Clause 1 - Removal of existing nationality requirements

Crown Employment (Nationality) Bill – in a Public Bill Committee am 4:30 pm ar 7 Mehefin 2004.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

Photo of Andrew Dismore Andrew Dismore Llafur, Hendon

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

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

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.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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

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.

Photo of Steve Pound Steve Pound Llafur, Ealing North

It is always an honour for a Pound to have a pennyworth. I must say that I was swept away by the hon. Gentleman's glorious tide of 19th century Russian history. I had not realised that the number of advisers to Russian empresses included one of his ancestors.

In the hon. Gentleman's earlier comments about a conflict of loyalty, did it occur to him that many thousands of Irish, Indian and Nepalese soldiers have fought and died for this country, with no problem of conflict of loyalty? Does he not feel that there is possibly an element of double standards?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman makes a good point. The irony of the situation for the Irish was that, when the Irish Free State was set up, initially with the United Kingdom monarch remaining as King of Ireland, the matter was simply brushed under the carpet. It was a sensible and pragmatic British compromise. We simply decided to treat it as if it had not happened. To facilitate the continuing employment of Irish nationals in Britain, we decided not to treat Ireland as a foreign country. We repeated that in the Ireland Act 1949.

Subsequently, as legislation in 1996 demonstrates, there has been a move away from that position. Irish nationals enjoy the benefits of EU citizens, but their exceptional position does not now exist. Until 20 years ago, someone could have been born in Ireland with

parents and grandparents who had never set foot in the United Kingdom, but if they had gone to Belfast and asked for a passport, they would have got one.

I take the hon. Gentleman's point, but I hope that he listened carefully to my argument that my proposals are in part to provide the necessary reassurance that we are not being cavalier with the requirements of loyalty that come with being a civil servant. I am comfortable with the fact that many foreigners coming to a country and taking employment in its civil service will be outstandingly loyal in the discharge of their duties. I have no xenophobic view about that. If I were to go to a foreign country and it sought my service in helping to run it, I hope that I would be outstandingly loyal to that country. However, considering the powers that civil servants have in the discharge of their responsibilities, the public are entitled to reassurance that civil servants understand the nature of the function that they have taken on, which is not just any old job.

Photo of Michael Jabez Foster Michael Jabez Foster PPS (Rt Hon Lord Goldsmith, Attorney General), Law Officers' Department, PPS (Rt Hon Harriet Harman, Solicitor General), Law Officers' Department 4:45, 7 Mehefin 2004

Is that to do with nationality or anything other than simple loyalty and good faith? We have seen many recent examples of civil servants, some of whom have been encouraged by Her Majesty's Opposition, being extremely disloyal. Is it not an issue of individual loyalty, and if there is to be a loyalty test, should it not cover everyone rather than only some based on their place of birth?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I confess that I am a little shattered by the hon. Gentleman's last comment that the Conservative party has been encouraging civil servants to be disloyal, because I cannot think of a single instance of that in recent months. If he is alluding, as I think that he might be, to civil servants having sent us material in brown envelopes that showed that the Government had not told the complete truth about immigration matters, all I can say to him is that, first, we did not seek or solicit that material; secondly, we would never have done so; and thirdly, when we did get it, we did not make use of it until we were satisfied that it was overwhelmingly in the public interest that it should be disclosed. The hon. Gentleman's own party has made use of leaks from civil servants, and that is a matter for the individual civil servant concerned. In this case, I would also point out that, if my recollection is correct, the civil servant concerned is praying in aid the Freedom of Information Act 2000 and other Acts, pointing out that he had a public duty to disclose that material. I do not know what will eventually come of that, but that is what he has said.

To return to the point that I was making and picking up on what the hon. Gentleman has said, civil servants have a serious responsibility to discharge. It is not just another job. I do not mind what nationality they are,

but I think that it is important that they should understand that what they are doing is becoming a Crown servant, serving the citizens of this country. That is the point that should be reinforced.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

I echo the warm words of my hon. Friend the Member for Hendon in welcoming you to the Chair, Mr. Gale. I am tempted to follow the contribution of the hon. Member for Beaconsfield (Mr. Grieve) by relating the family legacy that I carry into the Committee—which is that the Garvines of Ayrshire, from whence I came, were the personal physicians to the Russian monarchs in the dim and distant past—but I fear that if I pursue that line, it may turn out that we are related. So, in the interests of either of our careers, I will not do so. Perhaps I should keep my remarks to the subject in hand.

The Government support the clause. As my hon. Friend the Member for Hendon pointed out, it removes the restrictions on nationality grounds for

''any person from being employed or holding office in a civil capacity under the Crown.''

We are committed to a civil service that reflects the diversity of the public whom it seeks to serve. The clause provides an opportunity for the Government to get rid of outdated restrictions that have no place in a modern democracy, and we are committed to improving diversity and opportunity.

Photo of Andrew Dismore Andrew Dismore Llafur, Hendon

I respond to the hon. Member for Beaconsfield by welcoming his comments that his reservations have nothing to do with the nationality of the individuals concerned. The point was made earlier that this is an issue not of nationality—whether individuals are UK or foreign nationals—but of loyalty across the board. There is no question of employing civil servants who are not capable of doing the job and loyally performing their duties. There is no suggestion in the Bill that we should depart from the normal civil service recruitment processes. Nor is there any suggestion of positive discrimination, or that we should depart in any way from the normal civil service code of conduct relating to appointment. The civil service code and the normal recruitment rules adequately deal with the hon. Gentleman's reservations.

I should add that we are not talking about the armed forces, although there are those either in or on secondment to the armed forces who are non-UK nationals. One need only consider the Brigade of Gurkhas, which has performed long and loyal service to this country. However, that is not what the Bill is about. It has to do with correcting anomalies, and I hope that clause 1 will find favour with the Committee.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill