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Crown Employment (Nationality) Bill

Orders of the Day – in the House of Commons at 9:33 am on 29th June 2007.

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Order for Second Reading read.—[Queen's Consent, on behalf of the Crown, signified.]

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 9:46 am, 29th June 2007

I beg to move, That the Bill be now read a Second time.

This is my fifth attempt to get this Bill through Parliament. I managed to get as far as Report stage a couple of years ago, but this time I hope to break that record and get to Third Reading—if not all the way through. I am pleased that my right hon. Friend Mr. Hoon, the Chief Whip, was here to give the Queen's consent and I congratulate him on his appointment. We only knew we had Queen's consent at two minutes past 5 last night. I do not know whether that was due to difficulties in the Department or problems at the palace. I presented the Bill on 18 December and named today's Second Reading date well over six months ago. I wrote to the Department on 22 March asking it to get Queen's consent. It wrote on 24 May and Queen's consent came though at two minutes past 5 last night. We might have had a constitutional problem if the consent had not been given, but all's well that ends well and I am pleased to say that we can proceed with the Bill.

I have been persistent because the real problems that the Bill seeks to address remain. The purpose of the Bill is to remove the existing 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 to applicants of any nationality all civil employment under the Crown, apart from such positions as would be rightly restricted to UK nationals—about 5 per cent. of the total—under rules made by the Minister responsible for the Department concerned. Before I talk about the detail, let me make it completely clear that the Bill does not deal with asylum, immigration, work permits or anything like that. It does not affect the requirement for non-UK nationals to get leave to remain and permission to work in the UK.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

The hon. Gentleman said that if the Bill became law, the number of posts reserved for UK nationals would be 5 per cent., but, if my memory is correct, the last time he addressed the House on this issue he said that the figure would be 10 per cent. Will he clarify which figure is correct?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I am happy to do that. The right hon. Gentleman is absolutely right. The figure was previously thought to be 10 per cent., but as I describe the legislative history of the problem, he will see why the Government now consider the figure to be around 5 per cent.

The rules restricting the employment of foreign nationals by the Crown have their roots in legislation from more than 200 years ago. 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" should be capable of enjoying any office or place of trust, either civil or military. Over the years, that prohibition has been amended and does not apply to Commonwealth citizens, citizens of the Irish Republic, 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. "Alien" is a rather archaic term, but is 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.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

The hon. Gentleman will know that I introduced a Bill in 2004 with similar provisions to those in his, albeit in the context of a civil service Bill that would have defined a civil servant and set out the way in which the code would work on a proper statutory basis. Why has he introduced such a sparse Bill, rather than going for a more comprehensive measure, given that he says that what a civil servant is must be pretty crucial to the whole process?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I recall the hon. Gentleman's Bill and that we were boxing and coxing on much the same day. A private Member's Bill should be short and relatively uncontroversial if it is to have any prospect of making progress. I think that his civil service Bill would have given effect to the recommendations of the Public Administration Committee, but a private Member's Bill of such magnitude had little prospect of success. However, if the hon. Gentleman is still of the same view, my Bill, which is shorter and deals with a distinctive aspect of the issue, might have a little more prospect of success.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

If the proof of the pudding is in the eating, perhaps, given that this is the hon. Gentleman's fifth go, he is not correct.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

As the hon. Gentleman will be aware, I have never come high on the ballot. The Bill has appeared in various forms and has morphed from a ten-minute Bill to a Bill presented and back again. However, it has never had any priority. I am pleased to be in pole position on a Friday, for once, because that is a record for the Bill. Let us see how we get on.

During the second world war, defence regulations permitted the temporary employment of aliens if no suitable British subjects were available. Those provisions were replaced by the Aliens' Employment Act 1955, which relaxed the prohibitions 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 a Minister to be appropriate for aliens, or employed in accordance with a certificate issued by a Minister with the consent of the Minister for the civil service. For a certificate to be issued, 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 those certificates, 37 of whom were in the Ministry of Defence. That compares with 67 in 2005-06 and 57 in 2003-04. The number is thus pretty static and well below 100.

The European Communities (Employment in the Civil Service) Order 1991 amended the 1955 Act to allow nationals of member states of the European Community, and their spouses and certain children, to take up civil employment under the Crown, except for "public service" posts within the meaning of the EC treaty. The rights of nationals of member states of the EC 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 in 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. An amendment to the civil service management code was made to restrict Commonwealth and Irish nationals from being employed in posts that were reserved for UK nationals.

The most recent change was the European Communities (Employment in the Civil Service) Order 2007. That was in large part to give effect to the St. Andrews agreement of October 2006. The Northern Ireland civil service was disproportionately affected by the prohibition on Irish nationals applying for reserved posts, which, in the Province, amounted to a quarter of the civil service. In annexe B of 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."

As we know, that took until 2007, when the order amended the Aliens' Employment Act to define more clearly and restrictively the categories of posts that could be reserved and reduced them to such areas as security and intelligence, defence, diplomatic and Foreign and Commonwealth Office posts, and border control and immigration.

