HL Deb 10 May 1991 vol 528 cc1281-5

11.23 a.m.

Lord Waddington rose to move, That the draft order laid before the House on 15th April be approved [16th Report from the Joint Committee].

The noble Lord said: My Lords, this order has been made necessary by Article 48 of the Treaty of Rome, which provides for free movement in the Community labour market. It aims, among other things, to cut out unnecessary restrictions on employment due to nationality qualifications. The position at the present time is that, whereas EC law permits only a central core of posts in the Civil Service to be closed on grounds of nationality to the citizens of other EC countries, our law excludes anyone from employment anywhere in the Civil Service who is not a British citizen, a Commonwealth citizen, a British protected person or a citizen of the Republic of Ireland save in exceptional circumstances to which I shall refer in a moment.

The order before your Lordships therefore amends our law so as to bring it into conformity with EC law by allowing EC nationals from now on to compete on merit in fair competition with our own nationals for all Civil Service posts except those in the central core. We know that other member states, France for instance, are making similar changes in respect of their civil services.

At this point, I should say a word about the relevant legislation. Article 48 of the treaty prohibits discrimination based on nationality between workers of member states as regards employment, remuneration and other conditions of work and employment, with Article 48(4) providing a limited exception to that general rule in relation to the public service. The trouble is that the "public service" is not itself defined in the treaty, but it has been defined by the European Court of Justice in a number of cases as: posts which … require a special relationship of allegiance to the state on the part of the persons occupying them and the reciprocity of rights and duties which form the foundation of the bond of nationality". That is a pretty narrow definition which cannot cover all our Civil Service posts, but under our current domestic legislation all posts in the Home Civil Service and the Diplomatic Service are subject to the provisions of the Act of Settlement 1700, the Aliens (Restriction) Amendment Act 1919 and the Aliens' Employment Act 1955.

The result is that anyone who is not a Commonwealth (including British) citizen, a British protected person or a citizen of the Republic of Ireland is excluded from employment in the Civil Service, subject only to the exception provided in the Aliens' Employment Act 1955 which allows an alien to be employed under a certificate authorised by the employing Minister with the consent of the Minister for the Civil Service. Under the Civil Service nationality rules such a certificate will be issued only in the exceptional circumstances where no suitably qualified person meeting the nationality requirement is available for employment or where the alien possesses exceptional qualifications or experience.

Article 2 of the Order in Council therefore extends the exception in the Aliens' Employment Act 1955 so as to allow nationals of member states of the Community to be employed in the Civil Service in posts other than posts defined as being in the public service within the meaning of Article 48(4) of the Treaty of Rome. The article also provides that where a national of another member state is employed accordingly, so may be the spouse, a child under the age of 21 years, or a dependent child.

Article 3 of the order makes similar provision in relation to the Northern Ireland Civil Service, to which the Aliens' Employment Act 1955 does not extend, thus ensuring that the same position is achieved in the whole of the United Kingdom.

The only other matter I need inform the House of is that I am advised that, although the Order in Council is effective in meeting the main point concerning the conflict of laws, it may not remove every conceivable legal anomaly. We shall need to look at the matter further in due course to determine the extent of any anomalies which may remain and which could require primary legislation to remove them. For example, after compliance with the treaty there could be an offence under the 1919 Act of employing someone wrongly if a government department were inadvertently to appoint an EC national to a post in the narrow public service sense. That does not seem right.

The Government attach great importance to complying with our obligations under EC law. We believe that UK legislation is incompatible with Community law for the reasons I have given and we should put matters right. I therefore commend the order to the House. I beg to move.

Moved, That the draft order laid before the House on 15th April be approved [16th Report from the Joint Committee].—(Lord Waddington.)

Lord Williams of Elvel

My Lords, the House will be grateful to the noble Lord the Lord Privy Seal for introducing a somewhat complex order dealing with a complex situation. From these Benches we fully support the Government in their efforts to comply with Article 48 of the Treaty of Rome. It is certainly right to do so. I understand, and perhaps the noble Lord the Lord Privy Seal can confirm, that had the Government not produced this Order in Council there was a risk that the United Kingdom might be taken to the European Court for violation of Article 48.

As I understand it—perhaps the noble Lord the Lord Privy Seal will confirm this point—the complex problem is the distinction that has been made between public service and civil service. As he said, the European Court has pronounced in a number of judgments on the matter. Is he satisfied that the European Court judgments, taken as a whole, are entirely clear and that there is no obscurity about their definition? They seem to be very complex. Will he tell the House approximately how many posts in the Civil Service. as we define it, are involved, and what level of posts we are talking about?

