HL Deb 07 December 2004 vol 667 cc812-8

7.40 p.m.

Lord Graham of Edmonton

My Lords, I beg to move that this Bill be now read a second time. I am indeed flattered to find so many of your Lordships in their place to pay attention to the Bill that I have pleasure in presenting today. As I do so, I feel obligated to offer some insight into the whys and wherefores as background. For much of that I am indebted to the noble and learned Lord, Lord Mustill, who piloted the self-same Bill through your Lordships' House in 2002. When he did that, he earned what I hope will be my fate today; support from the Conservative and Liberal Democrat Benches and no opposition from the Government, which is par for the course for a private Bill.

If I have any interest to declare, it could be that, as my home town is Newcastle upon Tyne, I have a clear memory of the influence of the place of freemen in such a great city as Newcastle. One of the jewels in its crown is Town Moor, a place with fond memories for me. It is where the annual fair, known as "The Hoppings" and associated with the running of the Pitman's Derby on the Gosforth race course took place. It is where a new home for the Magpies—Newcastle United—was mooted recently. The power and influence of the freemen of Newcastle was and is such that they could and did withstand the power of that famous football team.

The noble and learned Lord, Lord Mustill, set out the arguments cogently and, in my opinion, persuasively. I am deeply indebted to him for allowing me to use his arguments today. He wishes the Bill well.

This Bill will eliminate a gender anomaly, which I shall present under the five following headings. First, what are borough freedoms? Secondly, what is their legal status? Thirdly, what is the anomaly that the Bill seeks to correct? Fourthly, why should that be done by Parliament rather than in some other way? 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 that applied to persons outside the liberties.

Parliamentary suffrage was also limited to freemen, who were the burghers of the boroughs. Those 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 that 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 that people still wish to become freemen is not personal gain but because it identifies the member with the local community in a way that is much more intimate, continuous and longstanding 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 those 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. In a substantial proportion of boroughs, that 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—I hope that 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 antidiscrimination provisions of the human rights legislation? Unfortunately, the answer seems to be "no". I say "seems" because the legal status of these institutions is strange and 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? It is 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. That will put right across the board, 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 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. The fact that it is not a great matter does not prevent it from being wrong. It is something which, in the absence of any other means, Parliament can fittingly put right.

Finally, I plead in aid some correspondence that I recently received. Enclosed in a letter from a freeman of Newcastle was a copy of an article in the newspaper of the Guild of Freemen in Newcastle, which states: When, or should I say if, the Borough Freedom (Family Succession) Bill becomes Law, the daughters of Freemen throughout the land will have the right to become Freemen themselves, as will their own sons and daughters…The Freemen of Newcastle upon Tyne Stewards' Committee are very keen to legally introduce Lady Freemen into our City, as is the Newcastle City Council". I am told that the national body of freemen of England and Wales also give their support.

This is a modest measure, which is in line with current thinking. This House can approve it, although it failed three years ago because it was introduced very late in the Session. My problem may be that the next Session may end somewhat quicker than any of us had hoped. However, our job is to give this a fair wind. It will then be my responsibility to find someone in the other place to take it on. I beg to move.

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

7.48 p.m.

The Earl of Mar and Kellie

My Lords, it is not often that I rise to intervene on a Bill that includes the words: This Act extends to England and Wales only". I must confess that I would prefer to see the spelling in the Scots form of "burgh".

I declare my interests. Apart from being a life Peer, I am also a hereditary Earl; I am the Hereditary Keeper at Stirling Castle; I am a liveryman of the Worshipful Company of Cordwainers of the City of London and, hence, a freeman of the City of London. In addition, my honourable Scottish friends have just abolished me as a feudal superior. Obviously, I am a blatant beneficiary of male primogeniture. Fortunately, my sister is younger than me. However, the Bill is not about primogeniture. It is about female inheritance, which I applaud.

Noble Lords on these Benches will welcome the explanation of the Bill made by the noble Lord, Lord Graham of Edmonton. He makes a good case for these two changes to inheritance practice—in particular that of female inheritance, which is slowly becoming more prevalent, especially as it reduces discrimination against women. However, knowing full well that short of an Act of Parliament to change our inheritance laws, no lady can inherit the earldom of Mar and Kellie, clearly there is a long way to go.

I hope that the noble Lord, Lord Bassam of Brighton, will be able to promise more active support than that offered by the noble Lord, Lord Filkin, in response to the Bill brought forward by the noble and learned Lord, Lord Mustill, in 2002.

In conclusion, I presume that, if and when enacted, this Bill will produce many more male and female freemen.

7.51 p.m.

Lord Dixon-Smith

My Lords, it is a pleasure to thank the noble Lord, Lord Graham, for his explanation of the Bill. I congratulate him on bringing a Bill before the House that fits on to one page—unlike the main business being considered today. That Bill comprises many pages. A short Bill makes life a great deal simpler and more comprehensible.

This is an interesting measure. The noble Earl, Lord Mar and Kellie, mentioned that it endorsed the hereditary principle, albeit in a somewhat limited way. None the less, we are considering the rights of succession to a title. While it may not involve members of the legislature, the principle is the same.

