rose to move, That the draft order laid before the House on 25 January be approved. 7th Report from the Statutory Instruments Committee.
The noble Lord said: My Lords, the Civil Service nationality rules have a long and complex history and it may help if I begin by setting out the background to the interplay between the relevant legislation and our European obligations. The legislation stems initially from the Act of Settlement 1700 and was reinforced 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”.
The British Nationality Act 1981 defines an alien 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. This was replaced by the Aliens’ Employment Act 1955 which provides that,
“an alien may be employed in any civil capacity under the Crown”,
either to posts outside the UK or exceptionally in other circumstances, under cover of an aliens’ certificate signed by the responsible Minister.
The European Communities (Employment in the Civil Service) Order 1991 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 within the meaning of Article 39(4) of the EC Treaty.
Civil Service posts are of a varied nature. Most of them, such as those responsible for general administration and service delivery, do not require any special bond of allegiance to the state and do not need to be carried out by a UK national. These are known for the purposes of recruitment and appointment as “non-core” or “non-reserved” posts. On the basis of a survey conducted in 2005, about 82 per cent of Home Civil Service posts are designated as non-reserved and are open, in addition to UK nationals, to citizens of the Commonwealth countries, EEA nationals of other member states and certain members of their families who are non-EEA nationals, and nationals of other countries who are granted an aliens’ certificate in accordance with the provisions of the Aliens’ Employment Act 1955. The circumstances under which a certificate under this Act may be granted are strictly defined so that in recent years the number of aliens employed at any one time has been very small. For example, during 2005-06, only 67 aliens’ certificates were in force throughout the Home Civil Service.
Article 39 of the EC treaty guarantees to workers from each member state the right freely to reside and take up employment in other member states. However, Article 39(4) provides an exception to these free movement provisions and enables each member state of the European Union to reserve for its own nationals those posts which constitute “employment in the public service”. While the treaty does not provide a definition of these posts, the term has been defined by the European Court of Justice to mean broadly those posts which involve direct or indirect participation in the exercise of powers conferred by public law and in duties the purpose of which is to safeguard the general interest of the state or other public bodies and which therefore require a special allegiance to the state on the part of the persons occupying them.
Moreover, additional restrictions have had to be placed on the nationality of those who can be appointed to “public service” posts. Until 1 June 1996 these posts were also open to Irish citizens on the grounds that they were not statutorily barred from employment in any post in the Civil Service. However, the rules were changed on that date by amending the Civil Service management code to exclude all future new entrant Irish nationals from employment in these posts. This was done to ensure that Irish nationals were treated in the same way as nationals of other EU member states as regards access to Civil Service posts.
The Cabinet Office guidance on the nationality rules lists a number of categories of posts to assist departments and agencies in assessing whether or not a post should be reserved. The list was first assembled in 1992 and has remained unchanged since 1996. For example, one category requires, without qualification, that all posts which are concerned with revenue collection and assessment should be reserved for UK nationals. One effect of this is that Irish and other EEA nationals who enter HM Revenue and Customs at an administrative level are prevented from taking up a promotion within the department as the more senior post is reserved for UK nationals only. The non-specific nature of the current guidance has required a similar approach to be applied to the Customs side of the department, with the result that of the 97,000 posts—or 18 per cent of the total number of posts in the Home Civil Service—which are reserved for UK nationals only, 79,000 are to be found in HM Revenue and Customs. This is much more than is operationally necessary.
The nationality rules have been a source of much frustration throughout the Civil Service for many years as they are complex and administratively very difficult to apply. The long-term aim of the Government has been to remove the statutory restrictions on employing aliens in the Civil Service and to replace them with a general power to make rules imposing requirements as to nationality which would, of course, have to be exercised compatibly with the EC treaty obligations and in compliance with EC law. This can be achieved only through primary legislation. Earlier attempts by this means have met with little success.
Given the difficulties in bringing forward primary legislation, the Cabinet Office has been considering alternative legislative vehicles for making the changes. Section 2(2) of the European Communities Act 1972 presents an opportunity to take forward change to the current legislation which, while not as wide-ranging as those envisaged under primary legislation, would allow departments and agencies to open up a much larger percentage of their posts to non-UK EEA nationals. This will greatly benefit the UK Civil Service, which will be able to employ the best people based on selection on merit through fair and open competition from a much wider pool of talent.
The draft order, which has been drawn up after an extensive consultation exercise within government and with the support of the Council of Civil Service Unions, deals, therefore, with a change in the status of certain posts in civil employment under the Crown, including the Home Civil Service and the Northern Ireland Civil Service, to make them more accessible to nationals of the European economic area who are already eligible to apply for the majority of posts. I stress that it does not deal with immigration or work permits and does not affect the requirements for those non-UK nationals specified in the draft order to obtain leave to remain and to work in the UK before they can take up employment.
The draft order will apply to the whole of the United Kingdom. Article 2 amends the Aliens’ Employment Act 1955 to provide decision-makers with a more detailed test to be applied when determining which posts should not be open to EEA nationals. As the Aliens’ Employment Act 1955 does not apply to Northern Ireland, an amendment to the European Communities (Employment in the Civil Service) Order 1991, at Article 3 of the draft order, achieves the same effect for Northern Ireland.
With regard to Northern Ireland, at a practical level, with a considerable pool of relatively local non-UK talent on its doorstep, it is organisationally undesirable for the Northern Ireland Civil Service routinely to have to turn away suitably qualified people on grounds of nationality. This is a frequent occurrence and, from an efficiency perspective alone, the Northern Ireland Civil Service would be very keen to see a change which allowed it greater flexibility in recruitment.
I wish to comment on security, which is, of course, important to the Civil Service. The draft order will have no effect on security requirements. All persons taking up employment or holding office in a civil capacity under the Crown will continue to be subject to the usual security checks governing such appointments. I should also make the point that nationality requirements are not the same as security requirements, which can be imposed on any potential recruit, irrespective of nationality. There is an occasional misunderstanding that security check clearance indicates that the post must automatically be in the public service category. That is not the case. Security clearance may be required for public service or non-public service posts. The main purpose of vetting is to provide an assurance of the reliability and trustworthiness of individuals, factors that are not necessarily connected with their nationality.
I must emphasise that it will remain a matter of policy to restrict access to certain posts to UK nationals where that is strictly necessary, and the draft order provides revised criteria for doing so. In order to allow departments and agencies to reserve posts in future, the draft order specifies a test that must be met. That test is believed to have a number of advantages over the current guidance, which has been in place for so long and has become a source of so much confusion and uncertainty. First, it sets out clearly the categories of posts that may be reserved. Secondly, a tighter and clearer definition in the order will ensure greater consistency across departments and agencies. Thirdly, except in relation to posts in the security and intelligence services, which will continue to be reserved, Ministers must consider the justification for reserving a post that falls within the other categories set out in the order; that is, posts in the Foreign and Commonwealth Office, Her Majesty’s Diplomatic Service and the Defence Intelligence Staff.
It has also been necessary to include certain broader categories in the definition of “reserved posts”. They are set out in the draft order as posts whose functions are concerned with access to intelligence information received directly or indirectly from the security and intelligence services or access to other information that, if disclosed without authority or otherwise misused, might damage the interests of national security or might be prejudicial to the interests of the United Kingdom or the safety of its citizens. A final category includes posts whose functions are concerned with border control or decisions about immigration.
The draft order is not being made in response to any new European legislation or directive. Instead, its purpose is to increase the efficient running of the Civil Service by making the criteria for reserving posts more specific and more relevant to the business of departments and agencies in response to the evolving Civil Service agenda.
I apologise for the length of this introduction, but it will be recognised how significant this order is. We looked at primary legislation as a possibility for dealing with this issue, but we could not expedite that in reasonable time. Accordingly, this order is before your Lordships for consideration today, and I beg to move.
Moved, That the draft order laid before the House on 25 January be approved. 7th Report from the Statutory Instruments Committee.—(Lord Davies of Oldham.)
My Lords, I thank the Minister for explaining the order so thoroughly—and at such speed. We support in principle what is being done here. One of the main provisos is that we need to be satisfied that there are adequate safeguards of the important national interests of security, trade and diplomacy. I will return to those in a moment.
I note from Monday’s debate in another place that the Minister there failed to answer any of the questions posed by my honourable friend the Member for North-West Norfolk, I think because the latter had said at the outset that he was unlikely to be able to stay for very long because he needed to be elsewhere, and the Minister’s civil servants had perhaps assumed that they could therefore subsequently produce answers for him in writing. To refresh the Minister’s memory, the questions concerned the following issues: first, the number of Irish nationals prevented, as the Minister said, from joining our Civil Service since 1996, about which the noble Lord, Lord Trimble, asked a related question recently in your Lordships’ House; secondly the number of Turkish nationals affected by the Ankara agreement; thirdly, the extent of the problem referred to in the Explanatory Memorandum of the recruitment of staff to reserved posts, causing difficulty for the efficient running of the Civil Service; fourthly, the consultations that had taken place with the Civil Service unions; finally, the stated proportion of the 5 per cent of posts reserved for UK nationals that was to be in particularly sensitive areas. I would be grateful to the Minister for answers on those points, since he has now had a couple of days’ notice of them.
I am sure noble Lords would agree that we have to be sure that our nationals are representing us on key issues. Will the Minister outline the safeguards that will be put in place to ensure that foreign nationals, employed in the Civil Service quite properly within the spirit and letter of the order, will not be able to get into a position such that they come into possession of information which, if disclosed without authority or otherwise misused, might damage the interests of national security? Expanding upon the question of my honourable friend in the other place, to which I referred earlier, will the Minister list the particular roles that will remain reserved, or, alternatively, explain who will determine whether a post is reserved or not?
The Explanatory Notes say that consultation on the order within the Civil Service showed that there were “no significant objections”. That rather implies that there were objections, but that the drafter considered them to have been insignificant. What objections to the order were made during the consultation within the Civil Service?
How many foreign nationals, if any, will be employed by the Immigration and Nationality Directorate? If there are to be any, what will their roles be? Can the Minister confirm that no foreign national working in the Civil Service has, within the past 10 years, been disciplined for allegedly acting in a way that would risk harming the interests of the UK or its citizens? Finally, and importantly, what reciprocal arrangements do the Government propose should be made to ensure that UK citizens are similarly enabled to work in the civil services of other EU states?
My Lords, it is the last of those questions that I wish to follow. I start by welcoming the order. I appreciate that there have been some sensitivities in Northern Ireland on this issue, but if we are moving Northern Ireland back to normality in every single sense of the term, the normal arrangements whereby nationals of other EU states, including the Republic of Ireland, have access to the British Civil Service under these terms have to be recognised.
I congratulate Her Majesty’s Government and their predecessor on the openness with which we have treated the nationals of other EU states, following on from the employment of many Commonwealth nationals within the British Civil Service. Two years ago I was rather shaken, when I had been invited to give a seminar with some others to a group within Her Majesty’s Treasury on social policies in European Union member states, to find that I was addressing a group that included a British official of German nationality and one of Swedish nationality. I am told that when Gordon Brown invited Ministers from several other member states to a conference, the Spanish Finance Minister completely failed to understand how the native Spanish speaker who was looking after him could be a member of the British Civil Service, as it is so completely unthinkable that the Spanish Government would behave in the same way.
I want to encourage Her Majesty’s Government to ensure that this order is applied properly by other member states. I declare a particular interest: British professors are not officials, but German professors are, with all the dignity that that brings to them—I assure the Minister that they carry it very strongly; far too strongly, in my opinion—which means it is extremely difficult for a non-German national to become a full professor in a German university. That is absurd. I wish the Government would be active in exposing the many barriers that cover a much larger area in other countries than in Britain, because those countries are rather more statist, as well as in poking fun at other Governments on this and pointing with pride to our record. This is one of the many areas in which in practice we are much more European than some of our continental neighbours, although they still seem to think that they are somehow more European than us.
My Lords, I regret that I cannot give the order the same welcome as others have done so far. There are a number of reasons for that.
I want to make it very clear that I do not have a prejudice against the other folk who live on the south of the island where I reside, nor am I anti-European to the extent that I would distrust individual European neighbours. In another place, I represented a constituency with a large population of Portuguese—East Timorese, in fact—Lithuanians and Poles. Both individually and through my party, we have managed, I think quite successfully, to integrate these people into our community. I say that in case, looking at an Ulster Unionist, the Minister may be inclined to think, “That guy is somewhat xenophobic”; I am not. I know that the Minister would never suggest such a thing.
The order would have a serious impact on Northern Ireland, which is emerging from the fog of distrust, from years of violence and years of looking across a land frontier—this leaves Northern Ireland unique in the United Kingdom—at those near neighbours whose first loyalty must be to the Irish Republic. I am even more concerned in so far as my noble friend Lord Trimble asked the Minister about this very issue on 30 January. He was assured by the Minister that Permanent Secretary posts, for one, would be reserved posts, so there would be no question of “parachuting in” people from the Irish Republic. He recognised the implications for Northern Ireland; he knew what was at stake for the civil servant; but he recognised that,
“certain posts and functions, such as the Security Service, will necessarily be reserved for British nationals”.—[Official Report, 30/1/07; col. 121.]
That answer appeared reassuring until 14 February. The Minister had obviously done his homework and had second thoughts because he then wrote to my noble friend Lord Trimble saying:
“However, the draft Order in Council sets out categories of posts which are capable of being reserved. It would therefore be a matter for the Secretary of State to take the decision as to whether a particular post should be reserved”.
I am sure that the Minister knows the letter to which I refer. I will not read more of it, but he will understand my concern at this apparent indecision. Nobody has initially been clear whether there is a protection that we would require and hope for in Northern Ireland.
When we last had the Assembly, somewhere around 1999 or 2000—I am not sure of the exact date—on the recommendation of the then head of the Northern Ireland Civil Service, Permanent Secretaries were reclassified, as were other senior posts, and defined as reserved posts. It was very clear. The head of the Civil Service was not an old dyed-in-the-wool unionist like Ken Maginnis. He was a member of what we used politely to refer to as the minority community. He was a very fine servant of Northern Ireland, and he was from the Catholic community—from those whom one might expect automatically to have some sympathy with Irish republicanism. He realised the implications of complicating life in a place emerging from violence and distrust by, as my noble friend Lord Trimble described it, parachuting in senior civil servants from the Irish Republic.
It is all very well to say that we will leave it in the hands of the Secretary of State. I would prefer not to personalise this, but I am afraid that to some extent I must. On what basis would the Secretary of State—or any successor Secretaries of State, if it came to that—make the judgment? I have just seen my Secretary of State apologise for the slave trade in Northern Ireland. Perhaps somebody should have told him before he apologised on my behalf that Northern Ireland was never engaged in that trade. In fact, in 1786 or thereabouts, before there was repealing legislation, the businessmen of Belfast came together—somebody had raised the prospect of a profit to be made—and were united across political and religious divides, and stipulated that the slave trade would not be brought to Belfast. So who makes a judgment that the Secretary of State apologises on my behalf? Who makes a judgment that, not content with that, he should go where I hope to go on Saturday, to Croke Park, to the English-Irish rugby match? As I look around the Chamber I know that I will be shouting for a different side from the noble Lords here present. Why should I go under the cloud that my Secretary of State is going to make a judgment that he will apologise for an event that happened in a war situation 87 years ago?
Nobody has apologised to me for the pupils I taught in primary school who were murdered. Nobody has apologised to me for my teacher colleagues who were murdered. Nobody has apologised to me for my rugby mates who were murdered or for my neighbours. I do not want to personalise this any further, but, with that sort of presumption, I have to ask, “What is the motivation of my Secretary of State? Is it Northern Ireland or is it some future ambition?”. I will leave it at that.
I cannot hope to have confidence, nor will any of my colleagues, nor will people from the other tradition in Northern Ireland, that we will be properly represented when it comes to making a decision on this issue. I hope that the Minister will give me some greater reassurance than that the decision will be left in the hands of a single individual.
National interest is not just about my police, my security or criminality and those things that we have had to endure in Northern Ireland for a number of years. National security is about jobs, inward investment and about how we attract it. That does not fall within the scope of security or intelligence, although I suppose how we attract the packages that we put together is a form of intelligence. We all know that our current Secretary of State has been ensuring that the integrity of Northern Ireland investment packages is compromised by the way in which way we have to act. Let me put it clearly: we cannot send an economic trade delegation abroad on its own; it has to be accompanied by someone from the Irish Republic. That would be fine if we were fighting on a level playing field, but we are not doing that. We have a much higher corporation tax than in the Irish Republic. There are other aspects of economic life that are totally different, hence it is impossible to have duplication of interest—it is conflict of interests, if one is to be honest.
I do not want to detain the House any longer. I hope that the Minister will reassure me that the interests of the people of Northern Ireland will not be sold short because we are bound to have people parachuted in who will, however honourable, still have that conflict of interest that will affect our community.
My Lords, I am grateful to all noble Lords who have participated in the debate, which ranged a little more widely than I had anticipated, but was none the worse for that. I hope that I can respond to the considerable number of questions that have been posed to me while indicating that this is an important issue subject to proper scrutiny.
I want to emphasise to the noble Lord, Lord De Mauley, that my opening remarks were protracted in order to do my best to reassure the House on certain matters, particularly on consultation. I hear what he says, and there is always a judgment about whether reservations that have been expressed may be significant or insignificant. However, I assure the noble Lord that, when consultation is carried out with the Civil Service unions on a matter of such importance to them—the criteria for posts—and when we say that there was broad assent to the concept of the order and what it implies, I say that in the full knowledge that, if there had been serious reservations, we would not have dreamt of presenting the legislation in those terms. I want to reassure him that the consultation was full and effective. Inevitably, questions were raised on the margins, as one would expect, but there is broad support for what the measure does.
The noble Lord mentioned the fact that inadequate answers were given at the other end. He will recognise that it is a convention in both Houses that if the questioner—Member of Parliament or noble Lord—does not stay until the end of the debate, it is not likely that he will be vouchsafed the courtesy of much of an answer. That is an important point. He indicated that that was part of the problem.
My Lords, that might have thrown my honourable friend in the other place in those terms and he was able to concentrate a little less. However, I am able to concentrate more, and, as the noble Lord reiterated the questions, I will certainly do my best to respond to them.
We think that about 5 per cent of the posts in the Civil Service will be reserved. That indicates to the noble Lord, Lord Maginnis, that the issue is being tackled. I will come to his position with regard to the Permanent Secretaries in just a moment.
I have answers to the specific questions asked by the noble Lord, Lord De Mauley. I cannot say how many Irish nationals were prevented from joining the Northern Ireland Civil Service since 1996. I would not expect the Civil Service to collect negative information, as it were. I can look at the issue further and produce the best answer possible, but I do not have a figure because it is, in a sense, a negative question.
The noble Lord, Lord De Mauley, asked about one particular group of nationals who are very important—Turkish nationals, who are not members of the European Community. The order applies to Turkish nationals, who are subject to additional conditions found in Article 6 of Decision 1/80 of the Association Council of the European Commission. Basically, a Turkish national must initially have a work permit. After a year, he or she can apply for renewal of the work permit. After three years, he or she can take up a job with another employer. Free access is granted only after four years of legal employment. Apart from two employees attached to the United Kingdom embassy and consulates in Turkey, to the best of our knowledge, no Turkish nationals are currently employed in the Civil Service.
The noble Lord asked a more general question about what the British got out of this and whether there was reciprocity. The noble Lord, Lord Wallace, addressed himself to that as well. The answer is “Not directly”, in the sense that some states are more extensive in their provision for foreign nationals than we will be under the order. Some are considerably less so, particularly those who joined the European Community more recently. It would outweigh the patience of the House if I went through the full list of categories for every member of the European Community. I emphasise that reciprocity is the principle on which we work and what we seek to obtain. In the large employing states in the European Union who have been members for a considerable time that is largely so.
Of course, there will be exceptions. Knowing his background, I should have anticipated the noble Lord, Lord Wallace, but I did not. He produced one brilliant illustration, asking, “What if a person is in one categorisation in one state and an entirely different categorisation in another, as professors are in Germany?”. I do not think that the British Government are in a position to revolutionise the German higher education system at a stroke. He will recognise that there is a long historic reason why that position obtains in Germany.
