Crown Employment (Nationality) Bill

Public Bill Committee, 7 June 2004.

Standing Committee C

Crown Employment (Nationality) Bill

Roger Gale (Conservative, North Thanet)

Members of the Committee will know that I have accepted manuscript amendments for debate later this afternoon. That is not a precedent. The reason is straightforward; we have been in recess, and it is wholly reasonable to debate those amendments this afternoon so that delay and extra cost can be avoided.Clause 1 Removal of existing nationality requirements

Clause 1 - Removal of existing nationality requirements

Andrew Dismore (Labour, Hendon)

Thank you, Mr. Gale. Welcome to the Chair. You may recall that I approached you when I was trying to recruit Conservative Members. You said that you did not serve on Committees, but chaired them. Well, I got you in the end, one way or another.

The clause is the meat of the Bill, the purpose of which is to remove the plethora of anomalies in the law on civil service employment. The clause would remove the existing rules, which clause 2 would replace with more sensible arrangements. The rules restricting the employment of foreign nationals by the Crown have roots that 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, should be capable of enjoying any office or place of trust under the Crown. That prohibition has been amended over the years, and does not apply to Commonwealth citizens, to citizens of Ireland 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. The term ''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 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, under which prohibitions were relaxed so that aliens could be employed if they were appointed in a country outside the United Kingdom, the Channel Islands or the Isle of Man in a capacity that appeared to the Minister to be appropriate for aliens, or if they were employed in accordance with the certificate issued by a Minister with the consent of the Minister with responsibility for

the civil service. There must be no suitably qualified UK nationals available to do the work, or the alien must possess exceptional qualifications or experience.

The European Communities (Employment in the Civil Service) Order 1991 amended the 1955 legislation 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 posts that are public service posts within the meaning of the European Community treaty. Section 2(1) of the European Economic Area Act 1993 extended the rights of nationals of member states of the European communities to nationals of member states of the European economic area.

Against the background of a possible legal challenge at 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. The civil service management code was amended to restrict the employment of Commonwealth and Irish nationals in posts reserved for UK nationals.

The effect on civil employment under the Crown in the UK is that Commonwealth citizens, British protected persons and nationals of member states of the EEA may be employed only in non-public service reserved posts. Nationals of all other countries may be employed in the UK in non-reserved posts only if an exemption certificate has been issued. Although 75 per cent. of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals, the remaining 25 per cent., which require the special allegiance of public service posts, are reserved entirely for UK nationals—far more than is operationally necessary, but unavoidable because of the current rules.

The anomalies are best illustrated by example. In my constituency, as in many others, there are long-standing communities from all over the world, many of whose members are highly skilled professionals and people who were senior public servants in their home countries but who fled persecution from dictatorships many years ago. An Afghan recently came to my surgery. He was a senior civil servant before all the troubles arose in Afghanistan and he had to flee. Such people, and their children, who may now know no other country, are entirely barred. There are large Chinese and Japanese communities in Hendon, and many UK citizens are married to people of those nationalities. Assuming that they retained their citizenship, those people would be barred from jobs in the Department of Trade and Industry and could not be used to promote British trade overseas. The anomaly is that if their spouses were French, rather than British, they would not be barred from working for the DTI. That discriminates against the spouses of UK nationals as opposed to those of other European Union nationals. That is an appalling anomaly.

A Turkish Cypriot, for example, is eligible for non-restricted posts, but a Turk is not. Abu Hamza is a UK national and theoretically, if he were not in jail awaiting extradition, he could work for the civil service. I do not suppose that he would get a job, but

one never knows. On the other hand, the American national widow of a British victim of 11 September is entirely excluded from Government employment.

The most recent anomaly that came to my attention was from Employability Forum, a voluntary organisation that promotes the employment of refugees and asylum seekers with permission to work in the UK. It recently developed a project with Jobcentre Plus in the west midlands aimed at increasing the uptake by refugees of Jobcentre Plus services. It wanted to recruit a refugee to promote the work only to find that it was not possible for him to be employed by Jobcentre Plus, obviously making the project potentially less effective. A way round it was found involving all sorts of complicated secondment arrangements, but that is not satisfactory.

Clause 1 tackles those bizarre and discriminatory anomalies by sweeping away the existing complex interlocking legislation and replacing it by 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. I urge the Committee to agree that it should stand part of the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I welcome you to the Chair, Mr. Gale. I assure the hon. Member for Hendon (Mr. Dismore) that I will try to be as brief as possible. As a result, I will split my comments in two: I shall deal first with the generality of clause 1 and secondly with my new clauses.

