


That provision was repealed in 1919—it took a few years—and replaced by the Aliens Restriction (Amendment) Act 1919, which provides that

My hon. Friend rightly feels some frustration at having proposed the measures in his Bill seven times in seven years; he would feel greater frustration if he had been trying to change things from 1700 to 1919.

An alien—I grant that that is not the most attractive of words to use to describe a non-UK national—is defined in the British Nationality Act 1981 as

British nor a

The position with regard to the employment of aliens changed during the second world war. At the time, defence regulations permitted the temporary employment of aliens if no suitable British subjects were available. That situation was altered under the Aliens’ Employment Act 1955, which provided that

either in posts outside the UK—an example would be locally engaged staff—or, exceptionally, in other circumstances under cover of an aliens certificate, signed by the responsible Minister. I shall say a bit more about
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the 1955 Act shortly. Following that Act, the European Communities (Employment in the Civil Service) Order 1991—Statutory Instrument 1991/1221—and the European Economic Area Act 1993 had the effect of opening up Crown employment to nationals of the European economic area, with the exception of “public service” posts, or, as we know them in the UK, reserved posts within the meaning of article 39(4) of the European Community treaty.

That was followed by the European Communities (Employment in the Civil Service) Order 2007, which came into force on 7 March 2007. It amended the 1955 Act and the 1991 order to specify in more detail the definition of reserved posts and to clarify eligibility to take up non-reserved posts in the civil service. The 2007 order sets out categories of posts that are either automatically reserved to UK nationals or can be reserved to UK nationals if the relevant Minister considers it necessary.

The Bill would remove the nationality restrictions by providing that section 3 of the Act of Settlement does not prohibit

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