The order opened 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 to about 5 per cent., or some 27,000 jobs altogether. I think that that is the detailed answer to the question asked by Mr. Knight. However, the same basic rules apply. The order has no effect on Commonwealth, Irish and EEA nationals in relation to "public service" reserved posts, although that is probably quite right given that we have reduced the number of such posts to a minimum. However, more importantly, there are restrictions on aliens taking any post in the absence of a certificate under the 1955 Act. There are restrictions on an alien spouse of a UK national, who remains ineligible for appointment to the civil service, but not the alien spouse of an EEA national.

The effect of the existing rules is that foreign nationals may be employed abroad in any civil post under the Crown, including in the diplomatic service, if a Minister considers that appropriate. However, when we consider civil employment under the Crown in the UK, Commonwealth citizens, British protected persons and nationals of member states of the European economic area can be employed in posts that are not public service reserved ones, while 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.

Some 95 per cent. of civil service posts in the UK are thus available to Commonwealth, Irish or EEA nationals. The remaining 5 per cent. of posts that require the special allegiance of public service are entirely reserved for UK nationals, yet other nationals are pretty well entirely excluded from everything, even if there is no good operational reason for doing that. Only posts that are operationally necessary are now reserved under the definition based on the EC treaty.

Attempts to define public service posts must follow EC case law and are subject to judgments of the European Court of Justice. As a matter of UK law, EU nationals can 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 that officials involved in the collection of taxes, for example, are employed in the public service. As a result, UK law stated that an EU national could not 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. The exception from the 1919 Act thus did not apply and a criminal offence was committed if such a person was so employed. However, such people are now generally permitted to be employed in Revenue and Customs because of the effect of the 2007 order.

Let me try to bring all this complicated law together and summarise it. The net effect is that it is a criminal offence, even if it is done by mistake, to employ an EEA national in a "public service" reserved post. It is also a criminal offence to employ any alien in any civil service post at all, apart from when one of the tiny number of certificated exceptions is in place. While, under freedom of movement provisions, it is legal to employ in a non-reserved post the alien spouse of an EEA national living in the UK, it remains a criminal offence, rather bizarrely, to employ the alien spouse of a UK national without an exemption certificate. While this all sounds very legalistic and technical, I believe the anomalies can best be illustrated by example.

As I have said, the Bill would not change the rules on asylum and immigration or work permits in any way. My constituency, like many others, has long-standing communities from such places as Iran and Iraq. They mostly comprise highly skilled professionals, many of whom were senior public servants in their home countries before fleeing persecution by those dictatorships as refugees many years ago. If they retain their nationality, they and their children, who might know no other country than the UK, are entirely barred from Government posts. They have a lot to offer, and experience of working in our civil service would stand them and their home countries in good stead if democracy returned to their home countries and they ultimately wanted to go back to contribute to them.

Hendon has large Israeli, Chinese and Japanese communities. More recently, communities from Afghanistan and Somalia have been established. UK citizens have married people of those nationalities. If such married Israeli, Chinese and Japanese people retained their own citizenship, they would be barred from jobs in the Department of Trade and Industry, or whatever it is now called—the Department for Business, Enterprise and Regulatory Reform—in which their language skills and knowledge of their home countries would be invaluable for promoting UK exports, for example. However, if their spouses were French, not British, they would not be barred from such a post.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

As the hon. Gentleman knows, the late Eric Forth was not a fan of the Bill. One of his concerns about it was that Crown employment should be for those who are loyal to the Crown. It can be argued that UK or Commonwealth nationals owe that allegiance, and in the case of the EU we have pooled our sovereignty. However, for nationals outside those three categories, the situation is not quite the same. What can the hon. Gentleman say on the issue of ensuring that public servants in the new category that he wants to create have loyalty to the Crown?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The hon. Gentleman makes an important point, but it is important to recognise that many jobs in the civil service are pretty mundane. We are not talking about the very small number of important jobs in which that is a crucial concern. We are not talking about the 5 per cent. of jobs that should, for good reason, be reserved for UK nationals alone, and from which EU nationals, for example, would be excluded. One has to consider the civil service in the round. We should bear in mind the hundreds of thousands of people who work for it and the different forms that that work takes. The issue is probably less important in relation to those jobs. I am sure that the hon. Gentleman will concede that the anomaly to which I have just referred is bizarre: a spouse of a French national could work in the civil service under the freedom of movement provisions, yet the spouse of a UK national could not.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

Yes, absolutely. Another point is that the contract between the employee and the Government would require loyalty to the Crown as one of its conditions, would it not? I believe that the civil service management code would require that. Although the obligation would not come from the person's nationality, it would be there as a matter of contract.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The hon. Gentleman is absolutely right. For example, the police service, to which I am sure he is referring, has dealt with that issue. The police service is ahead of the game in that respect, as in so many others. I first raised the nationality anomaly in the context of the police regulations many years ago, and the matter was dealt with in the Police Reform Act 2002. Subject to proper immigration status, competence in English, and with certain reservations for sensitive posts, nationality is not a barrier to joining the police, but of course an oath of office applies. That is probably the answer to the hon. Gentleman's question. He makes an important point about contractual obligations. Obligations relating to loyalty would apply to any employer, although I fully accept that employment by the Crown has a slightly different status and is in a slightly different category.

