- Quote
- Yes, that is the case. If the legislation changed and that country was no longer a member of the Commonwealth—if it had been formally excluded by amendment of the Act—its nationals would not then be eligible for employment. The EEA comprises not only the member states of the EU, but, as hon. Members will be aware, the nations of the European Free Trade Association. That means that the Crown can draw on the talents of some 30-plus nations from that group alone. Also included is Switzerland, whose nationals have the same rights as EEA nationals. That pool of talent is widened further to include Turkish nationals and certain family members of EEA, Swiss and Turkish nationals. Turkish nationals are eligible for Crown employment if they have been lawfully employed in the UK for four years in any job or for three years in the same occupation as the post that they wish to take up under the Crown. The family members of EEA nationals gain their rights in such circumstances as the EEA national has exercised their rights under the treaty establishing the European Community—in particular, the right to freedom of movement. As a result, those family members of EEA nationals, irrespective of their nationality, are eligible to take up employment in the member state where that national is employed. That means that certain family members of EEA nationals employed in the UK would also be eligible to be employed in the UK and therefore to be employed in non-reserved posts in the civil service, even if they did not as individuals satisfy the civil service nationality rules. That was the point that my hon. Friend the Member for Hendon was making. The family members concerned are the spouse or civil partner of the EEA national, and the direct descendants of the EEA national or their spouse or civil partner, such as their children and grandchildren. Direct descendants qualify only if they are under the age of 21 or are dependants. Dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner, such as their parents and grandparents, are also included. Certain family members of Swiss nationals resident in the UK, who are not Swiss and would not otherwise satisfy the rules, have rights to reside and to take up employment in the member state where that national is employed. That means that family members of Swiss nationals employed in the UK would also be eligible to be employed in the UK and therefore to be employed in non-reserved posts in the civil service. My hon. Friend did say that this could get to be rather a technical argument, and I think that we are proving that point. The family members concerned in this case are the spouse of the Swiss national, the direct descendants of the Swiss national—such as their children and grandchildren, as I have said—who are under the age of 21 or are dependants and their dependent relatives in the ascending line, such as grandparents and parents. In the case of a Swiss national who is a student, rights extend only to the spouse and any dependent children of the Swiss national. Those family members can work in the UK and are eligible for employment in non-reserved posts in the civil service. Certain family members of Turkish nationals who qualify for employment in the civil service are also eligible for employment in the civil service. Family members of Turkish nationals are eligible for employment in non-reserved civil service posts if they have been lawfully resident in the United Kingdom for three years or more. The family members concerned are Turkish nationals’ spouses and direct descendants of either the Turkish national or the spouse. Those descendants are children—including stepchildren—grandchildren, and great-grandchildren who are under the age of 21 or who are dependants. Also included are direct dependent relatives in the ascending line of a Turkish national or their spouse—that is, their parents, grandparents and great-grandparents. In order for the family member to be eligible for employment in the civil service, they must have lived in the UK with the qualifying Turkish national. There are also special rules that entitle children of qualifying Turkish nationals to take up jobs in the civil service if they have completed a course of vocational training in the UK. There is no length-of-residence requirement attached to that right. The Turkish national or the other parent of the child must have been legally employed in the United Kingdom for at least three years. After that fairly brief overview, I am sure the House will agree that the framework already allows for recruitment from a wide range of nations. I think it would also agree that there is some complexity in the rules. It is worth considering where the framework came from, and how we got to this point. The statutory prohibition on the employment of aliens in a civil capacity under the Crown—including, but not only, in the civil service—stems from the Act of Settlement of 1700. That Act provides that “no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging” may “enjoy any Office or Place of Trust either Civill or Military”. That provision was repealed in 1919—it took a few years—and replaced 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.” My hon. Friend rightly feels some frustration at having proposed the measures in his Bill seven times in seven years; he would feel greater frustration if he had been trying to change things from 1700 to 1919. An alien—I grant that that is not the most attractive of words to use to describe a non-UK national—is defined in the British Nationality Act 1981 as “a person who is neither a” British nor a “Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland.” The