Crown Employment (Nationality) Bill

Prayers – in the House of Commons at 11:49 am on 12 June 2009.

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Second Reading

Photo of John Spellar John Spellar Comptroller (HM Household) (Deputy Chief Whip, House of Commons)

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 Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 11:54, 12 June 2009

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 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 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 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 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.

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

As the hon. Gentleman knows, I have heard most of these arguments several times before, and indeed have advanced similar arguments myself. I wonder whether he has yet found an answer to another conundrum which I threw at him back in 2007. What happens when a Commonwealth citizen who, as he says, is entitled to be employed by the Crown, is so employed and his country then secedes or is suspended from membership of the Commonwealth? Must that person then resign his post?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I think my answer would be no, because the person's country had been a member of the Commonwealth at the time of his employment. It could be argued that the contract of employment would be frustrated, but I think that the matter would be approached sensibly, on the basis of the rules as they applied when the person was employed. If the person was fit to work and suitable for appointment at the time when he was employed, the existing position would continue. The person in question would still be the same person even if his country had been suspended from the Commonwealth, like Zimbabwe.

When I embarked on this marathon, it was thought that about 10 per cent. of the total number of posts should be reserved. It is now estimated that only about 5 per cent. of civil service posts—27,000—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 nationality, enabling us to build a civil service reflecting the diversity of the society that it serves.

Over the years, support for my proposals has grown. In their evidence to the Public Administration Committee, the civil service trade unions said:

"For the record we should state that the present Civil Service Nationality Rules are blatantly discriminatory against people from the Irish Republic and the Commonwealth. This is not a situation which reflects well on the Government or the Civil Service and completely flies in the face of efforts to develop a diverse Civil Service which represents the whole community it serves and one which endeavours to provide equality of opportunity to all its staff."

Several years ago, the Public Administration Committee said:

"This would be a much-needed reform and one that has long been called for", and that it was

"to be welcomed and such provisions should be included in primary legislation to be introduced when Parliamentary time allows."

I therefore hope that the Bill will now be able to make progress. Obviously it would also raise issues in the context of clause 184(5) of the Equality Bill, which refers to schedule 22.

Some years ago, when the Opposition tabled a civil service Bill based on a Select Committee draft, they appeared to agree with my proposals, and I understand that they continue to endorse them as a sensible reform. Surely the time has now come for progress. Surely we can get rid of a raft of ancient legislation dating back 200 years and replace it with legislation that is modern and fit for the 21st century, so that the civil service can recruit the people who are best suited for the job and so that we can ensure that our rules deal with applicants in a genuinely non-discriminatory way.

Photo of David Heath David Heath Shadow Leader of the House of Commons 12:09, 12 June 2009

There are certain rites and annual events of this House that mark the passing of the seasons, and one of them is the Second Reading of the Crown Employment (Nationality) Bill on behalf of Mr. Dismore. I find it unbelievable that we are still discussing, in this groundhog day way, exactly the same Bill year after year, when it is perfectly obvious that its provisions are sensible. It makes a very minor change to the enactments that affect the civil service, and there is no adequate reason why the Government cannot accept it. They might wish to do so with amendment, but the principle behind it must, I am sure, be agreed on both sides of the House.

I and some other Members from both sides of the House have argued for a long time that we should have a civil service Bill. We have been repeatedly promised such a Bill, but it has never transpired. We have been told that its principal features will be subsumed within the Constitutional Renewal Bill, but we have not seen that yet, of course, and some of us have our doubts as to whether it will actually encompass the provisions of a draft civil service Bill, which we have discussed on previous occasions, which the Public Administration Committee has been involved in, and which so many Members have advocated.

Even in the absence of a more comprehensive piece of legislation, it does not seem to me to be beyond reason for the following absurd anomaly to be addressed. If a citizen of Mozambique—I always seem to use that country as my example in these cases, perhaps because it is the most recent member of the Commonwealth, but also perhaps because it has no historic links with the United Kingdom—can have employment, why cannot someone from Montana? Where is the logic in that anomaly in terms of the proper running of the civil service and the interests of the country? Of course some posts must be restricted, and the hon. Gentleman's Bill makes provision for that, but if it is right and proper that any citizen of a Commonwealth country or of the European Union, or any spouse of a citizen of the EU, can be employed in the civil service, why not extend that to others who do not come from those countries, but who are well qualified and who could, I am sure, provide the same level of loyalty to the Crown, if not by nationality then by contract? That is the crucial point.