The anomaly is perhaps best illustrated by the case of the notorious Abu Hamza, the fundamentalist. He has UK nationality, at least until the Home Office's efforts to remove his nationality come to fruition, if indeed they ever do. If he was not in jail, he could in theory be employed in any post in the civil service, including the reserved posts. I doubt that he would want to apply, or that he would stand much chance of getting a job, but in theory, every job in the civil service is open to him. However, an American national who is the widow of a British 9/11 victim would be entirely excluded from Government employment. That sort of anomaly is simply not right, and it cannot be allowed to stand.

In our country, some 780,000 residents of working age are not UK, Commonwealth, or EEA citizens, and are thus excluded from civil service employment entirely. I have the honour to represent a constituency in London, which is a diverse world city, but 330,000 people in London, or 7 per cent. of its working-age population, are entirely excluded, not just from the higher echelons of the civil service, but from even applying for the most junior social security clerk's job. It is no wonder that we have difficulty filling civil service jobs in the capital when so many of my fellow Londoners are entirely out of the equation. In cities such as London, it is important to have a wide diversity of people working in the jobs through which the civil service comes face to face with members of the public, because those members of the public will be from different ethnic backgrounds. Language skills and knowledge of those backgrounds will be very helpful in dealing with the needs and requests of customers, or whatever they are called in the latest civil service jargon.

My Bill tackles the bizarre and discriminatory anomalies by sweeping away the existing 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. It also empowers Ministers to make rules in respect of nationality requirements for certain categories of posts—that is, posts for which it is clearly necessary, and in the national interest, for the job to be reserved to a UK national. As we discussed earlier, when I started this marathon, it was thought that that was about 10 per cent. of posts. Now it is estimated that only about 5 per cent., or 27,000, civil service posts need be reserved. It is expected that the Bill would open up the remaining 95 per cent. of posts to selection on merit, regardless of the nationality of the applicant, enabling us to build a civil service that reflects the diversity of the society that it serves.

Over the years, support for my proposals has grown. The civil service trade unions have supported it, and the Public Administration Committee said in its report that it was a "much-needed reform". The Bill has the support of the Commission for Racial Equality and, I think, the official Opposition, who we will hear from soon. I hope that it also has the support of the Liberal Democrats. I believe that the time has come for progress. I commend the Bill to the House, and I hope that it will receive its Second Reading today.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State 10:05 am, 29th June 2007

I had intended to say, "We have had an excellent debate," but we have not got that far. We heard a good opening salvo from Mr. Dismore. As he knows, I proposed a similar measure in 2004 as part of my Civil Service Bill. I should point out that when the prohibition was put in place in 1700, the civil service was very different, with a much narrower focus, and the world was completely different in many ways. Obviously, the Commonwealth and the EU had not been thought of, even distantly; they were not even a twinkle in anyone's eye. Given the narrow focus of the civil service in those days, the prohibitions were probably justifiable; world conditions were very different. Over the years, there have been amendments to the provisions but, again, the conditions in which those amendments were made were very different from conditions today.

The European Communities (Employment in the Civil Service) Order 1991 was the most recent major change. It allowed nationals of the European Community and their spouses and children to take up specific civil employment jobs. In 1996, an amendment was made to the civil service management code to place restrictions on Commonwealth and Irish nationals, so that they could not be employed in posts reserved for UK nationals. That put Commonwealth and Irish nationals in the same position as nationals of other member states of the European economic area. The outcome of the developments that I have just outlined is that foreign nationals can be employed abroad under the Crown in civil posts, if it is considered appropriate. In the UK, non-reserved posts are limited to Commonwealth citizens, British-protected persons and nationals of EEA member states.

Photo of David Heath David Heath Shadow Leader of the House of Commons

Would the hon. Gentleman like to hazard a guess on what the legal position might be of a Commonwealth citizen employed in the civil service, if his home country were suspended from, or chose to leave, the Commonwealth? Would his service contract be annulled? Would his employer be committing a criminal offence?

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

That raises an important question, because obviously at the time when the contract was concluded, the person met all the contract's requirements. The hon. Gentleman is right that if the underpinning statutory basis for the person's employment had gone—in other words, if he was no longer a Commonwealth citizen—it is arguable that he might lose his job. That sort of case probably does not come up often, although it could do. For example, the issue of whether Zimbabwe should be suspended from the Commonwealth has been discussed. Of course, many citizens of Zimbabwe live in the United Kingdom, and could take up the opportunity that we are talking about. The issue is a real concern. When Mr. Dismore responds to the debate, he may wish to help us with that, because, personally, I have not found the answer. He is nodding, so I believe that he will consider that in detail.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

Is it not sadly the case today that British citizenship is no guarantee of loyalty to the Crown? The perpetrators of 7/7, for example, were all UK citizens.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

My right hon. Friend makes an important point. When the provisions were put in place, it was assumed as a matter of course that a British UK national would be loyal to the Crown, and that one could rely on that loyalty. That underpinned the measure, and it was not necessary to go beyond that. These days, the civil service management code expressly states that there is a contractual loyalty to the Crown. That requirement is imposed on civil servants, so extra protection is provided by an enforceable duty. It should not be a matter of legal nicety that British citizens should owe a duty to the Crown. After all, this is an important, free, democratic society, and it is a beacon to the world. In the 1980s, when countries to the east were looking to the west, the UK was very much seen as beacon of hope in terms of personal freedom and other freedoms such as economic freedom. One of the best things to have happened in our political lifetime is the fact that countries under the Soviet thrall are now free countries with their own democratic tradition, and are part of the EU. That is a good step forward.