position with regard to the employment of aliens changed during the second world war. At the time, defence regulations permitted the temporary employment of aliens if no suitable British subjects were available. That situation was altered under the Aliens’ Employment Act 1955, which provided that “an alien may be employed in any civil capacity under the Crown”, either in posts outside the UK—an example would be locally engaged staff—or, exceptionally, in other circumstances under cover of an aliens certificate, signed by the responsible Minister. I shall say a bit more about the 1955 Act shortly. Following that Act, the European Communities (Employment in the Civil Service) Order 1991—Statutory Instrument 1991/1221—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, or, as we know them in the UK, reserved posts within the meaning of article 39(4) of the European Community treaty. That was followed by the European Communities (Employment in the Civil Service) Order 2007, which came into force on 7 March 2007. It amended the 1955 Act and the 1991 order to specify in more detail the definition of reserved posts and to clarify eligibility to take up non-reserved posts in the civil service. The 2007 order sets out categories of posts that are either automatically reserved to UK nationals or can be reserved to UK nationals if the relevant Minister considers it necessary. The Bill would remove the nationality restrictions by providing that section 3 of the Act of Settlement does not prohibit “any person from being employed or holding office in a civil capacity under the Crown”, and by repealing section 6 of the Aliens Restriction (Amendment) Act 1919, the whole of the 1955 Act, and the 1991 order. I think we understand the point made by my hon. Friend when he says that in many cases the complexity of the legislation can make it difficult to ensure that the right rules have been applied. Is there merit in the changes he proposes? That is a matter for the House to decide and the Committee to consider. I mentioned a moment ago that the spouse of an EEA national can be deemed eligible for Crown employment irrespective of their own nationality. The family members of EEA nationals gain their rights in circumstances where the EEA national has exercised their rights under the treaty of the European Community—in particular, the right to freedom of movement. My hon. Friend raised this specific point. The interrelationship of EC and UK law has created what is commonly referred to in the civil service as the alien spouse anomaly, whereby a Chinese national married to a French national who was working in UK could be deemed eligible for civil service employment by extension of their spouse having exercised their freedom of movement rights. But if the same Chinese national were married to a UK national working in the UK, they would not be deemed eligible, thereby giving more rights to EEA nationals and their families than to UK nationals. It is worth noting—this is where I have some disagreement with my hon. Friend’s analysis, though he is essentially right in practice—that the consequence of the freedom of movement rights does not represent a complete bar on the spouses of UK nationals. UK nationals themselves may have gained their rights by exercising freedom of movement or are open to that, as any other EEA national is. If they have triggered those rights, their spouse may well be eligible for Crown employment, irrespective of their nationality. However, it is accepted that in reality an EEA national living and working in the UK is more likely to be able to show that they have engaged their freedom of movement rights than a UK national living in the UK. The Bill seeks to remove the anomaly. Beyond this, one could argue that the Bill represents a sensible tidying up of somewhat aged and complex legislation, removing an administrative layer from recruitment and putting the Crown and civil service on an equal footing with the rest of the UK. That is the considerable merit of the Bill. However, there are difficulties that need to be teased out in Committee, and that is why I cannot give the Bill my full support at present. One of the questions that we should consider is whether there is at the moment a problem with the recruitment or retention of talent and which the Bill addresses, and whether it is helpful in that regard. The Crown, including the civil service, evolves like all other employers. It needs to be able to reflect a diverse society to understand and meet its needs. To do that, it must be able to draw on a range of talent and variety of individuals. The civil service would accept that the widest pool possible was to its benefit in getting the talent and the skills that it requires. The legislative framework as it stands allows recruitment from a wide range of nations so that the Crown and civil service are able to recruit the talent that they need, without affecting policies on national security and/or immigration. The changes in the economic and working climate within which we should consider the Bill are brought into focus if we consider that during the Bill’s presentation in 2007 my hon. Friend: “I have the honour to represent a constituency in London, which is a diverse city, but 330,000 people in London, or 7 per cent. of its working-age population, are entirely excluded, not just from the higher echelons of the civil service, but from even applying for the most junior social security clerk’s job. It is no wonder that we have difficulty filling civil service jobs in the capital when so many of my fellow Londoners are entirely out of the equation.”