Borough Freedom (Family Succession) Bill [HL]

My Lords, I beg to move that this Bill be now read a second time. As I do so, I feel obliged 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. I introduced precisely the same Bill in December 2004. When he and I did that, we 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. Sadly, yet again, time was against me on the previous occasion; perhaps the third time I may be lucky. 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 the 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 racecourse took place, being run this year but 10 days ago. 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. The Bill will eliminate a gender anomaly, which I shall present under the following five 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 180 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 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 the freemen or provided the mechanism 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 the great reform 160 years ago, persons can become freemen only by descent from a parent freeman. In a substantial proportion of boroughs, the 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 that this be wrong—and 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 provide a solution with the aid of the anti-discrimination provisions of the human rights legislation? Unfortunately, I am told that 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. However, 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 a 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 is a correction of the absurdity that a person can be a freeman only 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. The Bill has nothing to do with honorary freeman. When one reads in the newspapers that someone has been made a freeman of the borough, that is an entirely different matter, with which the Bill is not concerned. The fact that it is not a great matter does not prevent it 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 I have 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 same 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 gives its support. This is a modest measure, which is in line with current thinking. The House can approve it, although it failed three years ago because it was introduced very late in the Session and fell last Session due to the date of the general election. However, our job today 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.)