Borough Freedom (Family Succession) Bill [HL]

– in the House of Lords at 9:17 pm on 24th April 2002.

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Photo of Lord Mustill Lord Mustill Crossbench 9:17 pm, 24th April 2002

My Lords, I beg to move that this Bill be now read a second time. Over recent months, this House has been preoccupied with great affairs of state, both international and domestic. Indeed, this evening the House heard a thoughtful debate on an issue of great social importance. It may seem inappropriate to take up even a short time at the end of the day on a miniature Bill which might at first glance seem both obscure—it is not easy to read—and trifling. However, I suggest that, even if the Bill is on a small scale, it is not trifling. If it finds favour, it will eliminate a gender anomaly which should not exist. As to obscurity, I shall endeavour to penetrate its language under five brief headings.

The headings are as follows: first, what are borough freedoms; secondly, what is their legal status; thirdly, what is the anomaly which the Bill seeks to correct; fourthly, why should this be done by Parliament rather than in some other way; and, fifthly, what will be the effect of the Bill?

First, I turn to the borough freedoms. One has to go back to medieval times to understand this ancient institution. It is probably the oldest legal institution that exists in the United Kingdom today. The control of local trade and local government was in the hands of a body of freemen, so called because they were free of the restrictions on trade and other activities which applied to persons outside the liberties. Parliamentary suffrage was also limited to freemen, who were the burghers of the boroughs. These privileges became a source of abuse and were sharply restricted by the Municipal Corporations Act 1835 and by the opening-up of the parliamentary suffrage which was going on at the same time.

It would have been possible at any time during the past 160 years for Parliament simply to abolish the freedoms, but it never chose to do so. Instead it recognised and preserved their status by a succession of Acts of Parliament, beginning with the 1835 Act and continuing until the Local Government Act 1972.

By the present day the tangible benefits of the membership of a freedom have been reduced, so much so that in some boroughs they are non-existent. I need not take up time by giving illustrations of the modest benefits which exist because all the freedoms are different and it would take a long time to describe them across the board.

Nowadays, the reason people still wish to become freemen is not personal gain but because it identifies the member with the local community in a way which is much more intimate, continuous and long-standing than the exercise of the local government franchise or election to local councils. The freemen are not competitors of councillors and aldermen. The two systems exist in parallel and in harmony.

Secondly, what is the legal status of the freedoms? They are creatures of ancient custom—very ancient indeed. As I said, they are probably the oldest legal institutions in this country. They are creatures of custom not of statute. Although statute has recognised their existence, it has not created them or provided mechanisms enabling the freemen to bring them up to date by their own consent. Some ancient charters contained such mechanisms but, for reasons with which I shall not trouble the House as it would take some time to explain and would not be very illuminating, those powers have not survived the successive reforms of local government. So these ancient customs remain frozen in the state in which they were when they first came into existence hundreds of years ago.

Thirdly, what is the wrong that the Bill seeks to remedy? The answer lies in the fact that the customs are frozen in their ancient forms. Since changes were made at the time of great reforms 160 years ago, persons can only become freemen by descent from a parent freeman, and in a substantial proportion of boroughs this descent can take place only in the male line. Daughters are thus barred, for no valid reason, from the benefits—largely intangible but benefits none the less—of succeeding to this ancient status.

Fourthly, assuming this to be wrong—and I hope the House will assume it to be wrong—why take up the time of Parliament in putting it right? Are there no other ways in which the courts could perhaps provide a solution with the aid of the anti-discrimination provisions of the human rights legislation? Unfortunately, the answer seems to be "no". I say "seems" because the legal status of these institutions is so strange and is lost in the mists of history. I can say, however, that legal research suggests that even through the courts the remedy is at the very best speculative and almost certainly non-existent. So it falls back on Parliament to put the matter right. That is why I propose this Second Reading.

What is the effect of the Bill? Primarily, as will appear from its wording, to insert a provision enabling the daughter of a freeman to be admitted as a freeman of a city or town notwithstanding her gender. This will put right across the board, and once and for all, the need for each borough freedom individually to embark on the costly and highly speculative task of trying to find some solution of a different nature.

In Clause 1(2) of the Bill there is a correction of the absurdity that a person can only be a freeman if born within the precincts of the borough. There is a brief reference to the fact that the Act does not bear on the City of London, the freemen of which are governed by a completely different regime. This Bill has nothing to do with honorary freemen. When one reads in the newspapers that someone has been made a freeman of a borough, that is an entirely different matter, with which this Bill is not concerned at all.

There it is. This is a modest measure. Thrones will not tumble whatever its fate, but gender discrimination is wrong. The fact that it is not a great matter does not prevent it from being wrong and it is something which, in the absence of any other means, Parliament can fittingly put right. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Mustill.)