—[Official Report, 29 June 2007; Vol. 460, c. 579.] He made a similar point today. The use of aliens certificates means that individuals are not barred per se from employment, even at the most junior levels. They can be employed at any level, in any city or town, when there is a need. That they are not suggests that there currently is not the need. What is more, and critical in illustrating the changing climate, is the fact that since my hon. Friend made his statement in 2007 about job opportunities in London, the efficiency and relocation programme undertaken by the civil service dictated that some 20,000 jobs were to be relocated out of London and the south-east by 2010. In the recent Budget, the number of jobs to be relocated out of London and the south-east by 2010 was further increased to 24,000. So far, more than 17,000 jobs have been so relocated. Now some three quarters of civil service jobs are located outside London and the south-east. Alongside that, the civil service currently has a work force of 487,000 full-time equivalent civil servants. That is the lowest number since 1999. In the year ending March 2008, the turnover was 7.8 per cent., so there is evidence of a slowing down in the rate of departure in the current economic climate. To put that in context, when the Bill was first introduced in 2001, the civil service had 39,230 entrants and 31,360 leavers, and a work force of more than 500,000. By 2008, that had fallen to 23,490 entrants and 41,050 leavers, and a work force of 487,000. Indeed, the number of entrants to the civil service is at its lowest level since the Bill was first introduced, whereas the number of leavers is proportionally at its highest. In 2001, 39,000 people joined the civil service, against 31,000 people leaving, so 11 per cent. more joined than left. In 2002, 47,370 joined, against nearly 28,000 leaving, so 42 per cent. more joined than left. In 2003, well over 60,000 joined yet nearly 45,000 left, so 26 per cent. more joined the civil service than left. In 2004, 54,500 people joined the civil service, while not that many fewer—46,000—left, so 15 per cent. more joined than left. In 2005—another year in which my hon. Friend introduced his Bill—40,000 joined, against nearly 51,000 leaving, which gives a difference of 20 per cent. In 2006, 37,000 joined, with 42,000 leaving. In 2007, nearly 25,000 joined, against 36,000 leaving, which gives a 31 per cent. difference. In 2008, 23,000 joined the civil service and 41,000 left, which gives a difference of more than 43 per cent. Of the vacancies available in the civil service, all departmental vacancies are initially advertised for a minimum of two weeks to staff at risk of redundancy, because we obviously want to maximise redeployment and minimise any possibility of compulsory redundancy. I am sure the House would accept that, particularly at this time, those are the actions of a good employer. They are, of course, also supported by the national trade union side, and form part of an agreement made in April 2008. Coupled with that, the civil service, like any other big employer, has a policy of redeployment, within departments and across departmental boundaries, and promotions. That enables the service to utilise people’s key skills, which Departments will have invested in, and retain key talent. That said, the civil service cannot be protectionist or keep all its posts for its own people. It recognises that external recruitment is essential at all levels to provide opportunities to jobseekers and bring in new talents, experiences and ideas. To that end, a large number of jobs at all levels are advertised in the external market each year, both in the press and in a number of other ways, but mainly through local jobcentres and on the civil service website. The key is to have balance. External recruitment and internal moves allow new ideas to be brought in and job opportunities to be created, while ensuring a level of stability in organisations and—I emphasise this point—reducing the need to resort to compulsory redundancies. The civil service, as the largest employer under the heading of the Crown, has to strike that fine balance between finding efficiency savings and supporting the UK and its workers through the current economic downturn, and it has shown a determination and commitment to achieve this. I spoke earlier about the relocation away from London and the south-east, and about the current position on recruitment. Relocations away from London are not the only issue, of course. As part of the efficiency and relocation programme, significant work force reductions have had to be faced and some 76,600 were achieved between July 2004 and March 2008. Further reductions continue to take place. Despite that context of efficiency savings and relocation, the civil service is seeking to play its role in the current economic climate, and is actively recruiting to Jobcentre Plus to deal with the rise in registrations and to assist people back to work. It is right that that should be done; if finding work becomes harder, we should do more to help, not less. The civil service has also committed fully to the success of local employment partnerships. As the House will know, LEPs aim to get priority group customers into work. They are a partnership between business and Jobcentre Plus and provide tailored support to prepare the unemployed for work. I am pleased to report that the civil service has committed to filling at least one in four of its administrative staff vacancies through LEPs. The discussion on recruitment helps to illustrate the fact that there simply is not an endemic problem that repealing the existing legislation on nationality would solve. Whatever