I listened carefully to what the hon. Gentleman had to say and I am sympathetic towards some of his aims. There is no doubt that our present system contains a number of slightly bizarre archaisms. He highlighted some of the anomalies that may result. Nevertheless, there is a foundation behind the rules, which seems to make perfectly good sense. A person employed as a civil servant must be seen to be capable of being a servant of the Crown and be able to discharge the duties to the Crown loyally and through that to the fellow citizens whom he is there to serve within the United Kingdom. My personal view is that that probably has more to do with a person's attitude than their nationality.

The hon. Gentleman made the point that Abu Hamza would make an unsuitable Crown servant. I am rather inclined to agree, irrespective of his nationality, even though I know that the Home Secretary is trying to deprive him of it. Equally, I can see that the public should have complete confidence that those who make decisions that can directly affect the way that the state deals with their fellow citizens act impartially and certainly without any motive of advantage or attachment to some other country that they might also be seeking to serve.

That point needs to be considered. Otherwise, there will be a danger that the public will perceive that people are taking jobs as civil servants simply because it is a job without recognising that a high standard of conduct is required when discharging it. They will attach xenophobic views if it turns out that the person who has failed to discharge those functions correctly is a foreign national who has been retained by the state itself. That is the basic issue. It is not one that the

Committee can simply gloss over and say that in the 21st century it does not matter any more. It does matter. That is why the Committee needs to consider it.

That said, I accept that the way that this has all come about, possibly as a result of the Act of Settlement, is slightly odd. The Act of Settlement was drafted as it was to prevent the King from having foreign advisers. That was regarded at the time, particularly in light of what had happened prior to that Act, as an important thing to do.

My background covers two countries: this one and a foreign one. It is right that dual nationals—which technically I could be, although I have never taken advantage of that opportunity—are in no way debarred from applying for a United Kingdom civil service job, even though they may have conflicting loyalties. I am even more mindful of the fact that, particularly on the European continent, there is a long tradition of foreigners taking up public service in another state. There is nothing new or modern about that. Anyone who reads history works on Russia in the early 19th century will know that the Russian army was full of foreign generals commanding it and that the Russian civil service was full of foreigners working in it. Indeed, I have a Grieve ancestor who was the physician to the Empress of Russia in the late 18th century. I am not sure that that was a civil service post, but it was certainly paid for by the Russian crown and I do not think that his British nationality was thought to make a bean of difference.

I shall give way to the hon. Member for Ealing, North (Mr. Pound). I want to give him an opportunity to have his pennyworth before I resume my place.

Steve Pound (Labour, Ealing North)

It is always an honour for a Pound to have a pennyworth. I must say that I was swept away by the hon. Gentleman's glorious tide of 19th century Russian history. I had not realised that the number of advisers to Russian empresses included one of his ancestors.

In the hon. Gentleman's earlier comments about a conflict of loyalty, did it occur to him that many thousands of Irish, Indian and Nepalese soldiers have fought and died for this country, with no problem of conflict of loyalty? Does he not feel that there is possibly an element of double standards?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. The irony of the situation for the Irish was that, when the Irish Free State was set up, initially with the United Kingdom monarch remaining as King of Ireland, the matter was simply brushed under the carpet. It was a sensible and pragmatic British compromise. We simply decided to treat it as if it had not happened. To facilitate the continuing employment of Irish nationals in Britain, we decided not to treat Ireland as a foreign country. We repeated that in the Ireland Act 1949.

Subsequently, as legislation in 1996 demonstrates, there has been a move away from that position. Irish nationals enjoy the benefits of EU citizens, but their exceptional position does not now exist. Until 20 years ago, someone could have been born in Ireland with

parents and grandparents who had never set foot in the United Kingdom, but if they had gone to Belfast and asked for a passport, they would have got one.

I take the hon. Gentleman's point, but I hope that he listened carefully to my argument that my proposals are in part to provide the necessary reassurance that we are not being cavalier with the requirements of loyalty that come with being a civil servant. I am comfortable with the fact that many foreigners coming to a country and taking employment in its civil service will be outstandingly loyal in the discharge of their duties. I have no xenophobic view about that. If I were to go to a foreign country and it sought my service in helping to run it, I hope that I would be outstandingly loyal to that country. However, considering the powers that civil servants have in the discharge of their responsibilities, the public are entitled to reassurance that civil servants understand the nature of the function that they have taken on, which is not just any old job.

