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The current Bill is a somewhat negative interpretation of the purpose of the Act, which I suggest could be looked on in a much more positive light. It should be seen not as a vehicle to block non-UK nationals from gaining employment but as a mechanism that allows the employment of such individuals. It is a tool whose use is not discouraged, nor is the number of certificates that can be issued across the civil service limited. It is driven by need, and it does not appear that Departments are requesting a vast number of certificates. That suggests that they are not using the Act simply because they do not have an overwhelming need to do so, as they can currently recruit successfully.

Rather than argue that the civil service is bound by an Act that says, “You cannot be employed because you do not fit into nationality requirements”, we should be far more positive and say, “We have an Act that says we can consider employing you, and where the circumstances are such that we need to do so, we will be very happy to.”

To end my comments on aliens certificates on a positive note, I am pleased to say that the Cabinet Office has informed me that in the light of the Bill, it is looking to assist the users of the nationality rules by considering whether their drafting and presentation could be different. Perhaps the language could be updated or the presentation modernised, and they need to be user-friendly. Their complexity is an issue to consider.

I want to raise a couple more points on which we need to reflect and ask questions. I should like to address them also in Committee. One might argue that what we do with employment in our civil service is for us to determine in the best interests of the UK, but should we not also consider reciprocity? Are our rules that different from those of other nations? Should they be? The United States is a large user of aliens certificates. However, it seems that it would be no easier for a UK national to enter the US civil service than for a US citizen to enter ours. If individuals are not citizens of the United States, they cannot be considered for most positions in the federal Government through the standard process, as failure to provide a social security number when requested will result in the application not being processed. Some agencies can and sometimes do hire non-citizens through special hiring procedures, but it is up to the relevant individuals to contact the agencies directly to ascertain whether they are eligible for any available positions, and to find out how to apply.

Let us consider other countries from which nationals have joined our civil service under aliens certificates. In Thailand, non-citizens may apply for Government jobs
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only with the permission of the relevant Cabinet Minister. Of the larger Commonwealth countries, Canada appears to determine any nationality criteria on a job-by-job or organisation basis. Job adverts state either, “open to all” who have legal status to work in Canada, or a preference for the job to be given to a Canadian citizen. In Australia, there is a general expectation that a person who is to be engaged as an Australian public service employee will be an Australian citizen, although non-citizens can be engaged in certain circumstances.

In Europe, some nations are more open than others in their recruitment. For example, in the Netherlands and Finland, civil service posts are open to all European economic area nationals and beyond, with the exception of reserved posts. Approximately 10 per cent. are reserved in the Netherlands—more than in the UK, where 5 per cent. are reserved.

I have spoken about reserved posts—those that are reserved for UK nationals, on the ground only that special allegiance to the Crown is needed. Under the Bill, the current situation would continue—that is a merit of the measure. Some posts would remain automatically reserved, while the responsible Minister could make others reserved. However, would there be an effect on non-reserved posts and the administration in relation to recruitment?

In the appointment process in the civil service, candidates are subject to two procedures: character checks in relation to recruitment and, when appropriate, the Government’s system of security vetting. Character checks are used to determine whether candidates are likely to give satisfactory service and whether anything in their recent past is likely to bring discredit on the Department, agency or the civil service in general.

Let me deal with some of the wider practical issues that might arise from the Bill, and why I believe it merits further discussion in Committee. We must, of course, address national security. In particular, we should study carefully the range of issues around the checks that need to be carried out on those who apply for civil service or military employment, outside the context of reserved posts. They include the need for employing Departments to ensure that applicants are who they say they are, that they can check the applicant’s employment history, nationality, immigration status and criminal record, and that, when the risk justifies it, they can carry out other checks concerning the applicant’s financial position, integrity and trustworthiness.

The House does not need me to dwell on the reasons for the necessity for such checks—I suspect that hon. Members do not want me to do that, either. We are only too well aware that the threats to our security have grown in recent years. However, I emphasise that it is a vital responsibility of Government to do all they can to protect the assets of our nation and its people from any threats, by an informed assessment of the risks and by maintaining a proportionate range of measures to guard against them.

Protection against any possible insider threat is a central element of these measures. Under the Cabinet Office’s new security policy framework, it is mandatory for all Departments and Government agencies to apply the requirements of Her Majesty’s Government’s baseline personnel security standard to all recruits. That covers
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the verification of identity, nationality, employment history and unspent criminal records. Details are available in the Library, as hon. Members know.

When a lack of UK residence makes it impossible to carry out meaningful checks in the UK, prospective employees are required to provide official and verifiable overseas police certificates obtained from the country or countries of residence, when those are available. Prospective employees should provide a reasonable account of any significant periods—six months or more in the past three years—of time spent abroad. However, the weight that can be attached to such evidence, when it exists, will vary from country to country.