I welcome the Minister to her new post. I hope she will set aside the attitude of her predecessors for seven years, or however long it has been—I am unsure on how many occasions this Bill has been brought forward—and welcome the Bill. Moreover, I hope she will welcome it with a determination to take it forward. If at the end of the day it is better for its provisions to be subsumed within the Constitutional Renewal Bill, and if we have that Bill and it makes progress in this parliamentary Session, so be it, but, for heaven's sake, let us get on with this. Let us get rid of these anomalies and make our legislation make sense—and please can we not have to sit through another Friday morning with exactly the same speeches being made on both sides of the House supporting exactly the same measure, because it really is not a sensible use of our time?

Photo of Nick Hurd Nick Hurd Shadow Minister (Cabinet Office) 12:14, 12 June 2009

On this groundhog day, may I, too, start by congratulating the new Minister on her appointment? I am sure our future exchanges will be more focused on the role of government in unlocking the potential of the third sector to help more people, but today we are rightly focused on what is a stubborn Bill, and I congratulate Mr. Dismore, not least for his tenacity. I have always been grateful to him because he showed relative benevolence to my private Member's Bill, which became the Sustainable Communities Act 2007, although I suspect that that generosity had something to do with the fact that his own Bill was next on the Order Paper. I have always been grateful that he kept his assassin's dagger in its sheath that day and I wish him well with this Bill. I congratulate him on the speech that he delivered, but there is no surprise in that because he has delivered it enough times. I suspect that he could recite it in his sleep, and Mr. Heath could probably do the same. We believe that the Bill deserves to receive a Second Reading.

Like the hon. Member for Somerton and Frome, who speaks for the Liberals, Conservative Members regret that today we are looking at just one small corner of the painting and not at the wider canvas of the role and status of the civil service. We have consistently stated our view that this reform should be placed in the larger context of a civil service Act that defines the role of the civil servant in law. That has been promised since 1997 and is yet to be delivered. At a time when public confidence in the way in which we are governed is at such a low ebb, the case for such an Act grows even stronger. We now look to the Constitutional Renewal Bill to deliver it and we urge the Government to get on with it. I recognise the argument that private Members' Bills should be focused on relatively modest and concise objectives, and we accept that the principle of this Bill is right.

The law on who is eligible to work in the civil service is rooted in a different age and it is complex, it has been amended on many occasions and, unsurprisingly, it is a mess. It throws up plenty of anomalies, and those were described well by the hon. Member for Hendon. They must be irritating to work with and the provisions are no longer rooted in any logic. Foreign nationals can be employed by the Crown abroad, if that is considered appropriate, but in the UK non-reserved jobs are limited to Commonwealth citizens, British protected persons and nationals of European Union member states. In 2009, it makes no sense that someone from Nigeria can apply for a job in the civil service here, but someone from the United States cannot do so. In the past, the law might have been justified by concerns about securing allegiance to the Crown, but that justification evaporated with the relaxing of eligibility for members of the EU. In any case, the oath of loyalty to the Crown is now a question of contract, above all, and the Bill does nothing to change the right of Ministers to reserve sensitive posts for UK nationals.

There appears to be an opportunity cost to this muddle, because at a time when we want to be attracting the brightest and best to the civil service and we want our public servants genuinely to reflect modern Britain and its growing ethnic complexity, not least in London—I, too, am a Greater London MP, so I entirely endorse what the hon. Gentleman is saying in this context—it makes no sense to leave a group of people totalling 800,000, on his numbers, outside the tent. All those people have a legitimate right to be here to make a contribution in appropriate roles. We think they should be given that chance and we are therefore happy for the Bill to be receive a Second Reading.

Photo of Angela Smith Angela Smith Minister of State (Third Sector), Cabinet Office, Minister of State (Cabinet Office) (Third Sector) 12:18, 12 June 2009

First, I congratulate my hon. Friend Mr. Dismore on his continuing commitment to this Bill; I believe he said that this is his seventh attempt with this particular piece of legislation. I also understand that the former Member for Wimbledon, Mr. Casale, also introduced this Bill, so it has a long and dignified history.