When I introduced my Civil Service Bill, I wanted to provide an encompassing measure that explained what a civil servant was; that put the civil service code defining the role of the civil servant into law and made it a statutory requirement; and explained the roles of Ministers, civil servants and special advisers more clearly. We still need to do that. The hon. Member for Hendon may say that that is a much broader measure and that he wants to pursue one particular aspect but, in fact, it is all part of the same overall set of issues, which are important to our country. If we are looking at the role of a civil servant and who can be employed in the civil service, it is a bit odd to look at one issue, rather than at the whole picture. Notably, the Public Administration Committee thought that a larger measure was needed, which is why I introduced my Bill.

Something else that has changed since I introduced my Bill is the fact that the categories of reserved post that can be undertaken only by UK citizens have been altered, and the number of such posts reduced. That is why 95 per cent. of the posts are available more generally, rather than 90 per cent. My late right hon. Friend, Eric Forth, always opposed the hon. Gentleman's Bill, because he thought that if someone wanted to come and live in this country and work in the civil service, they should follow a particular route. He said that foreign nationals desperate to work in the civil service could

"obtain a legitimate reason to be in this country through work permits or other routes; secondly, seek indefinite leave to remain, which follows naturally on the work permit; and thirdly, and most crucially, seek British nationality...they are very welcome indeed in this country as people with skills and a contribution to make.

Why are those people apparently unwilling to take those important steps".—[ Hansard, 20 January 2004; Vol. 416, c. 1228.]

The Bill would affect those who want to work under the Crown overseas, but in the UK, as the hon. Member for Hendon said, it is unreasonable to say that a citizen of Mozambique can work in the civil service but an American, for example, cannot do so. If an American is married to a British citizen they are not allowed to undertake such work, but someone from Mozambique can do so. Such distinctions applied to equally worthy individuals are very much a case of angels dancing on the head of a pin. Although my late right hon. Friend had a point, if we look at the reality of the Bill, we can see that it offers opportunities that are widely available in the EU and the Commonwealth. To add Americans, for example, to the list of eligible citizens is not a huge change.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

For the sake of accuracy, does my hon. Friend not acknowledge that part of the reason our late friend, Eric Forth, opposed the Bill had nothing whatsoever to do with its contents? As it was introduced by Mr. Dismore, he took the view that the assassin of many other Bills should have a taste of his own medicine.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

Yes. It is true, too, as the hon. Member for Hendon said, that the first time that he introduced the measure, it was competing with my Bill. Our late right hon. Friend was not a fan of my Bill, either, but he thought that if one Bill was going to fall, it should not be mine but the hon. Gentleman's. My right hon. Friend is absolutely right: a certain animus was involved, although no doubt there was admiration as well.

The Opposition believe that the hon. Gentleman's measure deserves a Second Reading. Some of my colleagues would certainly like to raise issues about its details, but the Front-Bench team support Second Reading.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee 10:17 am, 29th June 2007

First, may I congratulate my hon. Friend Mr. Dismore on his persistence on this important matter? The anomalies that he identified justify the changes that he proposes. The purpose of my contribution is merely to clarify a number of points, not unlike the purpose of the observations from Mr. Heald. The intervention that he accepted from Mr. Heath illustrates the nature of matters that I should gently like to pursue with my hon. Friend.

When I read the explanatory notes to the Bill and listened to the informative history lesson of rights in the civil service from 1700 onwards, I was slightly amused as I wondered about the historical position of the Welsh. I presume that at that time they were counted as being part of England, and as my hon. Friend's Bill rightly refers to

"persons born outside the United Kingdom", it neatly closes any doubts about the rights of the Welsh to become civil servants. The hon. Member for North-East Hertfordshire referred to our good friend the late Eric Forth, who was a consummate parliamentarian. He worked both for and against measures on which my hon. Friend the Member for Hendon worked on Fridays, and he was a great advocate of the Friday process, for which we respected him. I shall not seek to emulate his oratory on the details, but I should like to pursue one of the themes that he raised. Clause 2 may provide the answer to the intervention by the hon. Member for Somerton and Frome. Subsections (1) to (4) refer to rules that may be made. I presume that if the rules were made, they would deal with the kind of detail that concerned the hon. Member for Somerton and Frome.

Photo of David Heath David Heath Shadow Leader of the House of Commons

For the sake of clarity, I should point out that I was suggesting that there is an anomaly in the current rules, which would be extinguished if the Bill made progress.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee

Indeed, provided that the rules are appropriately worded.

