European Communities (Employment in the Civil Service) Order 2007

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.)