Fifth Standing Committee on Statutory Instruments, &c.


Tuesday 30 April 1991


£6·00 net

Members who wish to have copies of the Official Report of Proceedings in Standing Committees sent to them are requested to give notice to that effect at the Vote Office.

No proofs can be supplied. Corrigenda slips may be published with Bound Volume editions. Corrigenda that Members suggest should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor's Room, House of Commons.

not later than

Saturday 4 May 1991


©Parliamentary copyright House of Commons 1991

Applications for reproduction should be made to HMSO

HMSO publications are available from:
HMSO Publications Centre HMSO Bookshops HMSO's Accredited Agents
(Mail and telephone orders only) 49 High Holborn, London WC1V 6HB 071–873 0011 (Counter service only) (see Yellow Pages)
PO Box 276, London SW8 5DT 258 Broad Street, Birmingham B1 2HE 021–643 3740
Telephone orders 071–873 9090 Southey House, 33 Wine Street, Bristol BSI 2BQ (0272) 264306 and through good booksellers
General enquiries 071–873 0011 9–21 Princess Street, Manchester M60 8AS 061–834 7201
(queueing system for both numbers in operation) 80 Chichester Street, Belfast BT1 4JY (0232) 238451
71 Lothian Road, Edinburgh EH3 9AZ (031) 228 4181
Printed in the U.K. by HMSO
ISBN 0 10 994291 4


The Committee consisted of the following Members:

Chairman: Mr. Geraint Howells

Amos, Mr. Alan (Hexham)

Beith, Mr. A. J. (Berwick-upon-Tweed)

Blaker, Sir Peter (Blackpool, South)

Bowden, Mr. Gerald (Dulwich)

Duffy, Mr. A. E. P. (Sheffield, Attercliffe)

Dunwoody, Mrs. Gwyneth (Crewe and Nantwich)

Evans, Mr. David (Welwyn Hatfield)

Fishburn, Mr. Dudley (Kensington)

Fowler, Sir Norman (Sutton Coldfield)

Gordon, Ms. Mildred (Bow and Poplar)

Hoey, Miss Kate (Vauxhall)

Marek, Dr John (Wrexham)

Marshall, Mr. John (Hendon, South)

Primarolo, Ms. Dawn (Bristol, South)

Renton, Mr. Tim (Minister of State, Privy Council Office)

Roe, Mrs. Marion (Broxbourne)

Ross, Mr. Ernie (Dundee, West)

Soames, Mr. Nicholas (Crawley)

Taylor, Mr. John M. (Solihull)

Mr. B. M. Hutton, Committee Clerk

3 Fifth Standing Committee on Statutory Instruments, &c. Tuesday 30 April 1991

[MR. GERAINT HOWELLS in the Chair]

Draft European Communities (Employment in the Civil Service) Order 1991

10.30 am

The Minister of State, Privy Council Office (Mr. Tim Renton): I beg to move, That the Committee has considered the draft European Communities (Employment in the Civil Service) Order 1991. It may be helpful if I explain the background to the order before I comment on it in detail. The order has been made necessary by a provision of the treaty of Rome that is intended to bring about free movement in the Community labour market. The treaty aims, among other things, to cut out unnecessary restrictions on employment as they arise from nationality qualifications. As with many issues concerning nationality, the details require patience, but the central problem is easily stated. It is that EC law now permits only a core of posts in the civil service to be closed on grounds of nationality to the citizens of other EC countries. However, our own existing law draws the nationality boundary more widely, thus excluding the nationals of other EC member states from posts that the EC definition would include. A penumbra of posts thus exists around the central core, and in that area there is a conflict of laws. The object of the order is substantially to resolve the conflict. Not least among the requirements for patience in discussing this simple point is the EC's choice of terminology. I uses the term "public service" to refer to that restricted core of posts from which it remains permissible for each member state to exclude other EC nationals. The Government see no difficulty in principle in redrawing our boundaries in conformity with the provisions of the treaty of Rome. The effect of amending our domestic laws would be that EC nationals could be free to compete on merit and in fair competition with our own nationals in respect of the peripheral posts from which they have hitherto been excluded. Similar liberty is being progressively extended to such of our nationals as may wish to take up analogous posts in the administrations of other EC countries. Indeed, we are aware of some other major member states, for instance, France, which are now promoting legal changes in respect of their civil services, just as we are promoting the order. Whatever the terminology, the combined effect would be to remove unnecessary restrictions on mobility and to prevent a conflict of laws. The second point on which I ask for the patience of the Committee is in dealing with the complexity—and the antiquity—of existing domestic legislation, and its interplay with EC law. At present, all posts in the home civil service and the diplomatic service are subject to the provisions of the Act of Settlement 1700.

