On Friday 12th June, Andrew Dismore, Labour Member of Parliament for Hendon, attempted for the seventh time, to take his Crown Employment (Nationality) Bill through the House of Commons.

The Bill was fully debated (Mr Dismore’s speech attached). Unfortunately, though, Conservative Members forced a division on the Bill, even though their own front bench supported it. This had the effect of allowing the Bill to fail, because although a majority voted in favour, it was insufficient to meet the strict quorum requirements of the Commons.

After the debate Mr Dismore said:

“I was very disappointed that just two conservative Members took it upon themselves to block a Bill which has cross-party support from all the major parties in the House of Commons.

The Bill aims to deal with the outdated 200 year-old rules concerning employment in the civil service. The present rules are a complicated spider’s web of interlocking Acts of Parliament, regulations and rules, which are very difficult to interpret.

They create appalling anomalies, too, as I set out in my speech.

The time for reform has definitely come, but anti-reform Conservatives decided to block the Bill.

This is a great regret but I will continue persevering with it.”

HANSARD 12TH JUNE 2009


Crown Employment (Nationality) Bill
Second Reading
12 Jun 2009 : Column 1067
11.54 am
Mr. Andrew Dismore (Hendon) (Lab): I beg to move, That the Bill be now read a Second time.
This is not my second time but my seventh attempt to introduce the Bill. Twice—once a couple of years ago and once last year—I got as far as Report, so I hope to make a little more progress this time. The Bill was originally a Government handout measure, but it seems to have become my own work. I am persistent about it because the genuine problems that it seeks to address remain.
The purpose of the Bill is to remove the restrictions placed on the employment of non-UK nationals in civil capacities under the Crown. In place of the current system, the Bill would open up all civil employment under the Crown to applicants of any nationality, apart from such positions as would be rightly restricted to UK nationals—about 5 per cent. under rules made by the Minister responsible for the Department concerned.
Before looking at the detail, let me make it clear that the Bill does not deal with asylum, immigration or work permits, and does not affect the requirements for non-UK nationals to get leave to remain and permission to work in the UK. This is the Bill’s seventh edition and, as it has gone on, various changes have been incorporated to reflect concerns that have been raised at its previous Committee and Report stages. It must now therefore be nearing a degree of perfection.
The rules restricting the employment of foreign nationals by the Crown 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 thereunto belonging...shall be capable...to enjoy any office or place of trust, either civil or military”.
That prohibition has been amended over the years, and does not apply to Commonwealth citizens, citizens of Ireland or 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.”
“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.
During the second world war, defence regulations permitted the temporary employment of aliens, if no suitable British subjects were available. That was replaced by the Aliens’ Employment Act 1955, under which the prohibitions were relaxed so that aliens could be employed if they were either 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
12 Jun 2009 : Column 1068
aliens, or employed in accordance with a certificate issued by a Minister with the consent of the Minister for the civil service. In that 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 five years and must then be renewed.
In 2006-07, only 66 people were employed under the certificates, 37 of whom were in the Ministry of Defence. That compares with 67 in 2005-06, and 57 in 2003-04. A few weeks ago, I tabled some parliamentary questions requesting up-to-date statistics, but those questions have not yet been answered. Perhaps when the Minister responds to the debate she will be able to give us those figures if she has them. If not, perhaps she will tell me when I might get those answers.
The European Communities (Employment in the Civil Service) Order 1991 amended the 1955 Act so as to allow nationals of member states of the European Community, and their spouses and certain children, to take up civil employment under the Crown, apart from “public service” posts within the meaning of the European Community treaty. The rights of nationals of member states of the European Community were extended to nationals of member states of the European economic area by section 2(1) of the European Economic Area Act 1993.
Against the background of a possible legal challenge to 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. In that year, an amendment to the civil service management code was made to restrict Commonwealth and Irish nationals from being employed in posts reserved for UK nationals.
The most recent change was the European Communities (Employment in the Civil Service) Order 2007. That in large part gave effect to the St. Andrews agreement of October 2006. The Northern Ireland civil service was disproportionately affected by the prohibition of Irish nationals applying for reserved posts; in the Province, they accounted for 25 per cent. of the civil service. In annexe B to the agreement, there was a commitment to
“bring forward separate legislation before the end of 2006 to reform entry requirements to ensure access for EU nationals to posts in the Civil Service.”
The 2007 order amended the Aliens’ Employment Act 1995, to define more clearly and restrictively the categories of posts that could be reserved, reducing them to such areas as security and intelligence, defence, the diplomatic service, the Foreign and Commonwealth Office, border control and immigration, and that sort of thing. The result of the order was to open up about a further 70,000 posts to Commonwealth, Irish and EEA nationals—in addition to UK nationals, of course—through the reduction in the number of reserved posts, reducing the total number of reserved posts to about 5 per cent., or about 27,000 jobs altogether.
However, the same basic rules still apply. The order has no effect on Commonwealth, Irish or EEA nationals relating to public service reserved posts or on aliens for any post in the absence of a certificate under the 1955 Act, or on the alien spouse of a UK national—but not of an EEA national—who also remains ineligible for appointment to the civil service. The effect of the rules