Photo of Lord Addington Lord Addington Liberal Democrat 9:26 pm, 24th April 2002

My Lords, I congratulate the noble and learned Lord on bringing this Bill before us. It made me begin thinking about certain memorable occasions in the past when this House discussed the hereditary principle. I declare almost an interest, being one of the surviving hereditary Peers—one of the "preserved in aspic" brigade, as it were. I have an older sister and the question has been raised, "Why should you be there and I am not?" There are those wonderful acrimonious moments that one can only have in families.

As regards the Bill itself, I agree that there is no reason for resisting it. Presumably, it refers to the Norman idea of preserving estates and things in one place, which we have officially got rid of. The idea that daughters should not be allowed to inherit has been done away with over time. And the hereditary principle has been finally dealt with in this Chamber.

Whether freemen of the borough still have a place in modern society is not addressed in the Bill. The principle of whether such an anomaly should be allowed to continue is still there and if it is primarily honorific we should be able to say yes to that. I cannot see any reason why the principle should not be endorsed, but whether Parliament should spend more time on it than a short debate of this kind is open to discussion. I shall not try to do any more of the Government's job than that. It is an interesting example of how history tends to continue unless one gets rid of it, and that is always very true in legislation.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) 9:28 pm, 24th April 2002

My Lords, I thank the noble and learned Lord, Lord Mustill, for introducing this Bill and for his very eloquent and interesting explanation of its purpose and the wrong that it seeks to remedy. In essence, it would end primogeniture so that where the son of a freeman may claim to be admitted as a freeman, the daughter of a freeman may likewise claim to be admitted. It would remove any requirement that may exist limiting admission to the freedom of persons born within a borough's boundaries. As we have heard, the Bill does not seek to reintroduce admissions by gift or purchase. Nor does it deal with honorary freemen or freemen of the City of London.

This is a simple Bill, which addresses a small point. That said, it contains an important principle in that it confronts and removes an element of unjustified sex discrimination from the Local Government Act 1972. Her Majesty's Opposition are wholly supportive of the Bill and we wish it well in what we hope will be a rapid passage both in your Lordships' House and in another place.

Photo of Lord Filkin Lord Filkin Government Whip 9:30 pm, 24th April 2002

My Lords, as the noble and learned Lord, Lord Mustill, said, the Bill seeks to modernise succession rights to the title of freemen by providing that the title and the property rights that go with it can be handed down through the female line as well as the male. As the noble and learned Lord indicated, there are two similar titles: that of freeman and honorary freeman. Both are dealt with by the Local Government Act 1972.

Section 249(5) of the 1972 Act provides that a London borough or a district council having the status of city, borough or royal borough can admit any person to be an honorary freeman of that place. The decision is entirely at the discretion of the council which can make any person an honorary freeman regardless of gender, race, age or disability provided that the individual is a person of distinction or, in the opinion of the council, has rendered eminent service to the locality. The title is honorific and, beyond the distinction, it confers no other rights or duties. It is bestowed for life only and cannot be inherited by the individual's heirs.

The noble and learned Lord's Bill does not affect the right of these local authorities to bestow honorary freedom on individuals of either gender. Instead the Bill deals solely with the more ancient right to be a freeman of a town or city. That right was intimately bound with the rights of admission to the guilds and, in its present form, is both an inherited right and one that can confer property rights on the title holder.

As the noble and learned Lord said, it was the Municipal Corporations Act 1835 which first reorganised the governance of local authorities along modern lines. In doing so, it swept away the existing arrangements which gave freemen special rights in the election and governance of the pre-1835 corporate boroughs. As a class, freemen of the old corporate boroughs also enjoyed the exclusive right to benefit from the rents and profits of certain corporate land and property. The 1835 Act preserved those rights and since 1835 successive local government Acts, including the 1972 Act, have reconfirmed the position.

The 1835 Act and its successors also froze the basis on which a person can be admitted to a freeman. They invariably provide for a right of succession so that a freeman can pass on his title and property to his heirs. However, reflecting their antecedents they are often based on patrimony and cannot, therefore, be passed from a father to his daughter. It is this anachronism which the Borough Freedom (Family Succession) Bill seeks to remedy. It does so by amending Section 248 of the Local Government Act 1972 which reconfirmed the right of freemen first preserved under the Municipal Corporations Act 1835.

I hope that noble Lords find this explanation helpful. The Government will not take a formal view for or against the Bill. We shall take no steps to oppose its progress through your Lordships' House.

Photo of Lord Mustill Lord Mustill Crossbench 9:32 pm, 24th April 2002

My Lords, I am grateful to noble Lords for giving their attention to this modest matter. I do not think that I should take up time by making further comment beyond what I have already said. I invite your Lordships to read the Bill a second time.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at twenty-six minutes before ten o'clock.