As I understand it, the Bill has sought in the past, and continues to seek, to do two things. First, it seeks to remove nationality restrictions applying to employment or the holding of office in a civil capacity under the Crown. Secondly, it seeks to empower a Minister of the Crown to make rules in respect of the nationality requirements of certain categories of posts. In effect then, the Bill would open up Crown employment, including in the civil service, in non-reserved posts to all individuals of any nationality who can live legally in the UK and have entitlement to work here. There would be no bypassing of the UK's immigration system.

I wish to go into a bit more depth about the Bill, but may I say at the outset that I think it contains considerable merit, although some issues will require further discussion? So, although I am unable to give full support to the Bill today, I want it to progress to Committee, because that seems to be the appropriate place to discuss those issues and examine any concerns that may be raised. In the fine traditions of this House, that is the right and proper way to address such concerns. I cannot give it my full support, but it is appropriate that it should go to Committee for further discussion.

I shall set aside the effect of the Bill for the moment and consider the current nationality rules and framework, and who can currently be employed under its remit. Holders of an office in a civil capacity under the Crown include civil servants in Departments, including the devolved Administrations, the judiciary, the security and intelligence services, the royal household and civilian Army personnel. Within those two groups are two types of post—the reserved and the non-reserved. As we have heard from my hon. Friend, reserved posts are those that are seen, due to their sensitive nature, as requiring special allegiance to the Crown and therefore reserved for UK nationals only.

Some posts are reserved as a matter of course—for example, all posts in the intelligence and security services are reserved, as are those in the diplomatic service and the Foreign and Commonwealth Office, unless in the latter case the Minister decides otherwise. Certain other categories of post are also capable of being reserved for UK nationals, but only if the Minister responsible for the Department or agency considers that to be necessary. Examples of such posts include posts in the defence intelligence staff in the Ministry of Defence or those posts whose functions are concerned with access to intelligence information received directly or indirectly from the security intelligence services; access to other information that, if disclosed without authority or otherwise misused, might damage the interests of national security; or access to other information which, if disclosed without authority or otherwise misused, might be prejudicial to the interests of the UK or the safety of its citizens. Other such posts include those concerned with border control or decisions about immigration.

If a post does not fall into one of the above categories, it cannot be reserved. This supports the deliberate intention to keep the posts as open as possible and to reserve as few as possible. My hon. Friend asked about some parliamentary questions that he had tabled. I can tell him that some 5 per cent. of posts in the civil service are currently reserved and the rest are available to all other qualifying nationals. Some 27,000 posts are reserved. As I am relatively new to this position, I have not seen the other questions that he mentioned, but I will ensure that he receives answers as soon as possible. He also asked how many alien certificates had been issued in 2008-09. The final figures are being collated, so they are not yet available, but they will be made available to him as soon as that happens. For 2007-08, the figures peaked at 80 through the year, although the final figure was 60. Those figures have not been finally confirmed, but when they have, they will be provided to my hon. Friend. I hope that that is helpful to him.

So which nationalities, under the rules, are eligible for employment in those remaining 95 per cent. of posts and who is precluded? The answer is that the rules do not specifically preclude any nationality from being considered for employment—individuals who apply for posts will be eligible in their own right or, potentially, employable through one of the available exceptions. As of right under the rules, the following countries or associations of countries are eligible for employment: the UK; the Republic of Ireland; the Commonwealth; the European economic area; and Switzerland and Turkey. Also, certain—not all—family members of EEA, Swiss and Turkish nationals are also eligible regardless of their nationality. UK nationals include citizens born in the UK; British citizens born abroad; British Overseas citizens; British Overseas Territories citizens; British Nationals (Overseas) British subjects; and those recognised as British citizens through naturalisation or registration.

Mr. Heath asked about Commonwealth citizens. A Commonwealth citizen is any person who has the status of a Commonwealth citizen under the British Nationality Act 1981, and the territories forming part of the Commonwealth are listed as part of that Act. That includes more than 70 countries and territories. His particular question was about what would happen if a country ceased to be a member. The response given by my hon. Friend the Member for Hendon pretty much headed in the right direction. The rules do not affect the rights of those who might be in employment whose countries are then suspended from the Councils of the Commonwealth. When a nation is suspended, its nationals remain in employment if they are already employed or remain eligible for employment. That would only change if the nation concerned was formally excluded by the amendment of the Act. There would have to be a formal exclusion under the legislation; a suspension would not affect eligibility for employment.