merits the Bill has, it would not automatically resolve the point at issue. With the exception of Jobcentre Plus, which is creating jobs for a specific reason—actively to assist the British economy towards recovery—recruitment is at a reasonably low level. Repealing the legislation at this time would have little practical effect in the current climate. That is supported by the most recent findings of the Migration Advisory Committee, which recently published its first review of the shortage occupation lists for skilled workers coming to the UK from outside the EEA. In announcing the publication of its recommendations, Professor David Metcalf, the chair of the committee, said: “The points-based system, including the shortage occupation list, has to operate for the benefit of United Kingdom workers, especially given the current economic climate. These latest recommendations take account of the impact of the worldwide recession on the United Kingdom. We have looked critically at the evidence regarding the occupations under review and made recommendations which balance the needs of the UK workforce against those of employers. It is important to note that some shortages of skilled labour will still exist in a recession. This can be where there is a long-term structural shortage of skilled workers, where workers provide key public services, or in areas such as culture where the United Kingdom needs to maintain global leadership.” If we consider the occupations on the list for tier 2 of the points-based system, we see that the terms “civil servant” and “Crown employee” do not appear. Terms that we might associate with professions in the civil service or in Crown employment—for example, “administrator”, “policy official” or “project manager” do not appear on the list. It is reasonable to conclude that they do not appear because there is not a shortage in those areas. Any roles within the civil service or under the Crown that may appear on the list are likely to be in more specialist or technical areas and would not, as a result, be widespread across the civil service. Situations such as a qualifying national not being available or specialist skills being needed would attract the use of the aliens certificate route. For example, “structural engineer” appears on the shortage occupation list and a structural engineer is currently employed in the civil service under cover of an aliens certificate. You will be aware, Mr. Deputy Speaker, that I have only recently undertaken this brief. One of the things that I have wanted from my officials is more detailed information on aliens certificates—how they are used and how many are used. My hon. Friend the Member for Hendon has also been looking into that issue. I shall share the information that I have received with the House. A criticism of the framework has often been that, although it provides for a wide-ranging group of nationalities to be deemed eligible for employment under the Crown, a significant number of nationalities and individuals are precluded. It is argued that that preclusion prevents as wide a pool of talent as possible from being chosen, denies the Crown the best available people and prevents a diverse work force from being created. That is not strictly the case. Where necessary, the current framework does allow individuals to be employed from outside the UK, the EEA, the Commonwealth, Switzerland and Turkey. The Aliens’ Employment Act 1955 allows for the employment of non-UK, non-eligible nationals under cover of what are known as aliens certificates. The circumstances in which an aliens certificate may be issued are set out in section 2 of the Act: “a certificate may be issued under this section either in respect of employment of a specified alien in specified service, or in respect of the employment of aliens generally in specified service or in service of any specified class or description; but no such certificate shall be issued unless it appears to the responsible Minister, at the time of the issue of the certificate, (a) in the case of a certificate in respect of the employment of a specified alien in a specified service, either that no suitably qualified person being a British subject is available for employment in that service or that the alien possesses exceptional qualifications or experience fitting him for such employment; (b) in the case of any certificate, that suitably qualified persons being British subjects are not readily available, or available in sufficient numbers, for employment in the service, or class or description of service, specified in the certificate.” In brief, a certificate can cover the employment of a particular individual in a particular post or the employment of individuals generally in specific posts or in posts of a particular class or description. For the purposes of the civil service nationality rules, this is described as a certificate being able to be issued where “there is no suitably qualified UK national available for employment in that post; or the alien possesses exceptional qualifications or experience for the post. Other certificates (including those covering the employment of aliens in posts of a particular class or description) may only be issued if suitably qualified UK nationals are not readily available, or available in sufficient numbers for employment in the post or class or description of the posts specified in the certificate.” Aliens certificates currently in force cover a diverse range of nationalities. It may be helpful if I provide the House with a breakdown of where individuals covered by the certificates come from. Fourteen certificates cover individuals from the USA. One