Borough Freedom (Family Succession) Bill [HL]

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

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Photo of Lord Mustill Lord Mustill Crossbench 9:17, 24 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.)