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

Do I then understand that were a country to be excluded from the Commonwealth—or to exclude itself by secession—the terms would apply? That was the corollary of what she said, which was that it would not apply under suspension.

Photo of Angela Smith Angela Smith Minister of State (Third Sector), Cabinet Office, Minister of State (Cabinet Office) (Third Sector)

Yes, that is the case. If the legislation changed and that country was no longer a member of the Commonwealth—if it had been formally excluded by amendment of the Act—its nationals would not then be eligible for employment.

The EEA comprises not only the member states of the EU, but, as hon. Members will be aware, the nations of the European Free Trade Association. That means that the Crown can draw on the talents of some 30-plus nations from that group alone. Also included is Switzerland, whose nationals have the same rights as EEA nationals.

That pool of talent is widened further to include Turkish nationals and certain family members of EEA, Swiss and Turkish nationals. Turkish nationals are eligible for Crown employment if they have been lawfully employed in the UK for four years in any job or for three years in the same occupation as the post that they wish to take up under the Crown. The family members of EEA nationals gain their rights in such circumstances as the EEA national has exercised their rights under the treaty establishing the European Community—in particular, the right to freedom of movement. As a result, those family members of EEA nationals, irrespective of their nationality, are eligible to take up employment in the member state where that national is employed.

That means that certain family members of EEA nationals employed in the UK would also be eligible to be employed in the UK and therefore to be employed in non-reserved posts in the civil service, even if they did not as individuals satisfy the civil service nationality rules. That was the point that my hon. Friend the Member for Hendon was making.

The family members concerned are the spouse or civil partner of the EEA national, and the direct descendants of the EEA national or their spouse or civil partner, such as their children and grandchildren. Direct descendants only qualify if they are under the age of 21 or are dependants. Dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner, such as their parents and grandparents, are also included.

Certain family members of Swiss nationals resident in the UK, who are not Swiss and would not otherwise satisfy the rules, have rights to reside and to take up employment in the member state where that national is employed. That means that family members of Swiss nationals employed in the UK would also be eligible to be employed in the UK and therefore to be employed in non-reserved posts in the civil service. My hon. Friend did say that this could get to be rather a technical argument, and I think that we are proving that point.

The family members concerned in this case are the spouse of the Swiss national, the direct descendants of the Swiss national—such as their children and grandchildren, as I have said—who are under the age of 21 or are dependants and their dependent relatives in the ascending line, such as grandparents and parents. In the case of a Swiss national who is a student, rights extend only to the spouse and any dependent children of the Swiss national. Those family members can work in the UK and are eligible for employment in non-reserved posts in the civil service.

Certain family members of Turkish nationals who qualify for employment in the civil service are also eligible for employment in the civil service. Family members of Turkish nationals are eligible for employment in non-reserved civil service posts if they have been lawfully resident in the United Kingdom for three years or more.

The family members concerned are Turkish nationals' spouses and direct descendants of either the Turkish national or the spouse. Those descendants are children—including stepchildren—grandchildren, and great-grandchildren who are under the age of 21 or who are dependants. Also included are direct dependent relatives in the ascending line of a Turkish national or their spouse—that is, their parents, grandparents and great-grandparents.

In order for the family member to be eligible for employment in the civil service, they must have lived in the UK with the qualifying Turkish national. There are also special rules that entitle children of qualifying Turkish nationals to take up jobs in the civil service if they have completed a course of vocational training in the UK. There is no length-of-residence requirement attached to that right. The Turkish national or the other parent of the child must have been legally employed in the United Kingdom for at least three years. After that fairly brief overview, I am sure the House will agree that the framework already allows for recruitment from a wide range of nations. I think it would also agree that there is some complexity in the rules.

It is worth considering where the framework came from, and how we got to this point. The statutory prohibition on the employment of aliens in a civil capacity under the Crown—including, but not only, in the civil service—stems from the Act of Settlement of 1700. That Act provides that

"no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging" may

"enjoy any Office or Place of Trust either Civill or Military".

That provision was repealed in 1919—it took a few years—and replaced by the Aliens Restriction (Amendment) Act 1919, which provides that

"no alien shall be appointed to any office or place in the Civil Service of the State."

My hon. Friend rightly feels some frustration at having proposed the measures in his Bill seven times in seven years; he would feel greater frustration if he had been trying to change things from 1700 to 1919.