When a recruit needs access to sensitive material or assets, further checks need to be carried out under the process known as national security vetting. Vetting for a particular post may be required for different reasons: the threats from terrorism and espionage; the consequences of compromise of sensitive information and other assets; information sharing across Government; and a wide range of agreements and security protocols with international partners.

National security vetting provides an assurance framework for Departments sharing information or allowing other access to their assets to employees in other Departments and agencies. Approximately 250,000 people are vetted or re-vetted on review each year across the Government, the defence industry, other Government contracts and the security regulated sectors, including transport and civil nuclear security. A wide range of international agreements and security protocols require the UK to apply appropriate personnel security controls, including vetting in certain circumstances. An effective vetting system therefore provides an essential level of assurance, not only for the confidentiality and integrity of our own assets, but for the conduct of business with our close allies.

A question that is often asked is whether the application of the nationality rules discriminates not only against individuals whose nationality falls outside the eligible nations but against those UK nationals whose spouses do not have the same rights as the spouses of other EEA nationals who are living and working in the UK. That is a reasonable question. The application of the civil service nationality rules is not discriminatory in law. Section 41 of the Race Relations Act 1976 provides that it is not unlawful to discriminate on specified grounds in pursuance of enactments, Orders in Council or instruments made under such enactments, or in order to comply with conditions or requirements imposed by such enactments.

Section 75(5) of the Race Relations Act 1976 provides that the Act does not invalidate rules restricting employment in the service of the Crown or by any public body prescribed for the purposes of section 75(5) by regulations made by the Minister for the Civil Service, to persons of particular birth, nationality, descent or residence. Further, section 35 of the Race Relations Act 1976 (Amendment) Regulations 2003 amended the 1976 Act so that it is not unlawful to discriminate against another on the basis of nationality, place of residence or the length of time of residence or presence in or out of the UK if the act is done in pursuance of any enactment, Order in Council or instrument made by a Minister under such an enactment, or in order to comply with a requirement, condition or arrangement imposed by a Minister under such an
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enactment. The cumulative effect is that, under UK law, it is not unlawful to discriminate on the ground of nationality, where to do so is to comply with obligations pursuant to primary legislation.

Concern has been expressed, however, that a Department might find itself open to a claim of discrimination if it determined that an individual could not be employed on the ground that they were unlikely to be able to satisfy a security check. Recently, an employment tribunal and an employment appeal tribunal found that a decision not to consider employing an Indian national on the ground that he was unlikely to get a work permit constituted indirect discrimination. That case involved a private law firm, not the civil service, but I understand that the precedent would also apply to the civil service. It is not inconceivable that, if a Department or agency rejected an application on the ground that completing a security check was either unlikely to be satisfactory or impossible, that precedent might well apply. Further, if a non-UK national were to be employed, having been subjected to a less stringent check than a UK national, might the UK national have grounds for complaint?

These issues merit further reflection, which is why I suggest that the Bill go forward for consideration in Committee. I have come to these matters only recently, but I appreciate that the Bill has tremendous merit. However, there are issues that the Government would like to explore further, and we are therefore unable to support it today. I would like to take some time to reflect on those issues with my colleagues, and it would therefore be helpful if the Bill were considered in Committee so that they could be discussed.

The Bill has been subject to consultation with Her Majesty the Queen, as it would have two identifiable impacts on the Crown. As the House has been informed, Her Majesty has asked the House to be acquainted that, having been informed of the purport of the Bill, she has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

1.9 pm

Mr. Christopher Chope (Christchurch) (Con): The Minister spent some 51 minutes setting out her reservations about the Bill. Given that it has such a historical background and has been considered iteratively over many weeks, months and years, it comes as a bit of a surprise to find that the Minister—who is at this moment talking to the Bill’s promoter—or her predecessor did not spend more time talking to the promoter to find a form of words more acceptable to the Government.

As the hon. Member for Hendon (Mr. Dismore) said, this was originally a Government hand-out Bill, but the Government have had second thoughts, probably because some focus group told them that extending employment to non-British nationals in the present economic crisis, brought about by the Government, would not sound very good. That is probably why the Minister is now pouring cold water on the Bill, but she identified so many shortcomings that it is hard to understand how the Government would change their approach if the Bill went into Committee.

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As the hon. Member for Hendon knows, I have had reservations about this and previous Bills under the same broad title that were debated in previous Sessions. My concerns are different from those articulated by the Minister. My current concern is that she, having poured enormous buckets of cold water on the Bill, now says that it is worth expending a lot more parliamentary time on further consideration in Committee.

