Crown Employment (Nationality) Bill (Hansard, 28 January 2003)

§ Mr. Andrew Dismore (Hendon)

I beg to move, That leave be given to bring in a Bill to make provision for and in connection with the removal of general restrictions as to nationality which apply to persons employed or holding office in any civil capacity under the Crown; and for connected purposes. The Bill would remove the existing restrictions placed on the employment of non-UK nationals in civil capacities under the Crown. In place of the current system, it would open up all civil employment under the Crown to applicants of any nationality, apart from those positions that would be restricted to UK nationals under rules made by the Minister for the civil service, or by another Minister or other Crown official to whom he has delegated the power to make such rules. Before dealing with the detail of the Bill, let me make it completely clear that it does not deal with asylum, immigration or work permits, and it does not affect the requirements for non-UK nationals to get leave to remain and to work in the UK before they can take up employment.

The rules restricting the employment of foreign nationals by the Crown have their roots in legislation decided 200 years ago. The Act of Settlement 1700 provides that no person born out of the kingdoms of England, Scotland or Ireland, or the dominions thereto belonging, should be capable of enjoying 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 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. Contrary to popular belief, an alien is not a funny green man from Mars with a TV aerial sticking out of his head, or a character devised by Mr. Steven Spielberg. Alien is defined in section 51(4) of the British Nationality Act 1981 as a person who is not a Commonwealth citizen, a British protected person or a citizen of 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. So either no suitably qualified UK nationals are 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.

For the year 1999–2000, the number of persons employed under those certificates was a mere 20. The European Communities (Employment in the Civil Service) Order 1991 amended the law to allow nationals of member states of the European communities, their spouses and certain children to take up civil 760 employment under the Crown, apart from public service posts as defined by the European Community treaty. The rights of nationals of member states of the European communities 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 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 effect of the existing rules, therefore, is that foreign nationals may be employed abroad in any civil post under the Crown, which includes the diplomatic service if the Minister considers it appropriate. However, for civil employment under the Crown within the UK, Commonwealth citizens, British protected persons and nationals of member states of the European economic area may be employed only in posts that are not public service reserved posts, and nationals of all other countries may be employed only in UK non-reserved posts if one of the very rarely issued certificates is in force.

Although 75 per cent. of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals, the remaining 25 per cent. requiring the special allegiance of public service posts are entirely reserved for UK nationals. More posts are reserved than is operationally necessary, but that is unavoidable due to the present 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.

The net effect 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; to employ any alien in any civil service post at all, apart from the tiny number of certificated exceptions, and although it is legal to employ in a non-reserved post the alien spouse of an EEA national living in the UK, under the freedom of movement provisions, it remains an offence to employ the alien spouse of a UK national.

That all sounds very legalistic and technical, but I believe the anomalies can best be illustrated by examples. As I have said, the Bill will not change the rules on asylum and immigration in any way. In my constituency, like many others, we now have longstanding communities, for example from Iran and Iraq, mostly comprising highly skilled professionals, many of whom were senior public servants in their home countries, who fled persecution by those dictatorships many years ago. They, and their children, who may know no other country, are entirely barred.

In Hendon, we have Chinese and Japanese communities, and also UK citizens married to people from those countries, which are important trading targets. Assuming that they retained their own citizenship, those Chinese and Japanese people are barred from, for example, jobs in the Department of Trade and Industry, but if their spouses were French, rather than British, they would not be barred.

761 A Turkish Cypriot is eligible for a non-restricted post, but a Turk is not. The notorious Abu Hamza, the fundamentalist cleric who most people think should be kicked out of this country, if not put in jail, has UK nationality and could be employed in any post, although I doubt that he would want to apply, and, if he did, I assume that he would not pass the interview. However, the American national widow of a British victim of 11 September would be entirely excluded from Government employment.

As in so many things, the police service is ahead of the game. I first raised this nationality anomaly in the context of the police regulations over two years ago, and I am pleased that it has been dealt with in the Police Reform Act 2002. Subject to proper immigration status and competence in English, and with certain reservations for sensitive posts, nationality is no longer a barrier to joining the police, and that has made a great difference to police recruitment.

In our country, some 850,000 residents of working age are not UK, Commonwealth or EEA citizens, and are thus excluded entirely. In London, one of the world's great, diverse cities, 350,000 people, or 9 per cent. of the working age population, are entirely excluded, not just from the higher echelons, but even from 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.

My Bill will tackle those 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 762 prohibit the employment of any person in any civil capacity under the Crown, and at the same time empowering the Minister to make rules in respect of nationality requirements for certain categories of posts, which I envisage as those where it is clearly necessary, and in the national interest, for the job to be reserved for a UK national, which is about 10 per cent. of the total. It is expected that the Bill would open up 90 per cent. of all posts to selection on merit, regardless of nationality, enabling us to build a civil service that reflects the diversity of the society that it serves. I commend the Bill to the House.