CONFIDENTIAL
Legal
(3) Do we wish to pre-empt an EC challenge and, if so, what are our options?
The
4. Any answer to (1) is speculative although a current domestic case with an Industrial Tribunal is likely to go to the EC (Annex A para 6). On (2), it would be very difficult to justify our stance. Grounds of historical relationships with Ireland and the Commonwealth may elishing Treasury Solicitor
the EC. not carry much weight with has advised that "it would be extremely difficult to defend any post as a 'public service' post if it is, has been, occupied by a Commonwealth (non UK), Or, in particular, an Irish citizen" (unless the duties of the post have changed considerably). On (3), any value in pre-empting the -question is outweighed by other factors (see below).
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From what has been said in para 4 above, it may be prudent, from a purely GB viewpoint, to pre-empt an EC challenge by removing nationality restrictions on all EC nationals from public service posts in the HCS. Although this would enable departments and agencies to maximise EC potential and eliminate the unfair advantage currently enjoyed by Irish nationals, it would sharpen differences with the NICS.
6. If we were to resist pressure from the EC for GB to treat all other EC nationals as favourably as we do Irish citizens, we might be forced to provide equality of treatment by withdrawing the present concession from the Irish. This would mean reclassifying those public service posts held by Irish citizens as non public service, if that were appropriate, and, if not, removing Irish citizens from such posts.
That would be difficult, practically and politically. In any case it may be indefensible to deny EC nationals access to public service posts given the legal advice (para 4) that the designation of posts as 'public service' is compromised where
they are held or have been held by Irish Or Commonwealth (non UK) citizens, or by other foreign nationals employed with an Alien's Certificate.
7.
The second anomaly arises because the NICS nationality provisions interact with the first (para 6). The NICS started almost from the mirror image of the situation here. Far from allowing Irish nationals to occupy any post, such nationals were, for the most part, barred through the Northern Ireland Civil Service Commission General Regulations made under the Civil Service (Northern Ireland) Order 1986. The NICS Commissioners nevertheless have discretion to grant exemption, in exceptional circumstances, from the requirement to be a Commonwealth citizen. At present this exemption is only applied to citizens of the Republic of Ireland. Additionally, Irish nationals, like other EC nationals, are now eligible for non public service posts in NICS. From an EC standpoint the only anomaly internal to Northern Ireland arises from the operation of the exception mentioned above.
The comparison with GB raises difficulties. particular, the option of GB barring Irish nationals from public
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