I am interested in how the rules would work in practice. My hon. Friend the Member for Hendon may wish to intervene on me or explain when he winds up the debate. The Government may also wish to reflect on the matter. The word "may" is extremely important. This, I promise the House, is the very short version of what Eric might have spoken about for an hour without being caught by the Speaker for repetition, hesitation or deviation. The loophole that the hon. Member for Somerton and Frome and everyone else wants closed requires the rules to be established, so the House would expect the Government to make rules that create equality among people who could legitimately aspire to be civil servants, in the spirit of the opening speech from my hon. Friend and the response from the hon. Member for North-East Hertfordshire on behalf of the official Opposition.

The Bill enables the Government to take the necessary steps, but I assume that my hon. Friend and the House expect them to do so, in order to close the loopholes that have been identified and remove other anomalies that may have crept into the current rules as a result of the contradiction between national and European law. My hon. Friend has done the House a service, and we should welcome his efforts. I earnestly hope that the Bill will progress through its next stages, and that my hon. Friend the Minister will clarify the Government's intention to remove the current anomalies within the framework of this excellent Bill.

Photo of David Heath David Heath Shadow Leader of the House of Commons 10:24 am, 29th June 2007

I congratulate Mr. Dismore on yet again having the opportunity to present the measure and on speaking to it in such brief terms—quite out of the usual for his Friday morning contributions, but he covered the ground perfectly adequately and his intentions are clear to all of us.

I shall refer briefly to the Civil Service Bill mentioned by Mr. Heald. We are still in desperate need of a proper civil service Bill. It is extraordinary that the Government have not yet seen fit to table one. The hon. Gentleman's was a valiant attempt as a private Member's Bill, but the matter needs to be addressed by Government. I hope that the Minister, whom I warmly welcome to her new responsibilities and congratulate on her appointment, and her colleagues in the Cabinet Office will see such a Bill as the first priority for the newly convened Office. I hope that they will recognise the necessity for legislation in the next Session in order to regularise the position of the civil service.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I apologise. May I join in the welcome to the hon. Lady, who will make a tremendous addition to the Cabinet Office team?

Does the hon. Gentleman agree that the Government have promised a civil service Act since about 1997, yet somehow it never seems to happen?

Photo of David Heath David Heath Shadow Leader of the House of Commons

The hon. Gentleman is right. I must be careful not to divert my attention from the Bill, but his comments are relevant because such an Act would undoubtedly contain the measure before us, were it to have been drafted before the passage—as I hope it will be—of the Bill. We must wait for events.

The present situation is self-evidently an anomaly. I would have some sympathy with those who might oppose the Bill if the position was that only British citizens were allowed to hold posts in the civil service. That would be an understandable, though not an entirely reasonable or correct, position. I would even understand it if the regulations specified British or Commonwealth citizens, on the basis that at least there would be a shared stated loyalty to the Crown. All citizens of the Commonwealth share our monarch as their head of state.

However, it is beyond the limits of common sense that the rules extend the right to be employed in the civil service to citizens of the European economic area, who cannot be said to have any loyalty to our Crown, although I understand the point made by the hon. Member for North-East Hertfordshire about pooled sovereignty, and to citizens of the Irish Republic, even before the accession of our country or theirs to the European Union. Let us recall that citizens of the Irish Republic have deliberately forsworn loyalty to the Crown and will make that abundantly clear, and properly so, in the context of their republic.

As we know from the latest regulations, the rules also allow people who fall into neither of those categories but are married to or in a familial relationship with a person who is a citizen of the European economic area to be considered for employment under the Crown. The test of loyalty to the Crown has not the slightest relevance to those people, so the present situation is nonsense. I share the view of the hon. Member for North-East Hertfordshire that the question of loyalty is a question of contract—of the terms of employment of the Crown. That is what ought to matter, plus suitability for the post—the merit of the case.

The hon. Member for Hendon did not make the point, but it is worth making in debate, that the Bill removes none of the conditions or obligations for entry to the country, work permits or leave to remain. All that regulation remains in place, so we are not talking about people emerging out of nowhere to be civil servants in this country. We are talking about people who have a legitimate reason to be here, have legitimised their presence in this country and are available to work in any capacity other than as an employee of the Crown.

The Bill has great merit. I do not know why we have to decide that Mozambique is the exemplar of a Commonwealth country. I suppose that it is because it is the most recent one and because it does not share a history with the United Kingdom, being a former Portuguese possession, but it is a welcome entrant to the Commonwealth nevertheless. But the idea that a Mozambiquan and not a Montanan can be a member of the civil service does not make a great deal of sense to anyone who considers the matter for even 30 seconds.

