HC Deb 20 January 2004 vol 416 cc1225-31

1.7 pm

Mr. Andrew Dismore (Hendon) (Lab)

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. This is my second attempt with this Bill under the ten-minute rule. Last year it failed through lack of time, but the very 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 all civil employment under the Crown to applicants of any nationality, apart from such positions as 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 looking at the detail, let me make it clear that the Bill does not deal with asylum, immigration or work permits, and that it does not affect the requirements for non-UK nationals to get leave to remain and to work in the UK.

The rules restricting the employment of foreign nationals by the Crown have their roots in events of more than 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 Restrictions (Amendment) Act 1919 provides that no alien shall be appointed to any office or place in the civil service of the state. Under the British Nationality Act 1981, an alien is defined as a person who is neither a Commonwealth citizen, 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 provision was replaced by the Aliens' Employment Act 1955 and the prohibitions were relaxed so that aliens could be employed if they had been appointed in a country outside the UK, the Channel Islands or 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 or the alien must possess acceptable qualifications. In the last year for which figures are available—2002–03—only 47 people were employed under such certificates.

The European Communities (Employment in the Civil Service) Order 1991 amended the 1955 Act to allow nationals of member states of the European Communities and their spouses and certain children, to take up civil employment under the Crown, apart from "public service" posts within the meaning of the EC 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 in the European Court, 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 effect of the existing rules is that foreign nationals may be employed abroad in any civil post under the Crown, including the diplomatic service, if the Minister considers it appropriate. However, as regards 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 ones; and nationals of all other countries may be employed in UK non-reserved posts only if one of the rarely issued exemption 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 2 per cent., which require 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. The net effect is that it is a criminal offence, even if committed by mistake, to employ a non-Irish EEA national in a "public service" reserved post or to employ an alien in any civil service post at all, apart from the small number of certificated exceptions. 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. Such anomalies are not likely to be less after the forthcoming EU enlargement.

Those points all sound legalistic and technical, so the anomalies can best be illustrated by example. As I said, my Bill does not change any of the rules on asylum and immigration, but my constituency, like many others, has long-standing communities from, for example, Iran and Iraq. Those communities mostly comprise highly skilled professionals, often people who were senior public servants in their home countries and fled persecution many years ago. They and their children, who may know no other country, are entirely barred.

In Hendon, we have large Israeli, Chinese and Japanese communities, and also UK citizens married to people of those nationalities. Assuming that they retained their original citizenship, those Israeli, Chinese and Japanese people would be barred from, for example, jobs in the Department of Trade and Industry, but if their spouses were French and not British, they would not be so barred. 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—at least, until the Home Secretary's efforts to remove his nationality come to fruition—and he could be employed in any post, although I doubt that he would want to apply, or that he would stand much chance at interview. However, an American national widow of a British national victim of 11 September would be excluded from Government employment.

In our country, about 850,000 residents of working age are not UK, Commonwealth or EEA citizens and are thus excluded entirely. In London, a diverse world city, 350,000 people—9 per cent. of the working-age population—are 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 left out of the equation.

My Bill tackles 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 prohibit the employment of any person in any civil capacity under the Crown, while empowering the Minister to make rules in respect of nationality requirements for certain categories of post where it is clearly necessary in the national interest for the job to be reserved for a UK national—about 10 per cent. of the total. It is expected that the Bill would open 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.

Since last year, support for my proposals has grown. In their evidence to the Select Committee on Public Administration, 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.

The concern the unions have is that this is not a metaphysical issue, it is a very real issue. People from the Irish Republic and the Commonwealth are debarred from access to quite a large number of civil service posts, and that is completely contrary to fairness, equality and the image we are trying to create as a diverse Civil Service. There seems to be a broad agreement that this is wrong and we need to put it right. There also seems to be agreement that it needs to be done by primary legislation because every other possibility has been explored and it will not work. Only a few days ago, in its first report of this Session, the Public Administration Committee stated: This would be a much-needed reform and one that has long been called for. The measure was

to be welcomed and such provisions should be included in primary legislation to be introduced when Parliamentary time allows". Last week, the Conservative Opposition proposed a Civil Service Bill, based on the PAC draft, so they, too, appear to agree with my proposals, as provisions in the Bill that I presented last year were incorporated in the Select Committee's report and appear to have been added to the Opposition Bill. I believe that they will advocate their Bill in an Opposition day debate tomorrow.

My Bill has overwhelming support from all quarters so, surely, the time has come for progress. I commend the Bill to the House.

1.17 pm
Mr. Eric Forth (Bromley and Chislehurst) (Con)

I am normally somewhat of an admirer of the parliamentary skills of the hon. Member for Hendon (Mr. Dismore). He and I mutually enjoy—I hope—facing one another in the Chamber from time to time, but on this occasion his timing seems to have deserted him. At this moment of our history, given global events, this is a bizarre measure to bring before the House. I shall say a few words about why that is the case.

I am not sure that the hon. Gentleman demonstrated with any great conviction what the problem is that he seeks to solve, other than to say that a lot of foreign nationals who live in this country could not get jobs in the civil sector. How far that is a problem is for Members to judge, and I shall come back to that in a moment. Underlying that point, however, is a serious strand of debate on the whole subject of multiculturalism and diversity.