The Minister made a good point about recruitment, which I have also made on previous occasions—namely, whether we really need to open up the civil service to a wider group of people who are not currently eligible to join its ranks. I must say that 487,000 full-time equivalents in the civil service is rather too many. The Minister says with some pride that it is the lowest it has been since 1999, but I would like to see the number reduced to the levels under the previous Conservative Government, if not further reduced. She is on to a good point there. She made some other points about fairness, particularly when some 10 per cent. of posts are reserved in the Netherlands, whereas they have already been reduced to 5 per cent. here.

I shall not speak at length, but I would like to put my reservations—not necessarily the same reservations that the Minister articulated—on the record. I congratulate the hon. Lady on learning the skill of articulating reservations at great length, albeit that she read them from her brief. We welcome her as a new recruit to the Government Front Bench on this subject. Perhaps next time she will be able to articulate at similar length without having to refer to any notes.

1.13 pm

Mr. Dismore: I have nothing to add other than to say that everyone agrees that there is a serious anomaly in the construction of our present law, so something needs to be done about it. I hope that the Bill will now receive its Second Reading.

Question put, That the Bill be now read a Second time.

The House proceeded to a Division.

Mr. Deputy Speaker (Sir Michael Lord): I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.

The House having divided: Ayes 29, Noes 2.
Division No. 148]
[1.14 pm


Austin, John
Bottomley, Peter
Brown, Lyn
Burt, Alistair
Caton, Mr. Martin
Clark, Paul
Corbyn, Jeremy
Dunne, Mr. Philip
Efford, Clive
Gerrard, Mr. Neil
Goodman, Helen
Heath, Mr. David
Hill, rh Keith
Hurd, Mr. Nick
Jones, Helen
Keen, Ann
Lammy, rh Mr. David
Meale, Mr. Alan
Newmark, Mr. Brooks
Prescott, rh Mr. John
Rammell, Bill
Rifkind, rh Sir Malcolm
Ruddock, Joan
Smith, Angela E. (Basildon)
Spellar, rh Mr. John
Sutcliffe, Mr. Gerry
Thornberry, Emily
Timms, rh Mr. Stephen
Vaizey, Mr. Edward
Tellers for the Ayes:

Mr. Andrew Dismore and
Mark Tami


Harper, Mr. Mark
Heathcoat-Amory, rh Mr. David
Tellers for the Noes:

Mr. Christopher Chope and
Philip Davies
The Deputy Speaker declared that the Question was not decided because fewer than 40 Members had participated in the Division (Standing Order No. 41).

Broadcasting (Public Service Content) Bill

Second Reading

1.30 pm

Mr. Christopher Chope (Christchurch) (Con): I beg to move, That the Bill be now read a Second time.

This Bill is, in a sense, a sequel to the Bill that I presented last year on television licence fee abolition. It builds on some of the comments made during debate on that Bill, and approaches the issue from a slightly different direction. The argument is that if we are to have a licence fee, income from it should be expended solely in support of public service content. Ed Richards, chief executive of Ofcom, was guest speaker at a breakfast that I was privileged to attend earlier this year that discussed Ofcom’s review of public service broadcasting and content. I asked him what part of the BBC output, funded by the licence fee, was not public service content. He assured me that the definitions of the genre of public service content are so wide and all-embracing that 100 per cent. of the output of the BBC is public service content. I do not think that that accords with common sense or with the views of most people.

I shall not get involved in lots of examples, referring to Jonathan Ross and Russell Brand, but I shall make the point briefly by referring to some programmes on BBC 3. In the last few weeks, I have been confined to barracks by a health condition, and I was able to note how various programmes on BBC3 were described by the BBC itself. I did not waste time watching these programmes, but one programme caught my attention—“Kirsten’s Topless Ambition”, which was produced by the BBC, funded by taxpayers’ money and, according to the chief executive of Ofcom, is “public service content”. The BBC describes the programme on its website as

It adds that the programme

In other words, it contains smut. Why should that programme be funded out of public money raised by a poll tax—that is effectively what the licence fee is? I understand that BBC3 has very low viewing figures, and it is obviously trawling desperately to try to attract new viewers.

Another programme that caught my attention on BBC 3 was “Horne and Corden”. The description of it read:

Philip Davies (Shipley) (Con): Does my hon. Friend agree that when the BBC is threatened with a lower increase in its funding than it was hoping for, which it deems a cut, it always suggests that it will need to cut important things such as news coverage and current affairs, but all it need do is cut out that kind of garbage on BBC 3 and stick to what most people would consider to be core public service content?

Mr. Chope: I agree absolutely. Indeed, that is what this Bill is about. It seeks to define public service content for the purposes of public service broadcasting. Clause 1(2) proposes that public service content should be

which I think has a lot of public support. Why should we fund foreign-produced TV programmes and broadcast programmes from scarce public resources? Public service content would also have to satisfy one or more of the following criteria.

The first criterion would be that it should comprise

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