Mr. Nicholas Soames (Crawley): Hear, hear.


Mr. Renton: I am pleased that I have the support of my hon. Friend the Member for Crawley (Mr. Soames) who is, I know, intimately acquainted with every detail of the Act of Settlement. Posts in the home civil service and diplomatic service are also subject to the Aliens' Restriction (Amendment) Act 1919, and the Aliens' Employment Act 1955. The Aliens' Restriction (Amendment) Act 1919 excludes anyone from employment in the civil service who is not a Commonwealth—including British—citizen, a British protected person or a citizen of the Republic of Ireland. The Aliens' Employment Act 1955 provides an exception to the 1919 Act by allowing the employment of an alien with a certificate authorised by the employing Minister with my consent. In article 48 of the treaty of Rome provides for the freedom of movement of workers. It prohibits discrimination based on nationality between workers of member states as regards employment, remuneration and other conditions of work and employment. Article 48(4) provides a limited exception to that general rule specifically in relation to what the EC calls "the public service". "Public service" is not itself defined in the treaty but has been defined by the European Court of Justice in a number of cases. It is, in fact, a permitted, protected core, recognised by the treaty as being necessary for each member state. Many people known as public servants both in Britain and in other member states will be employed outside the EC's definition of "public service". Some civil service posts will also fall outside that restrictive definition. In order that those posts become open to EC nationals of other member states, it is necessary to remove our existing nationality restrictions on them. Departments and agencies will then be able to consider each vacancy on its merit, as it arises, to determine whether the post in question is one that can be opened to EC nationals of other member states. That is likely to extend a variety of jobs at different levels to EC nationals. However, Departments and agencies can still retain, quite legitimately, the more restrictive nationality requirements for those jobs that can be justified as remaining in the core described as "public service" under article 48(4) of the treaty of Rome. The effect of the entire Order in Council is to amend domestic legislation to ensure compliance with article 48(4). Article 2 of the Order in Council extends the exception to the Aliens' Employment Act 1955. That will allow nationals of EC member states to be employed in the civil service in posts other than those defined as being in the public service within the meaning of article 48(4) of the treaty of Rome. Article 2 also makes a similar provision with regard to the spouse, child under the age of 21 years, or dependent child, of a national of another member state, provided that national is employed in the United Kingdom. Article 3 of the order makes similar provision in relation to the Northern Ireland civil service, to which the 1955 Act does not extend, thus ensuring that the same position is achieved throughout the United Kingdom. I am advised that although the Order in Council effectively meets the main point of the conflict of laws, it may not remove every conceivable legal anomaly. We shall need to consider the matter further in due course to determine the extent of any anomalies that may remain and that could require primary legislation to remove them. 5 The Government attach great importance to complying with our obligations under EC law. We have already faced the possibility of legal action that would have highlighted the conflict of law; that is clearly to be avoided, if possible. The order amends the legislation governing the civil service nationality rules. It will enable us to comply with article 48 of the EC treaty, remain in step on the promotion of mobility of labour, and incidentally will allow some areas of the civil service to draw from a wider pool of talent, where that is appropriate. For all those reasons I commend it to the Committee.