My Lords, my point was that I deeply suspect that the German Government are in breach of European Union law. I would merely encourage the British Government on this and on many other matters to point it out much more actively when other Governments are in breach of EU law.
My Lords, that is a fair point, and we will take the opportunity to do that because we will work on the principle of reciprocity. The noble Lord will also recognise the rather unique position with regard to German professors, which is vastly different from our own—
My Lords, perhaps they are better paid, but do they enjoy the degree of academic freedom that the noble Lord has always prided himself on in all his work in British universities, when he has extolled their virtues over almost all others? So there is a little bit of give and take on that position—but I accept his point.
The noble Lord, Lord De Mauley, asked a question that leads into the question asked by the noble Lord, Lord Maginnis, on who will determine at the most senior levels. It is clear that the position is reserved for the Secretary of State to make those decisions, and it will be done in his name if posts are reserved.
I erred on the side of assertiveness when responding to a question from the noble Lord, Lord Trimble, at Question Time the other day, which is why I wrote to him to clarify the position, indicating that I regretted that I had not been as clear as I would have wanted to be. I asked my civil servants whether the Permanent Secretary in Northern Ireland would be a reserved position. The answer was yes, but what my team of officials meant by that was that, of course, that would fit into the category of reserved positions on which the Secretary of State would expect to make a decision, as these reserved positions clearly involve matters of intelligence and the security and welfare of the state. Can one think of a position as high as that of a Permanent Secretary in which those factors do not obtain? It is clear—this is why I wrote the letter—that the order preserves that decision for the Secretary of State.
My Lords, I am absolutely confident that my noble friend Lord Trimble would forgive the Minister, as I would, for his common-sense answer in the first instance and regret that he had to apply the rules on his follow-up, but that is not the point that I wanted to make.
The Minister uses the term “the Permanent Secretary”. In Northern Ireland, we have the head of the Civil Service and a number of Permanent Secretaries. Would the Minister tell us exactly what he was saying a moment ago in that regard, for the sake of clarity?
My Lords, I was including both categories—the head of the Northern Ireland Civil Service and Permanent Secretary positions. Clearly, such people would fit the criteria of having access to information and having responsibilities for the security of the state that would bring them within the framework of the decision of the Secretary of State. I understand that the noble Lord, Lord Maginnis, may have views about various office holders from time to time that may be somewhat different from my own, but let him not chide me about the issue with regard to the rugby match on Saturday, because I am Welsh and therefore in the very happy position of not being tangled up in that particular collision, although I am greatly interested in it, I might add.
The provisions will create the clear obligation on a Secretary of State to look at posts that need to be reserved because of the sensitivity and responsibility that they involve. In doing that, we are not doing anything different from the other countries in the European Community that likewise have a clear idea of the posts that are of high enough significance to require to be reserved for their nationals because of security considerations and the safety of the state. So it is all one on that matter. The noble Lord has the right to chide me on my lack of clarity or even overdue clarity at Question Time a couple of weeks ago, so I reassure him on that point.
Of course, these issues are of great importance, but the motive behind the order is not in any way, shape or form to truckle to our European obligations. It is not a motive forced on us from elsewhere—very far from that, although we are keen to observe our European obligations. It is our motivation to try to improve the quality of our Civil Service when we saw an inordinate number of posts—largely in one department, as it happens—entirely restricted from any application from a foreign national, simply because the rules derived from a time that I described in my long historical analysis at the beginning of the debate, for which I apologise. We seek to rationalise that to make the Civil Service better and more competent and give people fair opportunities—the same opportunities that we expect British nationals to have if they reside and work in European countries to deploy their talents if they seek jobs in the civil service. Our motivation is to do that while bearing in mind exactly the point made by the noble Lord, Lord Maginnis, and the other two noble Lords who contributed to the debate: we should have due regard to reciprocity and fairness as well as to the significant posts on which our nation puts great responsibility. Those posts are the reserved posts—I emphasise that the decision-taking on that is the responsibility of the Secretary of State. The order is clear on the criteria for those posts, and I reassure the noble Lord, Lord Maginnis, in particular in that regard.
On Question, Motion agreed to.