For the sake of the noble Earl, Lord Mar and Kellie, perhaps I should mention en passant that the last person to introduce a Bill in this House on the issue of inheritance was the noble Lord, Lord Archer of Weston-Super-Mare. His Bill would have done precisely what the noble Earl has advocated by giving females the right to inherit hereditary titles where they do not normally have that right. But that is now simply a matter of record.

It is a simple Bill, which would give many local groups and local people a great deal of pleasure. I know that that is the motivation lying behind it and, in that spirit, we support it.

7.52 p.m.

Lord Bassam of Brighton

My Lords, your Lordships' House is always at its best when discussing the hereditary principle. It is a bit ironic that my noble friend Lord Graham of Edmonton has volunteered to take a Bill advocating that principle through this House, but no matter. I understand entirely why that is the case. Moreover, we have a distinguished if rather small audience gathered to hear the Government's response. Indeed, it is most impressive that we have in their places to support the Bill a freeman who is a member of the Worshipful Company of Cordwainers and, on reading the CV of my noble friend Lord Graham, I see that he is a freeman of the Worshipful Company of Butchers. Between the two, I am sure that they will advocate the case with great enthusiasm, and that the noble Lord, Lord Dixon-Smith, will add his slice of interest and introduce a little extra flavour to the debate.

Lord Dixon-Smith

My Lords, the noble Lord has reminded me that I should have declared an indirect interest as a member of the Farmers' Company. I am a freeman of the City of London.

Lord Bassam of Brighton

My Lords, this is a "Have I Got News For You" moment: I am the odd one out. I am not a freeman, honorary or otherwise.

As my noble friend Lord Graham has explained, the Bill seeks to modernise the succession rights to the title of freeman 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.

The Government are enthusiastically neutral on the measure. I cannot go as far as the noble Earl, Lord Mar and Kellie, would like, but we certainly do not wish any kind of ill wind on this legislation. We are happy for it to go on its course, and we understand the importance of bringing it forward.

When I collected my briefing, I thought that this would be a minor matter, which is always an error. I was then presented with some background information that encouraged my interest in the subject. I can see that, historically, the freemen of boroughs were gentlemen who performed important duties of governance in their local areas.

In expressing a view, we should make clear for the record the difference between freemen and honorary freemen. There is sometimes an element of confusion in the public mind. Many of us will know of honorary freemen from our time in local government. Many of my friends, male and female, in my borough have become honorary freemen to mark the distinction with which they have served as councillors. That important honour needs to be better understood, and I am glad that people still receive the honorary title because it is a useful mark of local recognition of their work. Both of the terms, "freeman" and "honorary freeman", are dealt with by the Local Government Act 1972 and, as I have said, the similarity of the titles often causes confusion. This Bill will deal only with the title of "freeman".

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

The Bill brought forward by my noble friend Lord Graham does not affect the right of local authorities to bestow honorary freedom on individuals. Instead, the Bill deals solely with the more ancient right to be a freeman of a town or city. As my noble friend explained, such rights have their origin in the Middle Ages in the craft and merchant guilds that comprised the governance of medieval towns and cities. The right to be a freeman was intimately bound up with the rights of admission to the guilds and, in its present form, is an inherited right.

As my noble friend made clear, the Municipal Corporations Act 1835 first reorganised the governance of local authorities along modern lines. The Act provided for the election of mayors, aldermen and councillors on a vote of those who occupied property in the municipality. In doing so, it swept away the existing arrangements that 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 then, successive local government Acts, including the Local Government Act 1972, have reconfirmed that position.

The 1835 Act and its successors did more than preserve the rights of the freemen of towns and cities. Between them, they also froze the basis on which a person could be admitted to be a freeman. Such rights of admission vary from place to place, given that they are based on established local custom and Royal Charter. They provide for a right of succession so that a freeman can pass on his title and property rights to his heirs. However, reflecting their antecedence, they are often based on patrimony and therefore cannot be passed from father to daughter.

The Borough Freedom (Family Succession) Bill seeks to remedy that anachronism. It would do so by amending Section 248 of the Local Government Act 1972, which reconfirmed the rights of freemen, first preserved under the Municipal Corporations Act 1835.

I hope that that brief history and explanation will be helpful in our deliberations. The Government cannot take a formal view for or against the Bill, nor will we take any steps to oppose its progress through your Lordships' House. We will give it a fair wind but we cannot give it active and proactive support. We certainly understand and recognise the important principle that lies behind the small but significant Bill introduced by the noble Lord, Lord Graham of Edmonton. We wish it well.

8 p.m.

Lord Graham of Edmonton

My Lords, I have been in this place long enough to realise that the less I say the better at this stage. Speakers from all Benches have done the issue proud. I sense that they know what they are talking about because they are all well versed in local government.

There will be some places where the Bill is of no moment at all, but there will be others where this little easement will be viewed with delight. Beverley in Yorkshire has been prominent in asking for this to be done, and other towns may welcome it as well. I am sure that if the Bill progresses from this place to another place and is received warmly there, it will do a great deal for the wisdom of Parliament in putting this matter right. Its time has come.

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

Baroness Farrington of Ribbleton

My Lords, I beg to move that the House do now adjourn during pleasure until 8.40 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.2 to 8.40 p.m.]