Perhaps I may now refer to Northern Ireland. Will there be any political sensitivity—I am sure that the noble Lord the Lord Privy Seal will understand what I mean when I use that expression—about opening up posts in. the Northern Ireland Civil Service to other nationalities within the European Community? If so, is there any method that one can employ to avoid such political sensitivity?

Finally, the noble Lord referred to certain possible legal anomalies that might remain, and he said that that might mean primary legislation. I should like to reassure. him that, if primary legislation is necessary and comes before your Lordships' House, the Government will have our support.

Lord Boyd-Carpenter

My Lords, perhaps I may ask my noble friend a question. Like the noble Lord, Lord Williams of Elvel, I am a little confused by the distinction between the public and the civil service. Does the order mean that a European national can be employed in posts in—I use a neutral term—our governmental system which involve knowledge of security matters in the defence sense of the term and political matters in the sense of, for example, service in a Minister's private office? Are we opening up either of those areas of activity to non-British citizens?

Lord Waddington

My Lords, we have not been taken to the European Court, but it follows from what I have said that there would be a risk of our being taken to the European Court if we did not take action in order to conform to Article 48(4).

I agree with the noble Lord, Lord Williams of Elvel. The European Court judgments seem to me to be extremely complex. The only thing that one can say with certainty is that public service within the meaning of Article 48 must be narrower than the Civil Service as we know it in this country. I cannot give a precise answer:o the question of how many posts will be involved. It will be up to us to look at each post and to make a sensible judgment whether it is a post in the public service as defined in the article.

The position in Northern Ireland is extremely difficult because, ironically, the situation there is closer to conformity with European law than our own law. In Northern Ireland citizens of the Republic are excluded from the Civil Service and all European Community citizens are therefore treated alike. In Britain we do not treat all European Community citizens alike because under our legislation—the last important Act was the British Nationality Act of 1981 —we do not treat Republic citizens as aliens. As I understand it, what we are doing today does not suddenly allow Republic citizens access to Northern Ireland Civil Service posts. That matter will also have to be addressed.

I am grateful to the noble Lord, Lord Williams, for his indication that, when it becomes necessary to address those matters, he will give us his co-operation.

I think that I can say with certainty to my noble friend Lord Boyd-Carpenter that it would be odd if a post requiring security vetting, for instance, was not a public service post as defined in Article 48(4). We believe that all the central functions of the Civil Service—that must include, for instance, a Minister's private secretary in his private office—are protected by Article 48(4). I hope that that is of some assistance to my noble friend.

Baroness Seear

My Lords, we on these Benches would support the order if we understood what it meant; but I am even more confused now than I was before the noble Lord spoke. As I understand it, he said that the Civil Service covered a broader span than the public service, but surely it is the other way round.Does not the public service include people who work in nationalised industries? I always thought that it did and that they were regarded as public servants. That makes the term vastly wider than the Civil Service. Does it include, for example, the Post Office? There could be no objection to having a few French postmen around. What are we talking about? Does the term "public service" include nationalised industries? I thought that it did.

Lord Waddington

My Lords, it will be for the convenience of the House if I try to answer that point. There seems to be little doubt that the effect of the European Court judgments is that public service is a very much more narrow concept than the Civil Service as we know it in this country. Perhaps I may try to help the noble Baroness by reading out the full definition as set out in the European Court judgments to which I referred. They refer to those: posts which involve direct or indirect participation in the exercise of powers conferred by public law and in the discharge of functions whose purpose is to safeguard the general interests of the state or of other public authorities and which therefore require a special relationship of allegiance to the state on the part of the persons occupying them and the reciprocity of rights and duties which form the foundation of the bond of nationality". I should have thought that one could think at once of a number of posts in the Civil Service where one would not automatically say that there must be that bond of allegiance between the person and the state in order to guarantee that the person carries out his duties correctly.

Lord Williams of Elvel

My Lords, before the noble Lord sits down, perhaps he will help me on one small matter. In reply to my point about Northern Ireland —I think that I heard him correctly—he said that the order would not affect the prohibition with regard to citizens of the Republic of Ireland being employed in the Northern Ireland Civil Service. I hope that I heard him aright. If that is the case, would it not in itself be in contravention of Article 48 of the Treaty of Rome?

Lord Waddington

My Lords, it may well be; but I do not think that the anomaly could be removed—I stand to be corrected on this point—merely by acting as we have done in this order. A number of matters will be left to be addressed, but I have stated what I think is the correct position with regard to Northern Ireland.

On Question, Motion agreed to.