Michael Jabez Foster (Labour, Hastings and Rye)

Is that to do with nationality or anything other than simple loyalty and good faith? We have seen many recent examples of civil servants, some of whom have been encouraged by Her Majesty's Opposition, being extremely disloyal. Is it not an issue of individual loyalty, and if there is to be a loyalty test, should it not cover everyone rather than only some based on their place of birth?

Dominic Grieve (Conservative, Beaconsfield)

I confess that I am a little shattered by the hon. Gentleman's last comment that the Conservative party has been encouraging civil servants to be disloyal, because I cannot think of a single instance of that in recent months. If he is alluding, as I think that he might be, to civil servants having sent us material in brown envelopes that showed that the Government had not told the complete truth about immigration matters, all I can say to him is that, first, we did not seek or solicit that material; secondly, we would never have done so; and thirdly, when we did get it, we did not make use of it until we were satisfied that it was overwhelmingly in the public interest that it should be disclosed. The hon. Gentleman's own party has made use of leaks from civil servants, and that is a matter for the individual civil servant concerned. In this case, I would also point out that, if my recollection is correct, the civil servant concerned is praying in aid the Freedom of Information Act 2000 and other Acts, pointing out that he had a public duty to disclose that material. I do not know what will eventually come of that, but that is what he has said.

To return to the point that I was making and picking up on what the hon. Gentleman has said, civil servants have a serious responsibility to discharge. It is not just another job. I do not mind what nationality they are,

but I think that it is important that they should understand that what they are doing is becoming a Crown servant, serving the citizens of this country. That is the point that should be reinforced.

Douglas Alexander (Labour, Paisley South)

I echo the warm words of my hon. Friend the Member for Hendon in welcoming you to the Chair, Mr. Gale. I am tempted to follow the contribution of the hon. Member for Beaconsfield (Mr. Grieve) by relating the family legacy that I carry into the Committee—which is that the Garvines of Ayrshire, from whence I came, were the personal physicians to the Russian monarchs in the dim and distant past—but I fear that if I pursue that line, it may turn out that we are related. So, in the interests of either of our careers, I will not do so. Perhaps I should keep my remarks to the subject in hand.

The Government support the clause. As my hon. Friend the Member for Hendon pointed out, it removes the restrictions on nationality grounds for

''any person from being employed or holding office in a civil capacity under the Crown.''

We are committed to a civil service that reflects the diversity of the public whom it seeks to serve. The clause provides an opportunity for the Government to get rid of outdated restrictions that have no place in a modern democracy, and we are committed to improving diversity and opportunity.

Andrew Dismore (Labour, Hendon)

I respond to the hon. Member for Beaconsfield by welcoming his comments that his reservations have nothing to do with the nationality of the individuals concerned. The point was made earlier that this is an issue not of nationality—whether individuals are UK or foreign nationals—but of loyalty across the board. There is no question of employing civil servants who are not capable of doing the job and loyally performing their duties. There is no suggestion in the Bill that we should depart from the normal civil service recruitment processes. Nor is there any suggestion of positive discrimination, or that we should depart in any way from the normal civil service code of conduct relating to appointment. The civil service code and the normal recruitment rules adequately deal with the hon. Gentleman's reservations.

I should add that we are not talking about the armed forces, although there are those either in or on secondment to the armed forces who are non-UK nationals. One need only consider the Brigade of Gurkhas, which has performed long and loyal service to this country. However, that is not what the Bill is about. It has to do with correcting anomalies, and I hope that clause 1 will find favour with the Committee.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill

Clause 2 - Power to impose new nationality requirements

Andrew Dismore (Labour, Hendon)

The clause is the mirror image of clause 1 in that it gives Ministers the power to make rules in respect of the nationality requirements of certain categories of post, which I envisage are those where it is clearly necessary in the national interest for a job to be reserved for a UK national. Those would account for about 10 per cent. of civil service posts. It is expected that the Bill would open up about 90 per cent. of posts to selection on merit, regardless of nationality. That would enable us to build a civil service that reflects the diversity of the society that it serves.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3 - Repeals and revocation

Andrew Dismore (Labour, Hendon)

Clause 3 follows on from the remarks that I made on clause 1; it simply deals with the outstanding repeals of parts of the legislation to which I referred in clause 1.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4 - Short title, commencement and extent

Andrew Dismore (Labour, Hendon)

This straightforward and normal provision relates to the title, commencement dates and application of the Bill.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.