An alien—I grant that that is not the most attractive of words to use to describe a non-UK national—is defined in the British Nationality Act 1981 as

"a person who is neither a"

British nor a

"Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland."

The position with regard to the employment of aliens changed during the second world war. At the time, defence regulations permitted the temporary employment of aliens if no suitable British subjects were available. That situation was altered under the Aliens' Employment Act 1955, which provided that

"an alien may be employed in any civil capacity under the Crown", either in posts outside the UK—an example would be locally engaged staff—or, exceptionally, in other circumstances under cover of an alien's certificate, signed by the responsible Minister. I shall say a bit more about the 1955 Act shortly. Following that Act, the European Communities (Employment in the Civil Service) Order 1991—Statutory Instrument 1991/1221—and the European Economic Area Act 1993 had the effect of opening up Crown employment to nationals of the European economic area, with the exception of "public service" posts, or, as we know them in the UK, reserved posts within the meaning of article 39(4) of the European Community treaty.

That was followed by the European Communities (Employment in the Civil Service) Order 2007, which came into force on 7 March 2007. It amended the 1955 Act and the 1991 order to specify in more detail the definition of reserved posts and to clarify eligibility to take up non-reserved posts in the civil service. The 2007 order sets out categories of posts that are either automatically reserved to UK nationals or can be reserved to UK nationals if the relevant Minister considers it necessary.

The Bill would remove the nationality restrictions by providing that section 3 of the Act of Settlement does not prohibit

"any person from being employed or holding office in a civil capacity under the Crown", and by repealing section 6 of the Aliens Restriction (Amendment) Act 1919, the whole of the 1955 Act, and the 1991 order.

I think we understand the point made by my hon. Friend when he says that in many cases the complexity of the legislation can make it difficult to ensure that the right rules have been applied. Is there merit in the changes he proposes? That is a matter for the House to decide and the Committee to consider.

I mentioned a moment ago that the spouse of an EEA national can be deemed eligible for Crown employment irrespective of their own nationality. The family members of EEA nationals gain their rights in circumstances where the EEA national has exercised their rights under the treaty of the European Community—in particular, the right to freedom of movement. My hon. Friend raised this specific point.

The interrelationship of EC and UK law has created what is commonly referred to in the civil service as the alien spouse anomaly, whereby a Chinese national married to a French national who was working in UK could be deemed eligible for civil service employment by extension of their spouse having exercised their freedom of movement rights. But if the same Chinese national were married to a UK national working in the UK, they would not be deemed eligible, thereby giving more rights to EEA nationals and their families than to UK nationals.

It is worth noting—this is where I have some disagreement with my hon. Friend's analysis, though he is essentially right in practice—that the consequence of the freedom of movement rights does not represent a complete bar on the spouses of UK nationals. UK nationals themselves may have gained their rights by exercising freedom of movement or are open to that, as any other EEA national is. If they have triggered those rights, their spouse may well be eligible for Crown employment, irrespective of their nationality. However, it is accepted that in reality an EEA national living and working in the UK is more likely to be able to show that they have engaged their freedom of movement rights than a UK national living in the UK.

The Bill seeks to remove the anomaly. Beyond this, one could argue that the Bill represents a sensible tidying up of somewhat aged and complex legislation, removing an administrative layer from recruitment and putting the Crown and civil service on an equal footing with the rest of the UK. That is the considerable merit of the Bill. However, there are difficulties that need to be teased out in Committee, and that is why I cannot give the Bill my full support at present.

One of the questions that we should consider is whether there is at the moment a problem with the recruitment or retention of talent and which the Bill addresses, and whether it is helpful in that regard. The Crown, including the civil service, evolves like all other employers. It needs to be able to reflect a diverse society to understand and meet its needs. To do that, it must be able to draw on a range of talent and variety of individuals. The civil service would accept that the widest pool possible was to its benefit in getting the talent and the skills that it requires. The legislative framework as it stands allows recruitment from a wide range of nations so that the Crown and civil service are able to recruit the talent that they need, without affecting policies on national security and/or immigration.

The changes in the economic and working climate within which we should consider the Bill are brought into focus if we consider that during the Bill's presentation in 2007 my hon. Friend:

"I have the honour to represent a constituency in London, which is a diverse 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."—[ Hansard, 29 June 2007; Vol. 460, c. 579.]