individual is from Egypt, three are from China, one is from Iran, 61 are from Nepal, one is from Tunisia, one is from Chile, one is from Argentina, one is from Japan, one is from Sudan, one is from Ukraine, one is from the Democratic Republic of the Congo, one is from Colombia, one is from Brazil, one is from Venezuela, and one is from Thailand. The range of posts is equally widespread, from junior administrative grades to specialists in scientific fields—from individuals employed in Ministry of Defence barracks to specialist marine biologists and, as I said, a structural engineer. As my hon. Friend the Member for Hendon suggested, the use of aliens certificates has been criticised for being an overly onerous administrative process. It would therefore help the House if I explained how a Department goes about getting an aliens certificate. It is not that burdensome, but it is, as he said, an additional administrative layer of bureaucracy. For applications for a certificate on the grounds that no qualifying national is available, the Department concerned makes a business case to the Cabinet Office setting out certain details: confirmation that there are no restrictions on the candidate’s taking up employment or that the Home Office has given the necessary clearance; confirmation that the post is non-reserved; confirmation that no qualifying national is available; details of the recruitment campaign, including when and where the post was advertised, the number of applications and the results of interviews; and a draft copy of the aliens certificate. For applications on the grounds that the candidate brings specialist skills, experience or qualifications, the business case to the Cabinet Office should provide: confirmation that there are no restrictions on the candidate’s taking up employment or that the Home Office has given the necessary clearance; confirmation that the post is non-reserved; details of the recruitment campaign, what is the specialist requirement of the post, and what specialist skills the candidate brings that others do not; and a draft copy of the aliens certificate. The Cabinet Office will then consider the case and, assuming that consent is granted, send the confirmation back to the Department with the certificate for signature by the Minister in that Department. Once signed, the certificate is returned to the Cabinet Office. Given the numbers involved, the processing of aliens certificates is not an overly onerous administrative task to place on Departments and agencies, so repealing the legislation and removing the need for the certificates would not solve a problem or create any significant efficiency savings. I would not for one moment claim that the current system is perfect. It would be inappropriate to do so. My hon. Friend addressed the issue moderately by saying that the Bill would remove an administrative burden and tidy up legislation, but the current law allows a workable, pragmatic approach to recruitment. UK, Commonwealth and European economic area citizens are available to the Crown, and the issuing of aliens certificates allows Departments, agencies and so on to widen their scope where necessary, perhaps when a post requires such specialist skills that the number of candidates is naturally limited, or if recruitment at a junior level is traditionally difficult due to the geographical location of the post, its salary, its low level or local unemployment. The pool of talent available to the civil service is therefore both wide and diverse. It is reasonable to suggest that were there a shortage of eligible nationals available to take up posts or a lack of expertise in specialist posts, applications for the certificates would be growing in number. They are not, and I gave my hon. Friend the relevant figures earlier. At any one time there are approximately 60 to 80 certificates in force, in a civil service that currently has 487,000 employees. Indeed, in the financial year 2008-09, requests for applications fell by almost 20 per cent. In the current financial year to date, the number requested is three, compared with six in the same period in 2008-09. I shall expand the discussion on the use of aliens certificates. It has been argued that the mechanism is difficult to use, which is why its use is minimal compared with the total number of civil service employees. In 2004, the late Eric Forth spoke about the Aliens’ Employment Act 1955 in a debate on the earlier version of this Bill. He said: “It takes a rather sensible approach, which seems to have stood the test of time. As I understood it, the measure reverses the presumption, so that instead of opening our doors to anyone regardless of their nationality, it states that we would not wish automatically to allow people who have not chosen to express their loyalty or identity to this country by taking British nationality to work within our Government, but that we are prepared to consider...on a case by case basis those who may wish to be so employed and that, if they can satisfy us that their skills are relevant and that we need and would appreciate their services, we have a mechanism to allow them to do that work.”