New Clause 1 - Requirement of oath or affirmation

Dominic Grieve (Conservative, Beaconsfield)

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

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss new schedule 1—Oath and affirmation—

The form of oath for the employment of persons in a civil capacity under the Crown by virtue of this Act is as follows—

I swear by Almighty God (do solemnly and sincerely declare and affirm) that I will faithfully discharge my employment (office) in a civil capacity under the Crown and serve the Crown without fear or favour to any other.'.

Dominic Grieve (Conservative, Beaconsfield)

I have not sought to lengthen the debate on the other clauses, and we can wrap up this debate by reference to clause 1 and to the new clause and new schedule.

At the outset, I should say that the new clause is an imperfect document. I did my best in a rather short period to draft something for the Committee, and it serves as a probing amendment. I am conscious that those in the office have changed the new clause in one distinct way. They did so for good reasons because they felt that it might have been unsuitable for consideration as originally drafted. The change was made by adding the words:

''by virtue of this Act''.

That has the effect of confining an affirmation of loyalty as a Crown servant to those who would be affected by the Act, thereby discriminating between those who were foreigners seeking to take advantage of the Act, and those who were not. I say to the Minister and the hon. Member for Hendon that that was not my original intention. I would have preferred a more general, short affirmation of loyalty and discharge without fear or favour of the office of a civil servant applying to anyone who becomes a Crown servant, and I may return to dealing with that matter differently at a later stage.

I am aware that many Crown servants have to sign the Official Secrets Act, but that is a slightly different case, and does not deal with the issue that the public would want addressed. Those who are becoming Crown servants will serve their fellow citizens, and they should by some small affirmation make it clear that they understand the nature of their work and the duty that it places on them. I cannot help thinking that many people becoming Crown servants might welcome such a process. It is not onerous in any way, and if someone were to find it so, it would raise a question mark in my mind as to why they did.

I tabled the new clause because I thought it met the objectives of the hon. Member for Hendon while dealing with the slight reservations I expressed when we discussed clause 1. I am mindful of the fact that the drafting of the clause—which may be the only way it can be drafted for our consideration—has the effect of restricting it to those who are taking advantage of the provisions of the Act. I say candidly that that is not a satisfactory situation, but as it is the only way I could bring the matter before the Committee, I thought that it was still right to do so.

I shall be interested to hear the Government's response from the Minister, because it is important—whether we are dealing with someone working in a benefits office making decisions on who gets what or whoever—that people should have a sense of confidence that Crown servants understand the importance of their role, as it affects the rights of their fellow citizens.

Andrew Dismore (Labour, Hendon)

I am pleased that the hon. Gentleman has recognised that there is potential for discrimination between classes of civil servant. One of my main concerns was that there could be a series of different types of oath. It is important to point out that the proposal is not an oath of allegiance to the Crown. Having said that, there is a series of potential anomalies about who should and should not swear some sort of oath of allegiance.

Karen Buck (Labour, Regent's Park and Kensington North)

Does my hon. Friend accept that such a requirement should also be applied to foreign nationals working, for example, in the national health service or local government? Admittedly, they are not working for the Crown, as strictly defined, but they should be covered by the same expectations and affirmations of loyalty as set out in the Bill.

Andrew Dismore (Labour, Hendon)

My hon. Friend makes an important point. Non-UK nationals deliver services on behalf of the state in the broadest sense, whether nationally or locally, but the rules would apply only to civil servants employed by central Government. UK nationals by birth do not have to take any oath of allegiance, and would not have to take the proposed oath if they worked for the civil service. However, someone naturalised to UK nationality would have to take an oath of allegiance. It is against the attempt to create an inclusive civil service to distinguish between the two classes, and it could create confusion.

The new clause is not necessary. The civil service code, which applies to every civil servant, makes it clear that:

''Civil servants are servants of the Crown. Constitutionally, all the Administrations form part of the Crown and, subject to the provisions of this Code, civil servants owe their loyalty to the Administrations in which they serve.''

Section 4.1.1 of the civil service management code states:

''Civil servants are servants of the Crown and owe a duty of loyal service to the Crown as their employer. Since constitutionally the Crown acts on the advice of Ministers who are answerable for their departments and agencies in Parliament, that duty is, subject to the provisions of the Civil Service Code, owed to the duly constituted Government.''

