TNAG-2396-FCO40-3483-Hong-Kong-Civil-Service-policy-1992 — Page 180

to

Ireland move

CONFIDENTIAL

service posts is ruled out for the reason given in para 6 above. The Question for the NICS therefore is, if GB moves in principle low all other EC nationals, (Irish citizens are already admitted) to be considered for public service posts, can Northern abandoning in this direction as well, thus further the almost complete bar on Irish nationals serving in the NICS? The NICS could move in this direction but, in deciding the way forward, political considerations will be relevant (see para 23).

Current Occupancy of Home Civil Service 'Public Service' posts by Irish or Commonwealth Citizens or by Alien's Certificate Holders

8. Because of the difficulties mentioned in paras 4 and 6 above the Treasury Solicitor suggested that we may need to find out how departments justify having Irish (or Commonwealth) citizens or the holders of Alien's Certificates in posts they are nevertheless classifying as 'public service' posts. Such information was not sought earlier because it might have been difficult and of doubtful cost effectiveness for departments/agencies to assemble. However, recent developments mean that the information will now be needed to assess the impact of possible policy changes. In

it would mean practice

first that departments would identify those posts which are occupied by Irish or Commonwealth citizens, and, assuming that is feasible, would then have to make an individual judgement on each post as to whether they could justify saying it fell within or outside the 'public service' definition. There would undoubtedly be instances of Irish Commonwealth) citizens occupying 'public service' posts who then have to be moved to 'non public service' posts.

is

nor

to

have to

IO)

may

9. Under the 1919 Aliens Restriction Act it is a criminal offence to employ an alien in the Civil Service. Under Section 51(4) of the British Nationality Act 1981 an alien is anyone who neither a Commonwealth citizen nor a British protected person,

a citizen of the

of Republic

Ireland. The European Communities (Employment in the Civil Service) Order 1991 allows EC nationals of Member States and certain members of their families

be

employed in posts other than those in the public service within the meaning of Article 48(4) of the Treaty of Rome. Thus it would be a breach of Section 6 of the 1919 Act, and therefore a criminal offence, if an EC national of a Member State, were to be employed in a public service post in the Home Civil Service

he,

she,

the (unless

fell outside

definition "alien" in Section 51(4) of the British Nationality Act 1981). It has been generally accepted by EOM and EQO that there is a need to remove this criminal offence. This would require primary legislation.

Or

10. When the Civil Service Order (Annex A para 1) was drafted, legal advice was:

"Although in

practice there is no prospect of prosecution being brought against a department for employment of an EC national in a public service post it is unsatisfactory that such an offence is capable of being committed in these circumstances."

3

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