I do not believe in multiculturalism at all. I believe in the melting pot theory that has made the United States and this country great over the centuries in this sense: people who come to the country voluntarily and who want to become part of our society should make every effort to blend into that society and to accept its customs and mores. To that extent, multiculturalism, as I think it is commonly viewed—not least by the hon. Member for Hendon—is a divisive factor in society, which I regret. In the sense that the Bill seeks to institutionalise multiculturalism, as I think that the hon. Gentleman was trying to explain it, I am very unhappy about it and we should be careful about proceeding too far down that route.

What puzzles me somewhat is that the hon. Gentleman argued that hapless foreign nationals who come to this country and are desperate to seek employment in the civil sector are debarred from doing so. Why is it not open to them, first, to obtain a legitimate reason to be in this country through work permits or other routes; secondly, to seek indefinite leave to remain, which follows naturally on the work permit; and, thirdly and most crucially, to seek British nationality, which very many people—I hope most of those who come to the country of their own volition—wish to do. I am talking not about asylum or immigration, as the hon. Gentleman asked us not to do so, but about all those other categories of people who come here, and 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—seeking work permits, indefinite leave to remain and British nationality—that would open the employment to them that the hon. Gentleman says is so important? But that would do another thing, which is even more crucial: it would tell us that they wanted to make that commitment to this country and our society that it is not unreasonable for us to expect. What is unreasonable, as the hon. Gentleman seems to be asking us in the Bill, is for someone to come to the country, insist on retaining their other nationality and seek—or, indeed, demand and complain if they do not get—the opportunity to be employed in the civil sector. That is what puzzles me about the measure.

Time and again, we are asked to take measures at the very time when there is a natural suspicion of many foreign nationals. Let us be blunt about it: that is what the whole homeland security apparatus—and many of the things that the Home Secretary brings before the House—is about. At this very moment, the hon. Gentleman asks the House to accept that people who will not even seek British nationality when they come to live here should have the doors to civil sector employment opened to them. That strikes me as odd.

Why do we have to make all the concessions? Why do we not ask them to make the concessions? Why do we not ask those individuals to take that very reasonable step, having come to this country and being welcomed here? Why should they not demonstrate their loyalty to this country by taking that ultimate step of seeking British nationality? Surely that would solve the problem in a far more acceptable way. Incidentally, it would provide a useful filter against the background of all the unease that we now have about terrorism and so on. In expecting those individuals to go through the procedure of work permit, ILR and nationality, we would give ourselves a reasonable chance of identifying those who not only do not want properly to associate themselves with this country, but might wish the country harm in some very rare cases.

In all those ways, I have the same doubts and suspicions about the measure as I had all through last year, when the hon. Gentleman and I sat opposite each other happily on Fridays and he tried to slip a similar Bill through and I prevented him from doing so. I give him notice that I will do exactly the same again this year, because the Opposition have a general rule that, if a measure is not fully and properly debated, it should proceed no further, so introducing it through the ten-minute rule procedure or what is known as the back-of-the-Chair mechanism is not good enough. That gets the measure on the first rung of the ladder, but unless there is debating time for it, in my view it should proceed no further up the legislative ladder.

If this is an attempt to smuggle through a Bill that the Government would really like to secure, the Government should introduce it. I am happy to say that many private Members' Bills that are introduced by well-meaning Members but which are really Government Bills end up having to be introduced by the Government any way because those of us who are alert to these matters prevent them from being smuggled through the private Member's procedure. So whichever this is an example of, we will be looking out for it.

If the hon. Gentleman manages—it is perfectly possible that he may—to get proper debating time on the Floor of the House, we could better assess the extent to which all those good people whom he claims support the measure actually do so. We could then assess all this consensus, all this happiness, all this motherhood and apple pie that he claims in support of the measure. That could be demonstrated by an appropriate number of Members being present. Perhaps the quorum of the House—40 Members only out of 659—could be present on a Friday, which is not an unreasonable request when making new laws. If he can get those 40 good souls and true here on a Friday, I suppose that there is half a chance that the Bill might proceed to Committee and, when it returned on Report, we would see whether the same 40 forgathered again and—who knows—on that basis, it might just make some progress.

This is a serious matter. The hon. Gentleman is trying to make a serious change to the law and, at the same time, a very serious statement about the relationship between foreign nationals and British nationals and about the nature of our society and our civil employment. This is not a trivial matter; it carries a lot of weight and symbolism with it. I recognise it as such, which is why I am happy to have this opportunity to express my grave reservations about the measure and all the baggage that it carries with it.

We will see whether the House chooses in its infinite wisdom to give the Bill time to be properly debated and considered on Second Reading, in Committee and on Report. If it does, I hope to be present, to be vigilant and to be able to question the Bill. If it is the will of the House, it may proceed. However, unless all those questions can be satisfactorily answered and unless the hon. Gentleman can give a much fuller explanation of the real nature of the problem, as he put it—other than that people who refuse to attempt to get British nationality cannot get jobs in the civil sector—we should think carefully about passing the Bill. If that is the nature of the problem, I am not impressed, but if it is more than that, we will hear about it and we will be able to judge. Short of that, I do not believe that we should let the Bill through on this occasion.