He made a similar point today.

The use of aliens certificates means that individuals are not barred per se from employment, even at the most junior levels. They can be employed at any level, in any city or town, when there is a need. That they are not suggests that there currently is not the need. What is more, and critical in illustrating the changing climate, is the fact that since my hon. Friend made his statement in 2007 about job opportunities in London, the efficiency and relocation programme undertaken by the civil service dictated that some 20,000 jobs were to be relocated out of London and the south-east by 2010.

In the recent Budget, the number of jobs to be relocated out of London and the south-east by 2010 was further increased to 24,000. So far, more than 17,000 jobs have been so relocated. Now some three quarters of civil service jobs are located outside London and the south-east. Alongside that, the civil service currently has a work force of 487,000 full-time equivalent civil servants. That is the lowest number since 1999. In the year ending March 2008, the turnover was 7.8 per cent., so there is evidence of a slowing down in the rate of departure in the current economic climate.

To put that in context, when the Bill was first introduced in 2001, the civil service had 39,230 entrants and 31,360 leavers, and a work force of more than 500,000. By 2008, that had fallen to 23,490 entrants and 41,050 leavers, and a work force of 487,000. Indeed, the number of entrants to the civil service is at its lowest level since the Bill was first introduced, whereas the number of leavers is proportionally at its highest.

In 2001, 39,000 people joined the civil service, against 31,000 people leaving, so 11 per cent. more joined than left. In 2002, 47,370 joined, against nearly 28,000 leaving, so 42 per cent. more joined than left. In 2003, well over 60,000 joined yet nearly 45,000 left, so 26 per cent. more joined the civil service than left. In 2004, 54,500 people joined the civil service, while not that many fewer—46,000—left, so 15 per cent. more joined than left. In 2005—another year in which my hon. Friend introduced his Bill—40,000 joined, against nearly 51,000 leaving, which gives a difference of 20 per cent. In 2006, 37,000 joined, with 42,000 leaving. In 2007, nearly 25,000 joined, against 36,000 leaving, which gives a 31 per cent. difference. In 2008, 23,000 joined the civil service and 41,000 left, which gives a difference of more than 43 per cent.

Of the vacancies available in the civil service, all departmental vacancies are initially advertised for a minimum of two weeks to staff at risk of redundancy, because we obviously want to maximise redeployment and minimise any possibility of compulsory redundancy. I am sure the House would accept that, particularly at this time, those are the actions of a good employer. They are, of course, also supported by the national trade union side, and form part of an agreement made in April 2008.

Coupled with that, the civil service, like any other big employer, has a policy of redeployment, within departments and across departmental boundaries, and promotions. That enables the service to utilise people's key skills, which Departments will have invested in, and retain key talent. That said, the civil service cannot be protectionist or keep all its posts for its own people. It recognises that external recruitment is essential at all levels to provide opportunities to jobseekers and bring in new talents, experiences and ideas. To that end, a large number of jobs at all levels are advertised in the external market each year, both in the press and in a number of other ways, but mainly through local jobcentres and on the civil service website.

The key is to have balance. External recruitment and internal moves allow new ideas to be brought in and job opportunities to be created, while ensuring a level of stability in organisations and—I emphasise this point—reducing the need to resort to compulsory redundancies. The civil service, as the largest employer under the heading of the Crown, has to strike that fine balance between finding efficiency savings and supporting the UK and its workers through the current economic downturn, and it has shown a determination and commitment to achieve this.

I spoke earlier about the relocation away from London and the south-east, and about the current position on recruitment. Relocations away from London are not the only issue, of course. As part of the efficiency and relocation programme, significant work force reductions have had to be faced and some 76,600 were achieved between July 2004 and March 2008. Further reductions continue to take place.

Despite that context of efficiency savings and relocation, the civil service is seeking to play its role in the current economic climate, and is actively recruiting to Jobcentre Plus to deal with the rise in registrations and to assist people back to work. It is right that that should be done; if finding work becomes harder, we should do more to help, not less. The civil service has also committed fully to the success of local employment partnerships. As the House will know, LEPs aim to get priority group customers into work. They are a partnership between business and Jobcentre Plus and provide tailored support to prepare the unemployed for work. I am pleased to report that the civil service has committed to filling at least one in four of its administrative staff vacancies through LEPs.