—[Official Report, 14 May 2004; Vol. 421, c. 595.] The current Bill is a somewhat negative interpretation of the purpose of the Act, which I suggest could be looked on in a much more positive light. It should be seen not as a vehicle to block non-UK nationals from gaining employment but as a mechanism that allows the employment of such individuals. It is a tool whose use is not discouraged, nor is the number of certificates that can be issued across the civil service limited. It is driven by need, and it does not appear that Departments are requesting a vast number of certificates. That suggests that they are not using the Act simply because they do not have an overwhelming need to do so, as they can currently recruit successfully. Rather than argue that the civil service is bound by an Act that says, “You cannot be employed because you do not fit into nationality requirements”, we should be far more positive and say, “We have an Act that says we can consider employing you, and where the circumstances are such that we need to do so, we will be very happy to.” To end my comments on aliens certificates on a positive note, I am pleased to say that the Cabinet Office has informed me that in the light of the Bill, it is looking to assist the users of the nationality rules by considering whether their drafting and presentation could be different. Perhaps the language could be updated or the presentation modernised, and they need to be user-friendly. Their complexity is an issue to consider. I want to raise a couple more points on which we need to reflect and ask questions. I should like to address them also in Committee. One might argue that what we do with employment in our civil service is for us to determine in the best interests of the UK, but should we not also consider reciprocity? Are our rules that different from those of other nations? Should they be? The United States is a large user of aliens certificates. However, it seems that it would be no easier for a UK national to enter the US civil service than for a US citizen to enter ours. If individuals are not citizens of the United States, they cannot be considered for most positions in the federal Government through the standard process, as failure to provide a social security number when requested will result in the application not being processed. Some agencies can and sometimes do hire non-citizens through special hiring procedures, but it is up to the relevant individuals to contact the agencies directly to ascertain whether they are eligible for any available positions, and to find out how to apply. Let us consider other countries from which nationals have joined our civil service under aliens certificates. In Thailand, non-citizens may apply for Government jobs only with the permission of the relevant Cabinet Minister. Of the larger Commonwealth countries, Canada appears to determine any nationality criteria on a job-by-job or organisation basis. Job adverts state either, “open to all” who have legal status to work in Canada, or a preference for the job to be given to a Canadian citizen. In Australia, there is a general expectation that a person who is to be engaged as an Australian public service employee will be an Australian citizen, although non-citizens can be engaged in certain circumstances. In Europe, some nations are more open than others in their recruitment. For example, in the Netherlands and Finland, civil service posts are open to all European economic area nationals and beyond, with the exception of reserved posts. Approximately 10 per cent. are reserved in the Netherlands—more than in the UK, where 5 per cent. are reserved. I have spoken about reserved posts—those that are reserved for UK nationals, on the ground only that special allegiance to the Crown is needed. Under the Bill, the current situation would continue—that is a merit of the measure. Some posts would remain automatically reserved, while the responsible Minister could make others reserved. However, would there be an effect on non-reserved posts and the administration in relation to recruitment? In the appointment process in the civil service, candidates are subject to two procedures: character checks in relation to recruitment and, when appropriate, the Government’s system of security vetting. Character checks are used to determine whether candidates are likely to give satisfactory service and whether anything in their recent past is likely to bring discredit on the Department, agency or the civil service in general. Let me deal with some of the wider practical issues that might arise from the Bill, and why I believe it merits further discussion in Committee. We must, of course, address national security. In particular, we should study carefully the range of issues around the checks that need to be carried out on those who apply for civil service or military employment, outside the context of reserved posts. They include the need for employing Departments to ensure that applicants are who they say they are, that they can check the applicant’s employment history, nationality, immigration status and criminal record, and that, when the risk justifies it, they can carry out other checks concerning the applicant’s financial position, integrity and trustworthiness. The House does not need me to dwell on the reasons for the necessity for such checks—I suspect that hon. Members do not want me to do that, either. We are only too well aware that the threats to our security have grown in recent years. However, I emphasise that it is a vital responsibility of Government to do all they can to protect the assets of our nation and its people from any threats, by an informed assessment of the risks and by maintaining a proportionate range of measures to guard against them. Protection against any possible insider threat is a central element of these measures. Under the Cabinet Office’s new security policy framework, it is mandatory for all Departments and Government agencies to apply the requirements of Her Majesty’s Government’s baseline personnel security standard to all recruits. That covers the verification of identity, nationality, employment history and unspent