Question put, pursuant to Standing Order No. 23 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of public business): —

The House divided: Ayes 118, Noes 21.

Division No. 33] [1.26 pm
Allan, Richard Cruddas, Jon
Allen, Graham Cryer, Ann (Keighley)
Barnes, Harry Cryer, John (Hornchurch)
Beard, Nigel Cunningham, Tony (Workington)
Begg, Miss Anne Curtis-Thomas, Mrs Claire
Beggs, Roy (E Antrim) Dalyell, Tam
Beith, rh A. J. Davey, Edward (Kingston)
Brake, Tom (Carshalton) Davidson, Ian
Breed, Colin Davis, rh Terry (B'ham Hodge H)
Brennan, Kevin Dobbin, Jim (Heywood)
Brooke, Mrs Annette L. Drew, David (Stroud)
Burden, Richard Ellman, Mrs Louise
Burstow, Paul Ewing, Annabelle
Cable, Dr. Vincent Farrelly, Paul
Calton, Mrs Patsy Foster, rh Derek
Campbell, Mrs Anne (C'bridge) Foster, Don (Bath)
Campbell, Ronnie (Blyth V) Francis, Dr. Hywel
Carmichael, Alistair Gapes, Mike (Ilford S)
Caton, Martin George, Andrew (St. Ives)
Chaytor, David Gerrard, Neil
Clapham, Michael Gibson, Dr. Ian
Clarke, rh Tom (Coatbridge & Chryston) Gidley, Sandra
Green, Matthew (Ludlow)
Clarke, Tony (Northampton S) Hamilton, David (Midlothian)
Clwyd, Ann (Cynon V) Harvey, Nick
Cohen, Harry Heath, David
Cousins, Jim Hood, Jimmy (Clydesdale)
Cranston, Ross Hopkins, Kelvin
Hoyle, Lindsay Reid, Alan (Argyll & Bute)
Hughes, Kevin (Doncaster N) Rendel, David
Iddon, Dr. Brian Robertson, Angus (Moray)
Jenkins, Brian Robertson, John (Glasgow Anniesland)
Jones, Jon Owen (Cardiff C)
Jones, Lynne (Selly Oak) Ruane, Chris
Kennedy, rh Charles (Ross Skye & Inverness) Russell, Bob (Colchester)
Salmond, Alex
King, Andy (Rugby) Sanders, Adrian
Lamb, Norman Sawford, Phil
Laws, David (Yeovil) Sedgemore, Brian
Llwyd, Elfyn Sheridan, Jim
Luke, lain (Dundee E) Skinner, Dennis
Lyons, John (Strathkelvin) Squire, Rachel
McKechin, Ann Steinberg, Gerry
McWalter, Tony Stewart, David (Inverness E & Lochaber)
Mahon, Mrs Alice
Marris, Rob (Wolverh'ton SW) Taylor, Matthew (Truro)
Martlew, Eric Taylor, Dr. Richard (Wyre F)
Meale, Alan (Mansfield) Tonge, Dr. Jenny
Mitchell, Austin (Gt Grimsby) Turner, Dennis (Wolverh'ton SE)
Morgan, Julie Tynan, Bill (Hamilton S)
Mudie, George Vaz, Keith (Leicester E)
O'Brien, Bill (Normanton) Vis, Dr. Rudi
O'Hara, Edward Webb, Steve (Northavon)
Öpik, Lembit White, Brian
Owen, Albert Williams, Betty (Conwy)
Picking, Anne Williams, Hywel (Caernarfon)
Pickthall, Colin Williams, Roger (Brecon)
Pike, Peter (Burnley) Winnick, David
Plaskitt, James Wishart, Pete
Pound, Stephen
Pugh, Dr. John Tellers for the Ayes:
Purchase, Ken Mr. Andrew Dismore and
Rapson, Syd (Portsmouth N) Ms Karen Buck
Clifton-Brown, Geoffrey Selous, Andrew
Conway, Derek Spicer, Sir Michael
Djanogly, Jonathan Spink, Bob (Castle Point)
Flook, Adrian Swayne, Desmond
Gale, Roger (N Thanet) Taylor, John (Solihull)
Hogg, rh Douglas Trimble, rh David
Horam, John (Orpington) Winterton, Ann (Congleton)
Liddell-Grainger, Ian Winterton, Sir Nicholas
Mates, Michael (Macclesfield)
Redwood, rh John
Robertson, Laurence (Tewk'b'ry) Tellers for the Noes:
Rosindell, Andrew Mr. Eric Forth and
Ruffley, David Mr. Andrew Turner

Question accordingly agreed to.

Bill ordered to be brought in by Mr. Andrew Dismore, Ms Karen Buck, Mr. Iain Coleman, Mr. Andrew Love, Tony Wright, Sir Sydney Chapman, James Purnell, Linda Perham, John Austin, Mrs. Annette L. Brooke, Keith Vaz, and Mr. Stephen Pound.