I hope that the Bill will make progress. If the hon. Member for Hendon can enlighten me on the vexed question that I asked in an intervention on the hon. Member for North-East Hertfordshire as to the employment status and circumstances of a person who had been a Commonwealth citizen but was no longer one because his country was no longer a part of the Commonwealth, I would be interested—

Photo of David Heath David Heath Shadow Leader of the House of Commons

The hon. Gentleman has thought of an answer.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

No, I have not, but the point may go a little wider than the hon. Gentleman says. If, for example, someone were to lose their status for any other reason, the same issue would arise. For example, what would be the legal implications if someone who had had UK nationality lost it for whatever reason or changed it, having at the time when they took the employment had the correct nationality? Mr. Dismore may have researched that, but it is an important point.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I share the view that it is an important point. There is a distinction between something that is essentially ad hominem—that somebody has chosen to relinquish their previous citizenship or has had it removed for a reason that is specific to that person—and the fact that a person's country has ceased to be a member of the club that we call the Commonwealth, either by virtue of a decision of the rest of the Commonwealth or a decision of the Government of that country. Of course, that has happened—we have had examples of countries either leaving the Commonwealth or having their membership suspended. Therefore, it is not an entirely frivolous example. Whether the right of Commonwealth citizens to vote was suspended when their country was suspended from the Commonwealth was a question that I put in the context of the Electoral Administration Act 2006, but answer came there none from the Department for Constitutional Affairs. We wait to see whether the Minister has a briefing so compendious that it encompasses that point, but given that this is her first day in her new job, I do not expect her necessarily to have the answer in her head.

What I have said is sufficient to show that I support the Bill, and I urge my right hon. and hon. Friends to do the same this morning. I hope that it makes progress so that we can clear up a small but significant anomaly.

Photo of Gillian Merron Gillian Merron Parliamentary Secretary (the East Midlands), Cabinet Office 10:33 am, 29th June 2007

I congratulate my hon. Friend Mr. Dismore on introducing the Bill. This is his fifth attempt. As hon. Members know, he is something of an expert on private Members' Bills and this Bill is testament to his skill and tenacity.

It is an honour for me to reply to the debate today—my first morning as the new Minister with responsibility for the civil service—and I thank hon. Members for their kind comments of welcome, which are much appreciated. I pay tribute to my predecessor, my hon. Friend Mr. McFadden, for his excellent work in this regard, which I know was appreciated both inside and outside the House.

In the spirit of unanimity that we have found this morning, I am delighted to confirm that the Government support the Bill. It represents some sensible legislative tidying up to bring civil employment under the Crown, and in particular the civil service, in line with legislation applying to other employers, thereby enabling job opportunities to be offered to all who have the right to live and work in this country.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

I, too, congratulate the Minister on her new post. I think I can say on behalf of the Opposition that she will be missed in transport debates.

When was there last a prosecution under the present law of someone being so employed who should not have been so employed?

Photo of Gillian Merron Gillian Merron Parliamentary Secretary (the East Midlands), Cabinet Office

I thank the right hon. Gentleman for his characteristically generous and warm comments, and I shall be happy to write to him with an answer on that point.

The rules governing eligibility for employment in the civil service on nationality grounds are complex and time consuming to administer, and as Britain changes as a country they look increasingly out of place. Any country, including our own, will want to put national security at the forefront when considering who is eligible for employment in sensitive posts. But the question before us, and the matter with which the Bill skilfully deals, is whether the rules as they stand on eligibility for employment in the civil service generally give us a system that does this essential task and enables the civil service to draw on the widest possible pool of talent, which I am keen to see.

Businesses in the United Kingdom economy benefit from the energy, creativity and talent of people of many nationalities who contribute enormously to our economic well-being and national prosperity. The Bill's intention is to ensure that our civil service can do the same, while keeping in place essential protection for posts of a sensitive security or diplomatic nature.

About 5 per cent. of civil service posts are reserved for UK nationals only. The remaining 95 per cent. of posts are open not just to UK nationals, but to Commonwealth citizens, and to European economic area, Swiss and Turkish nationals and certain of their family members irrespective of their nationality. Other nationals may exceptionally be employed in the civil service only in the very limited circumstances set out in the Aliens' Employment Act 1955; that is, to certain overseas postings, or if granted an alien's certificate in respect of their employment. During 2006-07, only 66 aliens' certificates were in force throughout the civil service. Those arrangements are not consistent with our wish to build a civil service that reflects the society it serves and to attract the best of people.

In a nutshell, the Bill would give individuals the opportunity, irrespective of their nationality, to be considered for the vast majority of posts in the civil service, and in other posts of employment under the Crown. Appointment would continue to be subject to the existing rules of selection on merit, and the pre-appointment character and security checks undertaken in respect of all new appointees regardless of nationality would continue to apply.

The House should also be reassured that nothing in this Bill will change the requirements regarding eligibility to work in the United Kingdom generally. Requisite work permits will still have to be in place and there will be no question of individuals bypassing the immigration process.

The Bill will still allow certain posts to be reserved for UK nationals by giving to a Minister of the Crown, or to any person or body to whom that power has been delegated by a Minister of the Crown, the power to make rules imposing nationality requirements in respect of certain posts or categories of posts. It is intended that this power will be used only in respect of posts where considerations such as national security, intelligence, border control or diplomatic representation would apply, thereby requiring the posts to be reserved for UK nationals. This is assessed at no more than 5 per cent. of all posts within the civil service.

As this is a private Member's Bill, section 19 of the Human Rights Act 1998, which requires a statement of compatibility with convention rights where a Minister of the Crown is in charge of a Bill, does not apply. However, as a matter of good practice, it falls to me to express the Government's views on compatibility. The Bill will relax the current restrictions on eligibility for employment on nationality grounds in the civil service and in other posts of employment under the Crown. In doing so, it will not breach the provisions of the Human Rights Act.