The discussion on recruitment helps to illustrate the fact that there simply is not an endemic problem that repealing the existing legislation on nationality would solve. Whatever merits the Bill has, it would not automatically resolve the point at issue. With the exception of Jobcentre Plus, which is creating jobs for a specific reason—actively to assist the British economy towards recovery—recruitment is at a reasonably low level. Repealing the legislation at this time would have little practical effect in the current climate.

That is supported by the most recent findings of the Migration Advisory Committee, which recently published its first review of the shortage occupation lists for skilled workers coming to the UK from outside the EEA. In announcing the publication of its recommendations, Professor David Metcalf, the chair of the committee, said:

"The points-based system, including the shortage occupation list, has to operate for the benefit of United Kingdom workers, especially given the current economic climate. These latest recommendations take account of the impact of the worldwide recession on the United Kingdom. We have looked critically at the evidence regarding the occupations under review and made recommendations which balance the needs of the UK workforce against those of employers. It is important to note that some shortages of skilled labour will still exist in a recession. This can be where there is a long-term structural shortage of skilled workers, where workers provide key public services, or in areas such as culture where the United Kingdom needs to maintain global leadership."

If we consider the occupations on the list for tier 2 of the points-based system, we see that the terms "civil servant" and "Crown employee" do not appear. Terms that we might associate with professions in the civil service or in Crown employment—for example, "administrator", "policy official" or "project manager" do not appear on the list. It is reasonable to conclude that they do not appear because there is not a shortage in those areas.

Any roles within the civil service or under the Crown that may appear on the list are likely to be in more specialist or technical areas and would not, as a result, be widespread across the civil service. Situations such as a qualifying national not being available or specialist skills being needed would attract the use of the alien's certificate route. For example, "structural engineer" appears on the shortage occupation list and a structural engineer is currently employed in the civil service under cover of an alien's certificate.

You will be aware, Mr. Deputy Speaker, that I have only recently undertaken this brief. One of the things that I have wanted from my officials is more detailed information on aliens certificates—how they are used and how many are used. My hon. Friend the Member for Hendon has also been looking into that issue. I shall share the information that I have received with the House.

A criticism of the framework has often been that, although it provides for a wide-ranging group of nationalities to be deemed eligible for employment under the Crown, a significant number of nationalities and individuals are precluded. It is argued that that preclusion prevents as wide a pool of talent as possible from being chosen, denies the Crown the best available people and prevents a diverse work force from being created. That is not strictly the case. Where necessary, the current framework does allow individuals to be employed from outside the UK, the EEA, the Commonwealth, Switzerland and Turkey.

The Aliens' Employment Act 1955 allows for the employment of non-UK, non-eligible nationals under cover of what are known as aliens certificates. The circumstances in which an aliens certificate may be issued are set out in section 2 of the Act:

"a certificate may be issued under this section either in respect of employment of a specified alien in specified service, or in respect of the employment of aliens generally in specified service or in service of any specified class or description; but no such certificate shall be issued unless it appears to the responsible Minister, at the time of the issue of the certificate,

(a) in the case of a certificate in respect of the employment of a specified alien in a specified service, either that no suitably qualified person being a British subject is available for employment in that service or that the alien possesses exceptional qualifications or experience fitting him for such employment;

(b) in the case of any certificate, that suitably qualified persons being British subjects are not readily available, or available in sufficient numbers, for employment in the service, or class or description of service, specified in the certificate."

In brief, a certificate can cover the employment of a particular individual in a particular post or the employment of individuals generally in specific posts or in posts of a particular class or description. For the purposes of the civil service nationality rules, this is described as a certificate being able to be issued where

"there is no suitably qualified UK national available for employment in that post; or the alien possesses exceptional qualifications or experience for the post. Other certificates (including those covering the employment of aliens in posts of a particular class or description) may only be issued if suitably qualified UK nationals are not readily available, or available in sufficient numbers for employment in the post or class or description of the posts specified in the certificate."

Aliens certificates currently in force cover a diverse range of nationalities. It may be helpful if I provide the House with a breakdown of where individuals covered by the certificates come from. Fourteen certificates cover individuals from the USA. One individual is from Egypt, three are from China, one is from Iran, 61 are from Nepal, one is from Tunisia, one is from Chile, one is from Argentina, one is from Japan, one is from Sudan, one is from Ukraine, one is from the Democratic Republic of the Congo, one is from Colombia, one is from Brazil, one is from Venezuela, and one is from Thailand. The range of posts is equally widespread, from junior administrative grades to specialists in scientific fields—from individuals employed in Ministry of Defence barracks to specialist marine biologists and, as I said, a structural engineer.