10.39 am

Dr. John Marek (Wrexham): I have no hesitation in saying that I welcome the order. Should not it have been brought forward earlier? The Minister was frank in admitting that Britain was in danger of being taken to the European court because of the restrictive nature of employment in our civil service. I have a series of questions for the Minister and I shall begin by asking him for more information. How long have we been threatened with being taken to the European court? I do not know the history of the matter. Responsibility may rest not only with the Government but with previous Labour Administrations. For how long have we been in breach of article 48 of the treaty of Rome? That question is not at the forefront of most people's minds, but it is important. If British citizens can take jobs in the civil services of other European countries, citizens of those countries should be able to take jobs in our civil service. Has the Minister any figures on that? As the Minister said, the Aliens' Employment Act 1955 allowed some exceptions to be made, but I suspect that those have been few and far between. How many exceptions have been made since 1955 and has there been any relaxation of the rules? The Minister said that legal anomalies may arise out of the order and that he will consider whether primary legislation is necessary to correct them. If primary legislation is necessary to bring us into line with other members of the European Community, I am sure that the Opposition would support it. The Minister said that legal anomalies may arise out of the order and that he will consider whether primary legislation is necessary to correct them. If primary legislation is necessary to bring us into line with other members of the European Community, I am sure that the Opposition would support it. However, that process will take time and the Opposition will become the Government after the next general election. Whichever party is in Government, it is important that there is no secrecy. Can the Minister confirm that answers would be forthcoming if parliamentary questions were asked on this matter? The question of procedure is important. If the Minister can confirm that information would be available to hon. Members, there is no problem. However, if the process will be confidential—there is too much confidentiality in government at present—the public would need to be assured that any anomalies were being considered. The matter should not be dealt with in confidence in Government Departments. Justice must be seen to be done. How many British citizens are employed in foreign civil services? In this country, the civil service is a closed profession for aliens. How much publicity will the Minister give to this change in the law? There are many people from 6 France, Germany and other member states living in the United Kingdom who might wish to apply for jobs in the civil service, but who are precluded from doing so. That will change and the Government should consider publicising the contents of the order. I want to know how the present EC provision—especially article 48(4) of the treaty of Rome—is applied in other member states. Will the Government interpret article 48 more tightly, less tightly, or in the same way as it is interpreted in other EC countries? The Minister may have to ask the diplomatic service for information on the interpretation of that article. Member states are different and we cannot have a rule that must be obeyed slavishly to every last comma and full stop in every country. I want to be satisfied, however, that the spirit and intent with which article 48 will operate in this country will be the same as in other European Community countries. What will be the difference between citizens of Macao and British dependent territories citizen passport-holders from Hong Kong applying to join the civil service in this country, when they are not proscribed by article 48(4)? Macao citizens are citizens of the European Community because Portugal has given them Portuguese membership. Hong Kong citizens are not members of the European Community, but Hong Kong is a colony of this country. There must be a difference; can the Minister tell the Committee what that is? I welcome the extension that is provided by the order. It brings us into line with what is happening elsewhere in the European Community. My only regret is that the measure has escaped for so long being brought forward.

10.48 am

Mr. A. J. Beith (Berwick-upon-Tweed): I am sorry that I missed the first few words of the Minister's opening remarks as it is a happy and gratifying occasion to witness a former Government Chief Whip preside over an obscure statutory instrument in a Standing Committee. We are grateful to him for bringing his distinguished service to the benefit of the Committee. Not many former Cabinet members, let alone present Cabinet members, trouble to acquaint members of such Committees with the intracacies of primary or secondary legislation. How many posts are affected by the order? The truth must rest in the complex distinctions between civil service and public service that lie at the heart of the measure. It is difficult to fathom what it will mean and to whom. Public service, used in the broad sense, should not exclude the freedom of movement that is part of the EEC. It should be natural for citizens of one member state who settle in another to feel no need to surrender their original nationality, even though they work in and are committed to the country to which they move. Many citizens of different countries in the EEC work in other member countries. It would be a natural progression for those who have developed careers in industry or in the professions to move to a related civil service appointment in that country. There might be scope for transfers between the civil service and member countries. That conjures up the lovely thought of a French chef being transferred to the Department's canteen, a German banker to the Treasury, an Italian tax accountant to the Inland Revenue or possibly even Sir Bernard Ingham seconded to the office of the French President. Clearly the order will not permit such a wide range of transfers, but it would be useful to know to 7 how many groups and categories it applies and whether the Government want such an exchange to develop or whether they are anxious to secure a wholly British-born civil service for ever, even in a very different world.

Mr. Renton: I must correct the hon. Gentleman. If a French or an Italian chef were to apply for the job as head cook in the civil service catering organisation, he would certainly be considered under the order. Many who periodically have the privilege of enjoying the organisation's sandwiches, would probably welcome him.