Under clause 2, the reservation of certain posts to employees who are UK nationals will be authorised by rules made by a Minister of the Crown or by any person or body to whom that power has been delegated by a Minister of the Crown. The intention is that any such rules will preserve the rights of existing employees, and provision is made for that in clause 2(4). Indeed, any rules would have to comply with the convention under the provisions of the Human Rights Act. On those grounds, the Bill will be compatible with the convention.

On Queen's consent, I also need to signal that the Bill has been subject to consultation with Her Majesty the Queen, as it has two identifiable impacts on the Crown. The first is the more technical of the two, but it will be of particular interest to this House. It is that the Bill will result in the existing royal prerogative in relation to the fixing of nationality rules under Orders in Council being replaced by a power for a Minister of the Crown to make rules and to delegate that power, as appropriate, to any person or body. In that way, the royal prerogative will be replaced by a power conferred by Parliament.

The second impact is that, as the Bill will extend to employment in any civil capacity under the Crown, it will also apply to the royal household. Employment in the royal household would therefore be open to people of all nationalities, unless rules similar to those planned for the civil service were put in place. Under the terms of the Bill, it would be possible for any such rules in respect of the royal household to be made by a person or body acting under a delegation from a Minister of the Crown. Accordingly, I can confirm that I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Crown Employment (Nationality) Bill, has kindly consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of debating the Bill.

I want briefly to refer to some of the points raised by hon. Members in the debate. My hon. Friend Andrew Miller—a very fine constituency represented by a very fine Member of Parliament—raised the issue of the rules to deal with anomalous situations. His contribution was helpful and constructive, and I can tell him that the Bill would remove existing restrictions and anomalies on eligibility for employment in the civil service on nationality grounds. If the Bill is passed, the Government intend any rules made under clause 2 to relate only to the small percentage of posts that will be reserved for UK nationals.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I notice that the new Leader of the House is with us. I shadowed her for some time at the Department for Constitutional Affairs, and on behalf of the Opposition may I say that she made a major contribution and that we welcome her to her new responsibilities? I also congratulate her on her victory in the deputy leadership contest for the Labour party—it was a cliffhanger.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I am not coming over, but I wanted to make that point.

Photo of Gillian Merron Gillian Merron Parliamentary Secretary (the East Midlands), Cabinet Office

I concur with all the hon. Gentleman's comments. If I may speak on behalf of the Leader of the House, I thank the hon. Gentleman for his generous welcome.

My hon. Friend the Member for Hendon discussed the timetable for Queen's consent. A request was sent to the palace, which allowed ample time for consent to be given. I assure my hon. Friend that the Department kept on top of the matter in order to ensure that we would obtain Queen's consent in time for today, and I am delighted that that has happened.

Mr. Heald asked about allegiance to the Crown. It is a matter of employment under the Crown that a civil servant owes allegiance to the Crown, whatever their nationality.

Mr. Heath asked about the employment status of a Commonwealth citizen whose country leaves the Commonwealth. I am happy to write to him on that important point.

In conclusion, the changes that the Bill will introduce are deregulatory and will be welcomed by Departments and agencies. The nationality rules, as they affect employment or holding office in a civil capacity under the Crown, have been the subject of critical correspondence from MPs for many years, and I am glad that the Bill will receive cross-party support today and that the Government support it.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 10:45 am, 29th June 2007

I congratulate my hon. Friend the Minister on her new appointment and, more importantly, on her support for the Bill. I hope that this is the start of an excellent relationship and that we will take the Bill through Committee, should it find the favour of the House. As nobody has opposed it, I hope that it will.

Mr. Knight asked when the last prosecution for illegal employment took place. I suspect that there has not been one, because the civil service makes the necessary checks to ensure that it does not employ people illegally. I am sure that a permanent secretary would not like to be in the dock for employing somebody who should not have been so employed. I made that particular point to show how serious the restriction is and what would happen if someone were employed unlawfully.

My hon. Friend the Minister referred to the Bill's compatibility with the Human Rights Act 1998. As Chair of the Joint Committee on Human Rights, I was very pleased to hear her say that. The Committee has not scrutinised the Bill yet, but bearing in mind my views about that Act, I would be surprised if the Committee did not endorse the Bill as a measure that enhances human rights rather than simply being compliant.

I listened to what my hon. Friend had to say about Queen's consent. I know that her Department was hassling the palace, because I was hassling her Department by e-mail and phone. If the difficulties were not in the Department, then presumably they were at the palace.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

Presumably the Bill cannot apply to three members of the royal household, namely the Treasurer, the Comptroller and Auditor General and the Vice-Chamberlain, who are also Members of this House.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I assume that that must be the case. Those offices under the Crown are probably distinct from employment in the civil service, which the Bill addresses. Those posts could become reserved positions, if they are important to national security. The answer to the right hon. Gentleman is that if those posts are not reserved, they ought to be.

