The
Chairman: Order. Before Mr. Harper attempts to
respond to that interesting point, may I suggest we return to the
subject under discussion?
Mr.
Harper: I am grateful to my hon. Friend the Member for
Henley and to you, Lady Winterton, for those interventions. As has been
rightly pointed out, my new clause amends only the 1838 Act, which
applies only to the Forest of Dean. Following your injunction, Lady
Winterton, I ought to focus purely on that. To cheer you up and give
every member of the Committee something with which they can agree, let
me say that free miners were also requested to fight in France, and
fought a number of famous battles, including at Agincourt. They were an
essential part of the King’s armoury and were excellent
archers—expert with the longbow as well as renowned for their
mining
skills. Towards
the end of the 18th century, conflicting mining interests
began to arise in the Forest of Dean, particularly with the increased
demand for iron and coal created by the industrial revolution. Powerful
outside interests began to look to the untapped coal and iron reserves
in the Forest of Dean. They saw that it was reserved solely for the
free miners and looked for a way in. The free miners mine law court,
which had successfully regulated free mining for centuries, became
bogged down in disputes and embroiled in the pressures to allow outside
interests into the operation and ownership of the mines. Towards the
end of the 18th century, the mine court records were stolen
by Crown officials and the court ceased to
operate. The
Crown saw its opportunity and decided to rationalise the system to suit
all interests. A royal commission was appointed in 1831—we are
just getting to when the 1838 Act was passed—to inquire
into the nature of the mineral interests and free mining customs in the
Forest of Dean. Five reports followed, culminating in the passage of
the 1838 Act, which we are now discussing and which my new clause would
amend. This public Act confirmed the free miners’ exclusive
right to the minerals of the Forest of Dean. The Act made few changes
to the customs, but one important change was that the free miner would
now be allowed to sell his gale to a non-free miner, which broke open
the system and allowed other people to
mine. The Act
otherwise clarified the rules of working, which effectively put the
customs that had been in place for hundreds of years into parliamentary
statute. The 1838 Act is still the basis for free mining today. The
schedules to the Act have strict rules for working gales in the hundred
of St. Briavels and, as I have said, free mining is administered by the
deputy gaveller, John Harvey MBE, whose offices are at Bank house in
Coleford.
I come to the
requirements to become a free miner, which goes to the nub of the
matter. According to the Act, one has to be a man born or living within
the hundred of St. Briavels, be over the age of 21 and work for a year
and a day in a mine within the hundred. For members of the Committee
who might be wondering what a hundred is, its origins are fairly
obscure but a hundred became a sub-division of a county that had its
own court. It has been suggested that it was an area where a mediaeval
king could demand the services of 100 fighting men. In the case of the
St. Briavels hundred, the King would demand the services of skilled
miners. The area covered by the hundred of St. Briavels consists of the
statutory Forest of Dean and each parish touching the forest
boundary—a considerable portion of my
constituency. Mr.
David Drew (Stroud) (Lab/Co-op): I understand a little
about this. I wonder what the repercussions would be for other
interesting groups in the forest, including the verderers and the
burghers. Do they have similar unequal rights regarding gender or are
they already socially libertarian in their
attitudes?
Mr.
Harper: The hon. Gentleman—my neighbour across the
River Severn—raises an interesting point. To my knowledge, the
statutory prohibition on women becoming free miners does not apply to
those other historical offices, so I do not think that the same arises.
If he is trying to tempt me into meddling with other ancient
traditions, one at a time is probably more than enough for
anyone. Once
registered as a free miner by the deputy gaveller, a man—it can
be only a man at the moment—may claim up to three gales from the
Crown if they are not already being worked. He may make applications
for any gale that he believes may become vacant. Once granted to him,
he becomes the owner of the underground area and can work the minerals
defined in the gale.
10.45
am Originally,
the King had the right to put in his own man to work with the free
miner and share the profit. However, since the 1838 Act was passed, in
lieu of the right to put in the King’s man, a share of the
mineral produced from the gale is agreed at the outset and the royalty
becomes payable to the Crown for each tonne of mineral raised. The
taxman—the Treasury—still gets his
take. There
was also a complication when coal was nationalised. The Forest of Dean
was exempted due to its unique form of ownership and history. Because
of that, the Coal Industry Nationalisation Act 1946 recognised the
existence of free miners and a royalty continued to be paid to the
National Coal Board—to the free miners—as a share of the
minerals extracted until the last of the deep-coal mines closed in
1965. There
are about 150 free miners alive today. Only a handful of small
collieries still operate. There is one iron mine, Clearwell Caves, and
also five small stone quarries within the statutory forest. Free mining
has a long and proud history and it is one of the things that makes my
constituency unique.