Mr. Beith: It was just such a possibility that I was seeking to open up. Obviously there are many more possibilities. Perhaps the Minister with responsibility for sport could second someone with the appropriate experience of cricket, which would be of considerable advantage. Can the Minister clarify the scope of the order?

10.51 am

Mr. Renton: We have had a lively but brief discussion, and I am grateful for the expressions of support from the hon. Members for Wrexham (Dr. Marek) and for Berwick-upon-Tweed (Mr. Beith). I assure the hon. Member for Wrexham that a major problem has not been hanging around for a long time. When a case was due to be heard in December 1990 we considered it appropriate to bring the order forward. The case was, in fact, settled out of court. Two more cases are being processed at present, but I hope that they will be settled as a result of the order. Under the aliens' certificate, only a few people from EC member countries have taken jobs here in recent years. I do not have the figures since 1955, but in 1989 the number was about 30. I do not know whether that includes chefs. It is not possible to say how many people will apply for or be accepted for jobs in future, because that hinges on the looseness of the definition of public service arrived at by the European Court of Justice. It is clear that the court's description of public service does not cover all jobs in the civil service. That is why I referred to an outer core—the penumbra—to which EC citizens could apply, and the protected inner core. The legal definition is neither concise nor complete. If there is doubt about an application, each Department or agency will have to consider it carefully. For example, if an EC national were to apply for the job of chief executive of one of our new executive agencies, which the Government have created with such success under the "next steps" process, it would be debatable whether he would be in the outer or inner core. Each case must be looked at on its merits.

Dr. Marek: In that case, will it be publicly known where the penumbra stops and the umbra starts?

Mr. Renton: Yes. It will be easier because we shall get to know about jobs advertised that have been filled by a French, Italian or Spaniard rather than by a Briton. There may be publicity about that, and vice versa, because I hope that the same will happen in other European Community 8 countries. As the process develops, it will be possible for hon. Members to table parliamentary questions on how many people came into the outer ring of civil service posts from other European Community countries, how many applied, how many were accepted and into which jobs they have gone. I do not anticipate any difficulty. On secrecy, another point raised by the hon. Member for Wrexham, I do not envisage any difficulty with parliamentary questions being answered and full details being given about those who apply and those who are accepted. Obviously, security procedures will apply to EC nationals, as they would to any other eligible applicant. Posts that required real security vetting would normally have the characteristics of a public service post and, therefore, would not be available to non-United Kingdom, EC nationals. Subject to that, there is no reason for secrecy. I confirm to the hon. Members for Wrexham and for Berwick-upon-Tweed that other member states are having similar difficulties trying to bring domestic employment law on non-nationals in line with their obligations under article 48 of the treaty of Rome. By no means all of them have proceeded as far as we have in removing the inconsistency, which I hope to do today with the Committee's support. The hon. Member for Wrexham asked about advertising. The new arrangements will be brought to candidates' attention by the regulations and advertising that apply to each vacancy. Progressively, it will become more widely known that other EC nationals can apply for a certain range of civil service posts for which they could not apply previously. Other EC countries will move progressively in line with what we are doing today. Finally, having been a Minister dealing with immigration and nationality matters both at the Foreign Office and the Home Office, I know that it is almost impossible to have a debate on such issues without Macao being raised. It would be a sad lacuna if the question of Macao's citizens did not arise. I have to tell the hon. Member for Wrexham that on the assumption that the people of Macao become citizens of Portugal, they would be EC nationals and so could take full advantage of the provisions of the treaty of Rome. So eventually there could be a Macao cook in the civil service catering organisation, but perhaps that is rather a long shot. People who live in Hong Kong will not be affected by the changes for the particular reason of their nationality status. This has been a useful debate and I think that the order has the general support of the Committee.

Question put and agreed to.

Resolved, That the Committee has considered the European Communities (Employment in the Civil Service) Order 1991.

Committee rose at two minutes to Eleven o'clock.



Howells, Mr. Geraint (Chairman)

Amos, Mr.

Beith, Mr.

Bowden, Mr.

Evans, Mr. David

Fishburn, Mr.

Marek, Dr.

Marshall, Mr. John

Primarolo, Ms.

Renton, Mr.

Roe, Mrs.

Soames, Mr.

Taylor, Mr. John M.