12 Jun 2009 : Column 1069
is that foreign nationals may be employed abroad in any civil post under the Crown, including in the diplomatic service if the Minister considers it appropriate.
As regards civil employment under the Crown within the UK, however, Commonwealth citizens, British protected persons and nationals of member states of the European economic area may be employed in posts that are not “public service” reserved, but nationals of all other countries may be employed in UK non-reserved posts only if one of the very rarely issued exemption certificates is in force. Thus, 95 per cent. of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals and the remaining 5 per cent., requiring special allegiance for public service posts, are entirely reserved for UK nationals, while other nationals are pretty well entirely excluded, even if there is no good operational reason for doing so. Only posts that are operationally necessary are now reserved within the definition based on the EC treaty.
Attempts to define public service posts must follow EC case law and are subject to the judgments of the European Court of Justice. As a matter of UK law, however, EU nationals may now be admitted to civil service posts, but they cannot be admitted to ones that the European Court regards as employment “in the public service”. Although the European Court interprets employment in the public service narrowly, it has nevertheless taken the view in the past that officials concerned, for example, in the collection of taxes are employed “in the public service”.
The result was that, as a matter of UK law, a national of an EU member state cannot generally be employed in Revenue and Customs—because such a post constituted employment “in the public service” within the meaning of article 39(4) of the EC treaty, so the exception from the 1919 Act did not apply—and a criminal offence is committed if he is so employed. Revenue and Customs employment is now generally permitted, because of the effect of the new order.
I hope that Members are following the argument so far. What we have seen is basically a plethora of interacting and interchanging laws, regulations, rules, treaties and so forth, making it incredibly complicated to work out exactly what is what. My Bill will simplify all that lot, sweep away the complex spider’s web that people have to negotiate and produce some simple and straightforward rules.
To summarise, the net effect of the complicated web of law is that it is a criminal offence, even if done by mistake, to employ a non-Irish EEA national in a “public service” reserved post or any alien in any civil service post at all, apart from a tiny number of certificated exemptions. Although it is legal under the freedom of movement provisions to employ in a non-reserved post the alien spouse of an EEA national living in the UK, it rather bizarrely remains a criminal offence to employ the alien spouse of a UK national without an exemption certificate. It is all very legalistic and technical, so let me further illustrate the anomalies by example.
As I have said, the Bill does not change the rules on asylum and immigration in any way. In my constituency as in many others, there are long-standing communities— from Iran and Iraq, for example, and more recently from Afghanistan—often comprising highly skilled professionals. Some were senior public servants in their home countries, but became refuges, fleeing persecution
12 Jun 2009 : Column 1070
and dictatorship many years ago. They and their children, who may know no other country, are entirely banned from Government posts. They have a lot to offer and experience of working in our civil service would also stand them and their home countries in good stead if they ultimately wanted to return.
In Hendon, we also have large Israeli, Chinese and Japanese communities and UK citizens married to people of those nationalities. Assuming that they retained their own citizenship, these Israeli, Chinese and Japanese people, even though married to UK nationals, would be barred from jobs in the new Business Department, for example, where their language skills and knowledge of their home countries would be invaluable in promoting UK exports. However, if they were living in the UK and married a French or German rather than a British person, they would not be so barred and would be allowed to take up such positions under the freedom of movement provisions. It is bizarre that the spouse of a UK national is barred from working for the UK civil service, whereas the spouse of a French or German national is not.
The notorious extreme fundamentalist, Abu Hamza, has UK nationality—at least until the Home Secretary’s efforts to remove his nationality come to fruition—and could, in theory, be employed in any civil service post, although I doubt he would want to apply or stand much chance of passing the interview as he is now in prison. However, the American widow of a British 11 September victim will be entirely excluded from Government employment. How bizarre an effect of the present rules is that?
As is so often the case, the police service is ahead of the game. I first raised this nationality anomaly in the context of the police regulations years ago, and I am pleased to say that it was dealt with by the Police Reform Act 2002. Subject to proper immigration status, competence in English and certain reservations relating to sensitive posts, nationality is no longer a barrier to joining the police.
In our country, some 780,000 residents of working age are not United Kingdom, Commonwealth or EEA nationals, and are thus excluded entirely. In London, a diverse world city, 330,000 people—7 per cent. of the working-age population—are entirely excluded not just from the higher echelons of the civil service, but even from applying for the most junior social security clerk’s job in the Department for Work and Pensions. It is no wonder that we sometimes have difficulty in filling civil service jobs in the capital when such a high proportion of my fellow Londoners are entirely out of the equation.
My Bill tackles these bizarre and discriminatory anomalies by sweeping away the complex interlocking legislation and replacing it with 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, while at the same time empowering the Minister to make rules in respect of nationality requirements for certain categories of posts that it is clearly necessary, and in the national interest, to reserve for UK nationals.