As my hon. Friend the Member for Hendon suggested, the use of aliens certificates has been criticised for being an overly onerous administrative process. It would therefore help the House if I explained how a Department goes about getting an aliens certificate. It is not that burdensome, but it is, as he said, an additional administrative layer of bureaucracy. For applications for a certificate on the grounds that no qualifying national is available, the Department concerned makes a business case to the Cabinet Office setting out certain details: confirmation that there are no restrictions on the candidate's taking up employment or that the Home Office has given the necessary clearance; confirmation that the post is non-reserved; confirmation that no qualifying national is available; details of the recruitment campaign, including when and where the post was advertised, the number of applications and the results of interviews; and a draft copy of the aliens certificate.

For applications on the grounds that the candidate brings specialist skills, experience or qualifications, the business case to the Cabinet Office should provide: confirmation that there are no restrictions on the candidate's taking up employment or that the Home Office has given the necessary clearance; confirmation that the post is non-reserved; details of the recruitment campaign, what is the specialist requirement of the post, and what specialist skills the candidate brings that others do not; and a draft copy of the aliens certificate. The Cabinet Office will then consider the case and, assuming that consent is granted, send the confirmation back to the Department with the certificate for signature by the Minister in that Department. Once signed, the certificate is returned to the Cabinet Office. Given the numbers involved, the processing of aliens certificates is not an overly onerous administrative task to place on Departments and agencies, so repealing the legislation and removing the need for the certificates would not solve a problem or create any significant efficiency savings.

I would not for one moment claim that the current system is perfect. It would be inappropriate to do so. My hon. Friend addressed the issue moderately by saying that the Bill would remove an administrative burden and tidy up legislation, but the current law allows a workable, pragmatic approach to recruitment.

UK, Commonwealth and European economic area citizens are available to the Crown, and the issuing of aliens certificates allows Departments, agencies and so on to widen their scope where necessary, perhaps when a post requires such specialist skills that the number of candidates is naturally limited, or if recruitment at a junior level is traditionally difficult due to the geographical location of the post, its salary, its low level or local unemployment. The pool of talent available to the civil service is therefore both wide and diverse.

It is reasonable to suggest that were there a shortage of eligible nationals available to take up posts or a lack of expertise in specialist posts, applications for the certificates would be growing in number. They are not, and I gave my hon. Friend the relevant figures earlier. At any one time there are approximately 60 to 80 certificates in force, in a civil service that currently has 487,000 employees. Indeed, in the financial year 2008-09, requests for applications fell by almost 20 per cent. In the current financial year to date, the number requested is three, compared with six in the same period in 2008-09.

I shall expand the discussion on the use of aliens certificates. It has been argued that the mechanism is difficult to use, which is why its use is minimal compared with the total number of civil service employees. In 2004, the late Eric Forth spoke about the Aliens' Employment Act 1955 in a debate on the earlier version of this Bill. He said:

"It takes a rather sensible approach, which seems to have stood the test of time. As I understood it, the measure reverses the presumption, so that instead of opening our doors to anyone regardless of their nationality, it states that we would not wish automatically to allow people who have not chosen to express their loyalty or identity to this country by taking British nationality to work within our Government, but that we are prepared to consider...on a case by case basis those who may wish to be so employed and that, if they can satisfy us that their skills are relevant and that we need and would appreciate their services, we have a mechanism to allow them to do that work."—[ Hansard, 14 May 2004; Vol. 421, c. 595.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Christopher Chope Christopher Chope Conservative, Christchurch 1:09, 12 June 2009

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

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

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

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

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

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 1:13, 12 June 2009

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

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

The House proceeded to a Division.

The House having divided: Ayes 29, Noes 2.

Division number 148 Prayers — Crown Employment (Nationality) Bill

Aye: 29 MPs

No: 2 MPs

Aye: A-Z by last name


No: A-Z by last name



I was most impressed reading Angela Smith's presentation, until I noted it was read from a prepared brief. Never mind, it was quite a lot to remember so give her...

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