Standing Committee C
Monday 7 June 2004
[Mr. Roger Gale in the Chair]
4.30 pm
The Chairman: Members of the Committee will know that I have accepted manuscript amendments for debate later this afternoon. That is not a precedent. The reason is straightforward; we have been in recess, and it is wholly reasonable to debate those amendments this afternoon so that delay and extra cost can be avoided. Clause 1
Removal of existing nationality requirements
Question proposed, That the clause stand part of the Bill.
Mr. Andrew Dismore (Hendon) (Lab): Thank you, Mr. Gale. Welcome to the Chair. You may recall that I approached you when I was trying to recruit Conservative Members. You said that you did not serve on Committees, but chaired them. Well, I got you in the end, one way or another.
The clause is the meat of the Bill, the purpose of which is to remove the plethora of anomalies in the law on civil service employment. The clause would remove the existing rules, which clause 2 would replace with more sensible arrangements. The rules restricting the employment of foreign nationals by the Crown have roots that go back more than 200 years. The Act of Settlement of 1700 provides that no person born out of the kingdoms of England, Scotland or Ireland, or the dominions, should be capable of enjoying any office or place of trust under the Crown. That prohibition has been amended over the years, and does not apply to Commonwealth citizens, to citizens of Ireland 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. The term ''alien'' is defined in section 51(4) of the British Nationality Act 1981 as a person who is not a Commonwealth citizen, a British protected person or a citizen of Ireland. During the second world war, defence regulations permitted the temporary employment of aliens if no suitable British subjects were available. That provision was replaced by the Aliens' Employment Act 1955, under which prohibitions were relaxed so that aliens could be employed if they were appointed in a country outside the United Kingdom, the Channel Islands or the Isle of Man in a capacity that appeared to the Minister to be appropriate for aliens, or if they were employed in accordance with the certificate issued by a Minister with the consent of the Minister with responsibility for
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the civil service. There must be no suitably qualified UK nationals available to do the work, or the alien must possess exceptional qualifications or experience.
The European Communities (Employment in the Civil Service) Order 1991 amended the 1955 legislation 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 posts that are public service posts within the meaning of the European Community treaty. Section 2(1) of the European Economic Area Act 1993 extended the rights of nationals of member states of the European communities to nationals of member states of the European economic area.
Against the background of a possible legal challenge at 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. The civil service management code was amended to restrict the employment of Commonwealth and Irish nationals in posts reserved for UK nationals.
The effect on civil employment under the Crown in the UK is that Commonwealth citizens, British protected persons and nationals of member states of the EEA may be employed only in non-public service reserved posts. Nationals of all other countries may be employed in the UK in non-reserved posts only if an exemption certificate has been issued. Although 75 per cent. of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals, the remaining 25 per cent., which require the special allegiance of public service posts, are reserved entirely for UK nationals—far more than is operationally necessary, but unavoidable because of the current rules.
The anomalies are best illustrated by example. In my constituency, as in many others, there are long-standing communities from all over the world, many of whose members are highly skilled professionals and people who were senior public servants in their home countries but who fled persecution from dictatorships many years ago. An Afghan recently came to my surgery. He was a senior civil servant before all the troubles arose in Afghanistan and he had to flee. Such people, and their children, who may now know no other country, are entirely barred. There are large Chinese and Japanese communities in Hendon, and many UK citizens are married to people of those nationalities. Assuming that they retained their citizenship, those people would be barred from jobs in the Department of Trade and Industry and could not be used to promote British trade overseas. The anomaly is that if their spouses were French, rather than British, they would not be barred from working for the DTI. That discriminates against the spouses of UK nationals as opposed to those of other European Union nationals. That is an appalling anomaly.
A Turkish Cypriot, for example, is eligible for non-restricted posts, but a Turk is not. Abu Hamza is a UK national and theoretically, if he were not in jail awaiting extradition, he could work for the civil service. I do not suppose that he would get a job, but
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one never knows. On the other hand, the American national widow of a British victim of 11 September is entirely excluded from Government employment.
The most recent anomaly that came to my attention was from Employability Forum, a voluntary organisation that promotes the employment of refugees and asylum seekers with permission to work in the UK. It recently developed a project with Jobcentre Plus in the west midlands aimed at increasing the uptake by refugees of Jobcentre Plus services. It wanted to recruit a refugee to promote the work only to find that it was not possible for him to be employed by Jobcentre Plus, obviously making the project potentially less effective. A way round it was found involving all sorts of complicated secondment arrangements, but that is not satisfactory.
Clause 1 tackles those bizarre and discriminatory anomalies by sweeping away the existing complex interlocking legislation and replacing it by 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. I urge the Committee to agree that it should stand part of the Bill.
Mr. Dominic Grieve (Beaconsfield) (Con): I welcome you to the Chair, Mr. Gale. I assure the hon. Member for Hendon (Mr. Dismore) that I will try to be as brief as possible. As a result, I will split my comments in two: I shall deal first with the generality of clause 1 and secondly with my new clauses.
I listened carefully to what the hon. Gentleman had to say and I am sympathetic towards some of his aims. There is no doubt that our present system contains a number of slightly bizarre archaisms. He highlighted some of the anomalies that may result. Nevertheless, there is a foundation behind the rules, which seems to make perfectly good sense. A person employed as a civil servant must be seen to be capable of being a servant of the Crown and be able to discharge the duties to the Crown loyally and through that to the fellow citizens whom he is there to serve within the United Kingdom. My personal view is that that probably has more to do with a person's attitude than their nationality.
The hon. Gentleman made the point that Abu Hamza would make an unsuitable Crown servant. I am rather inclined to agree, irrespective of his nationality, even though I know that the Home Secretary is trying to deprive him of it. Equally, I can see that the public should have complete confidence that those who make decisions that can directly affect the way that the state deals with their fellow citizens act impartially and certainly without any motive of advantage or attachment to some other country that they might also be seeking to serve.
That point needs to be considered. Otherwise, there will be a danger that the public will perceive that people are taking jobs as civil servants simply because it is a job without recognising that a high standard of conduct is required when discharging it. They will attach xenophobic views if it turns out that the person who has failed to discharge those functions correctly is a foreign national who has been retained by the state itself. That is the basic issue. It is not one that the
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Committee can simply gloss over and say that in the 21st century it does not matter any more. It does matter. That is why the Committee needs to consider it.
That said, I accept that the way that this has all come about, possibly as a result of the Act of Settlement, is slightly odd. The Act of Settlement was drafted as it was to prevent the King from having foreign advisers. That was regarded at the time, particularly in light of what had happened prior to that Act, as an important thing to do.
My background covers two countries: this one and a foreign one. It is right that dual nationals—which technically I could be, although I have never taken advantage of that opportunity—are in no way debarred from applying for a United Kingdom civil service job, even though they may have conflicting loyalties. I am even more mindful of the fact that, particularly on the European continent, there is a long tradition of foreigners taking up public service in another state. There is nothing new or modern about that. Anyone who reads history works on Russia in the early 19th century will know that the Russian army was full of foreign generals commanding it and that the Russian civil service was full of foreigners working in it. Indeed, I have a Grieve ancestor who was the physician to the Empress of Russia in the late 18th century. I am not sure that that was a civil service post, but it was certainly paid for by the Russian crown and I do not think that his British nationality was thought to make a bean of difference.
I shall give way to the hon. Member for Ealing, North (Mr. Pound). I want to give him an opportunity to have his pennyworth before I resume my place.
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