The hon.
Member for Glasgow, East touched on why it is necessary to amend the
1838 Act and why this cannot be done any other way. When my constituent
Mrs. Morman first contacted me, I contacted the Library to
see what the legal position was and whether there were any other
remedies. Those at the Library went back to the original Act and read
it out to me. They stepped through the other legislation that we have
been discussing while debating the Bill to see whether they provided a
remedy. They looked at the Sex Discrimination Act 1975, asked whether
the denial to a woman of the right to be a free miner contravened that
Act and came to this
conclusion: “Given
the peculiarity of the right to be a free
miner”, the
answer was not clear cut and my constituent needed to seek professional
legal
advice. Those
at the Library ran through the EU gender directive and the Sex
Discrimination Act and looked at the provision of goods and services.
They asked
whether “access
to the natural resources in the mines could be considered access to a
‘good’, or whether access to being a free miner could be
seen as the provision a
‘service’.” They
explained, by looking at the textbooks on discrimination law, whether
that would be captured. They looked at whether being a free miner was
akin to being a member of a private club and suggested that it might
well be, which might give some difficulties as well. They then ran
through the changes being proposed in the Bill and again suggested that
it was rather complicated and that my constituent might want to seek
professional legal advice, thereby making work for
lawyers. Those
at the Library finally turned to looking at sex discrimination in
employment. They made the point that the Sex Discrimination
Act “makes
it unlawful for a prospective employer to discriminate on basis of sex
in the arrangements they make ‘for the purpose of determining
who should be offered that employment’. However the definition
of the word ‘employment’ may mean that this provision is
not relevant to the application to be a free
miner.” They
quoted a legal case that made it clear that if there was not the
obligation to do work, it would be “fatal” to proclaim
employment discrimination. They came to the conclusion that that did
not work
either. The
Library then looked at the existing gender equality duty in the Sex
Discrimination Act. That is superseded by the public sector equality
duty, which applies to public authorities. Those at the Library noted
that the deputy gaveller, who administrates the free miner system and
registers the claim, is a Crown Officer of the Forestry Commission,
which is a public authority. They then noted that there were some
exceptions in section 21(4) of the Sex Discrimination Act,
which had carried forward into the Bill—where the prohibition on
discrimination does not apply to things in the table of
exceptions. One
of the actions in the table of exceptions is if a public authority is
complying with an Act of Parliament. If the deputy gaveller working for
the Forestry Commission was complying with an Act of
Parliament—the 1838 Act, for example—that would override
or provide an exception to the gender equality duty and the public
sector equality duty. We have kept that exception compliant with the
statute in the Bill, so again, it would not provide a remedy for my
constituent. After that comprehensive briefing from the Library, I came
to the
conclusion that the existing legislation and its translation into the
Bill would not provide a remedy for Mrs. Morman. That is why
I concluded that I needed to try to amend the 1838
Act. There
are a couple of other relevant points. I have been contacted by other
constituents who are concerned that the tradition of free mining is
dying out, which provides another reason to support the new clause. One
of the requirements to be a free miner is to be born within the hundred
of St. Briavels. In the Forest of Dean, we used to have a maternity
unit at Dilke Memorial hospital, which is within the hundred of St.
Briavels. Anyone born there was a true forester and, if male, could
qualify as a free miner. That unit was closed some years ago, and most
babies born to families who live in the Forest of Dean are now born at
Gloucestershire Royal hospital in Gloucester, which is well outside the
hundred of St. Briavels. It is worth noting that the rate of home
births in my constituency is significantly higher than the national
average, and I suspect that that is to keep the tradition
alive. There
are concerns about the tradition of free mining dying out completely. A
local lady, Dr. Charlotte Jones, is not a constituent of mine but lives
in the neighbouring constituency of Monmouth. She used to work as a GP
in the maternity unit at Dilke Memorial hospital, and she wants a law
passed to designate Gloucestershire Royal hospital as being inside the
hundred of St. Briavels, if that is where the family involved normally
resides. Unless I am very lucky with the private Member’s Bill
ballot, that change is beyond my
control. My
new clause, however, would double the number of people who could
qualify as free miners by including women as well as men. One concern
that has been raised is about whether women are allowed to fulfil the
other criterion in the Act, which is to work in a mine for a year and a
day. I checked the Mines and Quarries Act 1954, and section 124(1)
prohibits women and young people from working below ground in a mine.