It is clearly part of any civil servants' contract and their terms and conditions of employment that they accept the matters that the hon. Member for Beaconsfield has raised. Those strict and clear provisions could not be more obviously set out than in the civil service code and the management code. Therefore, the new clause is otiose and I urge the hon. Gentleman to withdraw the motion.

Sir Sydney Chapman (Conservative, Chipping Barnet)

I shall speak only briefly, because I think that my constituency neighbour, the hon. Member for Hendon, posed the question to my hon. Friend the Member for Beaconsfield exactly as I would have done. The hon. Member for Regent's Park and Kensington, North (Ms Buck) asked to what extent the proposal should apply and whether it should apply to NHS employees as well as to Crown servants as defined by the Bill. However, there could be a form of discrimination if certain people who are allowed to

serve the Crown have to take an oath or affirmation: either everyone or no one should be forced to do so. That is a probing point and I would be interested to hear the views of my hon. Friend the Member for Beaconsfield and the Minister.

Douglas Alexander (Labour, Paisley South)

The Government cannot accept the new clause tabled by the hon. Member for Beaconsfield. He spoke with candour about some of the difficulties he faced and about the drafting changes. It is an important subject that is worth discussing, notwithstanding the fact that my hon. Friend the Member for Hendon has covered much of the ground that I shall cover.

Section 4.1.1 of the civil service management code states:

Of course, citizens of the European economic area and those employed under the aliens' certificate under the Aliens' Employment Act 1955 are currently employed in a civil capacity under the Crown by virtue of the exceptions made for the free movement of workers under European Community law. Commonwealth citizens are not required to swear any such allegiance by virtue of their status when taking up employment or holding office in a civil capacity under the Crown.

Our debate has got to the nub of the issue. The hon. Member for Beaconsfield may believe that the aims that he wishes to achieve with his new clause have merit, but I am not convinced that the Bill is the statutory vehicle through which to achieve them. If he still wants all civil servants to take an oath or affirmation, regardless of nationality, perhaps he should consider another vehicle by which he may bring that about.

Dominic Grieve (Conservative, Beaconsfield)

This has been an interesting debate, and it has been educational to follow hon. Members' reasoning, particularly that of the Minister.

The Minister may be right to say that the Bill is not the vehicle with which to achieve my aims. Indeed, I had to change the wording of the new clause in a way in which I did not want because I was told that it might not be a satisfactory vehicle to deal with the issue of an oath or affirmation. That is unfortunate—I might return to the charge at a later stage in the Bill's proceedings—because the Bill, which, I accept, previously contained a host of anomalies, seeks a radical overhaul without considering the total picture. What the Minister proposes would mean that we would be deprived of the opportunity of looking at the total picture, while carrying out radical change. That is not entirely satisfactory.

It would be equally unsatisfactory—I agree with my hon. Friend the Member for Chipping Barnet (Sir Sydney Chapman) on this—to require certain types of civil servants to make affirmations, while others make

none. I accept that entirely. That is not how the new clause and new schedule were originally drafted. The words

''by virtue of this Act''

did not feature in the drafts that I presented, but the Clerks, with their customary courtesy, assisted me by telling me that, as far as they could see, making such a change would be the only way in which this matter could be brought before the Committee. I will withdraw the new clause for now, but I do not think this matter slight or inconsequential. I would not have raised it if I did. There is an issue of concern, which goes to the matter of public trust.

The hon. Member for Regent's Park and Kensington, North spoke about the difference between a civil servant and someone who works for the NHS. I agree that there are anomalies, but we have a legal definition of who is a civil servant: someone who is a direct servant of the Crown. It is by virtue of that that certain responsibilities set out in the civil service code are spelled out so clearly.

Public reassurance and understanding would be enhanced if the public thought that the Government's planned changes would lead to more diversity in the

people employed without the previous restrictions—subject, of course, to ministerial ability to provide certain restrictions in some cases. It would greatly assist public reassurance if there were some affirmation when people are taken on. I shall be disappointed if it turns out to be impossible to deal with that in this Bill, because the opportunities for doing it hereafter may be somewhat limited until we have another Civil Service Act, and I cannot imagine that the Minister is about to tell us that such a weighty piece of legislation is going to land on our lap. I suspect that most politicians would think that such legislation might best be avoided if possible, as it would spend many hours in Committee. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Schedule 1 agreed to.

Roger Gale (Conservative, North Thanet)

I congratulate the hon. Member for Hendon on successfully piloting his Bill though Committee.

Bill to be reported, without amendment.

Committee rose at four minutes past Five o'clock.