criminal records. Details are available in the Library, as hon. Members know. When a lack of UK residence makes it impossible to carry out meaningful checks in the UK, prospective employees are required to provide official and verifiable overseas police certificates obtained from the country or countries of residence, when those are available. Prospective employees should provide a reasonable account of any significant periods—six months or more in the past three years—of time spent abroad. However, the weight that can be attached to such evidence, when it exists, will vary from country to country. When a recruit needs access to sensitive material or assets, further checks need to be carried out under the process known as national security vetting. Vetting for a particular post may be required for different reasons: the threats from terrorism and espionage; the consequences of compromise of sensitive information and other assets; information sharing across Government; and a wide range of agreements and security protocols with international partners. National security vetting provides an assurance framework for Departments sharing information or allowing other access to their assets to employees in other Departments and agencies. Approximately 250,000 people are vetted or re-vetted on review each year across the Government, the defence industry, other Government contracts and the security regulated sectors, including transport and civil nuclear security. A wide range of international agreements and security protocols require the UK to apply appropriate personnel security controls, including vetting in certain circumstances. An effective vetting system therefore provides an essential level of assurance, not only for the confidentiality and integrity of our own assets, but for the conduct of business with our close allies. A question that is often asked is whether the application of the nationality rules discriminates not only against individuals whose nationality falls outside the eligible nations but against those UK nationals whose spouses do not have the same rights as the spouses of other EEA nationals who are living and working in the UK. That is a reasonable question. The application of the civil service nationality rules is not discriminatory in law. Section 41 of the Race Relations Act 1976 provides that it is not unlawful to discriminate on specified grounds in pursuance of enactments, Orders in Council or instruments made under such enactments, or in order to comply with conditions or requirements imposed by such enactments. Section 75(5) of the Race Relations Act 1976 provides that the Act does not invalidate rules restricting employment in the service of the Crown or by any public body prescribed for the purposes of section 75(5) by regulations made by the Minister for the Civil Service, to persons of particular birth, nationality, descent or residence. Further, section 35 of the Race Relations Act 1976 (Amendment) Regulations 2003 amended the 1976 Act so that it is not unlawful to discriminate against another on the basis of nationality, place of residence or the length of time of residence or presence in or out of the UK if the act is done in pursuance of any enactment, Order in Council or instrument made by a Minister under such an enactment, or in order to comply with a requirement, condition or arrangement imposed by a Minister under such an enactment. The cumulative effect is that, under UK law, it is not unlawful to discriminate on the ground of nationality, where to do so is to comply with obligations pursuant to primary legislation. Concern has been expressed, however, that a Department might find itself open to a claim of discrimination if it determined that an individual could not be employed on the ground that they were unlikely to be able to satisfy a security check. Recently, an employment tribunal and an employment appeal tribunal found that a decision not to consider employing an Indian national on the ground that he was unlikely to get a work permit constituted indirect discrimination. That case involved a private law firm, not the civil service, but I understand that the precedent would also apply to the civil service. It is not inconceivable that, if a Department or agency rejected an application on the ground that completing a security check was either unlikely to be satisfactory or impossible, that precedent might well apply. Further, if a non-UK national were to be employed, having been subjected to a less stringent check than a UK national, might the UK national have grounds for complaint? These issues merit further reflection, which is why I suggest that the Bill go forward for consideration in Committee. I have come to these matters only recently, but I appreciate that the Bill has tremendous merit. However, there are issues that the Government would like to explore further, and we are therefore unable to support it today. I would like to take some time to reflect on those issues with my colleagues, and it would therefore be helpful if the Bill were considered in Committee so that they could be discussed. The Bill has been subject to consultation with Her Majesty the Queen, as it would have two identifiable impacts on the Crown. As the House has been informed, Her Majesty has asked the House to be acquainted that, having been informed of the purport of the Bill, she has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
- Time
- 12:18
Mr. Andrew Dismore (Hendon) (Lab)Labour
Mr. David Heath (Somerton and Frome) (LD)Liberal Democrat
Mr. Nick Hurd (Ruislip-Northwood) (Con)Conservative
Angela E. SmithLabour
Mr. Christopher Chope (Christchurch) (Con)Conservative