Photo of David Heath David Heath Shadow Leader of the House of Commons

If those posts were to fall under the Bill, there would be an employment relationship. That would be a disqualification under the Disqualification Act 1975, and the office holders would therefore cease to be Members of the House.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The hon. Gentleman is right—it is a bit like the Chiltern hundreds. I would hate to see my hon. Friend the pairing Whip disappear because he was employed rather than undertaking an office of profit under the Crown.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

Does the hon. Gentleman agree that any elected Member of this House would have to comply with the Representation of the People Act, so it would not be open to someone outside the EU or the Commonwealth to come here as a result of the Bill?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

We are heading off into the realm of fantasy. If we had to address that situation, I am sure that we could deal with it in regulation. I will not try to work out exactly who is or is not entitled to sit in this House—I am not sure whether Commonwealth citizens are entitled.

Mr. Heath asked what would happen if a country were to leave the Commonwealth. I suppose that the same issue would arise if a country were to leave the European Union. In such circumstances, the contract of employment would be void because of its illegality under existing employment law. [ Interruption . ] David Howarth, who is a professor of law, may correct me if I am wrong—it is a little while since I did my employment law in this respect—but I think that that would probably the be the answer. It would become illegal for them to be employed and the contract would be void with no rights of enforcement for compensation.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I recollect that under the Aliens' Employment Act 1955 the Minister for the Civil Service is able to give his consent and so would be able to intervene in an unusual case where there were compassionate circumstances.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The certificate could be granted only in very restricted circumstances—that is, if no UK national was available to fill the post or if it required some very high level of skill. The hon. Gentleman might be right in certain circumstances, but the generality is that the right to a certificate or the power to grant a certificate may not apply.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I do not want to prolong this erudite discussion, but the answer may be that the Aliens Restriction (Amendment) Act 1919 provides that no alien shall be appointed to any office. The person would qualify at the point of appointment; it does not say that they should not be employed.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The hon. Gentleman may be right. That issue might be for the House of Lords were it ever to arise. I sincerely hope that it does not, because it would probably bankrupt the civil service unions. Of course, under my Bill it would not arise, as the hon. Gentleman conceded in an intervention on my hon. Friend Andrew Miller. The avoidance of such arguments is another good reason why the Bill should proceed.

On the question of why there would be the power to make rules under the Bill, the answer lies in my introductory remarks. Because the current law is so complex and has developed over such a long period with so many amendments and amendments to amendments, we have ended up with an enormous, complicated chain. The Bill would provide the flexibility to change things as and when circumstances may change, without having to go through the whole rigmarole of hoop jumping that has got us where we are today.

I am pleased that Mr. Heald indicated support for the Bill on behalf of the Opposition. I take his point about the Civil Service Bill, but, as I said, the problem with that was that it was a very big Bill that was not really appropriate for private Members' legislation. If there were to be such a Bill, there is a strong argument for saying that the Government should introduce it. I am not surprised that the hon. Gentleman's Bill did not progress because it was not really suitable as a private Member's Bill, as I am sure he would privately concede.

The number of reserved posts has fallen primarily as a consequence of the European Communities (Employment in the Civil Service) Order 2007. If the hon. Member for North-East Hertfordshire wants to look at the detail, articles 2(6), (7), (8) and (9) set out the extent of the restrictions, which are common-sense restrictions that clearly involve some thought as to what is necessary for operational reasons.

The hon. Gentleman referred to the late Eric Forth's point about the question of nationality. The late Mr. Forth and I used to joust across the Floor of the House on most Fridays. We had mutual respect and, I think, a degree of friendship and acknowledgement of each other's skills in trying to frustrate Bills or, in my case, trying to get them through. I do not think that he tried to get his own Bill through, but he certainly used certain techniques to get his hon. Friends' Bills through. He used to come in on a Friday morning to see the lambs to the slaughter. It was a question of who had had the common sense to try to consult a little beforehand about the tactics that should be involved. We used to enjoy those exchanges and compliment each other. I would take it as a compliment if Eric Forth were trying to frustrate my Bill, and I think he would take it as a compliment that I managed to get as far as Report stage two years ago. Let us see how we get on with this particular measure today and in the next few weeks.

The substantive point concerned nationality. Of course, it now takes some time to get UK nationality, and rightly—it is not something that should be handed out with the rations or in a box of cornflakes. It is important to recognise that some people may want to keep their own nationality with the long-term object of returning to the home countries from which they fled as refugees. In those circumstances, it would be good for our country to be able to offer them posts in the civil service and to gain their experience of overseas methods of administration. Equally, it would be good for them, should they be able to return to their own countries—on the restoration of democracy, for example—and become re-engaged in their service, to take with them the experience of the British civil service, which I think is the best in the world, and thereby enhance those countries' administration. Leaving aside refugees, we may want to be able to help countries in other parts of the world through mutual secondments and exchanges whereby people are employed in the respective civil services, again to gain that experience for the purposes of spreading good practice. At present, that would be very difficult.

I think that I have dealt with most of the points raised in the debate. I hope that the Bill will find favour with the House and go into Committee. I commend it to the House.

Question put and agreed to.

Bill accordingly read a Second time.