Fortunately for these purposes, however, the Employment Act 1989
repealed those restrictions, so there is no legislative prohibition on
women working in a
mine. In
the 1838 Act, one of the two requirements that someone has to fulfil to
become a free miner is working in a coal or iron mine for a year and a
day, and it is perfectly possible for a woman to comply with that. The
only thing that she cannot comply with is the requirement to be a
man. The Bill has
equality at its heart. My new clause would do nothing more than give
women the same opportunity as men to become free miners, and it would
fix a real injustice that affects not only Elaine Morman, but others
like her who wish to follow in their family tradition. I commend the
new clause to the Committee.
Mr.
Tim Boswell (Daventry) (Con): All members of the Committee
owe a debt of gratitude to my hon. Friend for the charming way in which
he moved his interesting new clause. I promise that I do not wish to
speak at length, but I wish at least to support the spirit of what he
is saying. I can adduce three reasons for doing that. First, I happen
to be chair of the all-party parliamentary group on archives, and it is
remarkable how often archives have a way of coming to light.
In relation to
my own land holdings, which I have declared on other occasions to the
Committee and in the register, I have riparian ownership of land
adjoining the opposite canal. When it was necessary for works to be
carried out, I politely asked whether I could be given the legal
authority for doing so, and I was sent a photostat of the Coventry to
Oxford Canal Act 1769, dealing with Oxford canal companies, which I
found of absorbing
interest. If
hon. Members can spare time from the Committee shortly to have a look
at the exhibition in Westminster Hall on archives in the community,
they will see how these matters return. I will go to say in a moment
that I think that this is an important and perhaps wider issue than my
hon. Friend
suggested. My
second point is that at one stage I had ministerial responsibility for
the Forestry Commission’s work in England, and therefore some
responsibility for the royal forests the New Forest and the Forest of
Dean, which I enjoyed visiting. One realised, at one’s peril,
the complexity of the ancient governance and how important it was not
to interrupt it wherever possible, and to allow the ancient traditions
to continue, albeit adapted for modern
conditions. The
third point of interest to the Committee is that I have occasionally
referred to my having a Romany name. There is an argument in the family
as to whether there is a derivative from Scotland, and if so whether it
comes through the Forest of Dean, where we appear to have fled for a
period after the battle of Worcester in 1651. I cannot verify that,
although possibly my cousin
could. To
conclude the historical references, the same cousin assisted the
Government in developing or working up the Evesham custom for market
gardening land into the agricultural holdings legislation. That is all
by way of preface, but it makes the point that even if some provisions
look like the pursuit of narrow antiquarianism, they are important,
especially locally, and are still alive and active—God bless
them. We
come to the material question. My hon. Friend is entirely right to say
that there is a real ill that should be addressed, and I am sympathetic
to him and admire his efforts. I have something I do not know, which
undoubtedly the Solicitor-General will wish to respond on—she
can probably give us a lecture on hybridity for one thing, which I have
never fully understood, but it is a good stick to beat people with when
they are confused about
legislation. Perhaps
I can put it this way: if one reviews legislation of such a kind that
has general impact, however good a job the parliamentary draftsperson
has done in picking up old legislation for appeal or modification, they
do not necessarily cover the whole field, in all that they can claim to
have done
so. I
noticed with interest schedule 27, the schedule of repeals and
revocations, which I am sure the Committee is familiar with. We start,
in comparison with modern times, with the Equal Pay Act 1970, which was
repealed in whole, along with the other cardinal legislation on sex
discrimination and race relations—it is now embraced by the
Bill. So, we have never trawled back, although I
conceive that many of the old provisions—I am not familiar with
the text of the 1970 Act in detail—were picked up at that
time. What
I am saying to the Committee—I hope the Solicitor-General will
think about this—is that there must be a raft of ancient
provisions governing the conduct of guilds, which have existed since
the middle ages, that may have codified customs like the ones in the
1838 Act. They have never caught up with modern social and economic
conditions, and probably still have some gender-based, or other
indefensible—in modern terms—restrictions on employment
or activities. If that is the case, my hon. Friend, who is a modest
person, is perhaps being too modest in his new
clause. Although
I hate Henry VIII clauses in general, I suspect that we need some power
to enable the rules to be changed, possibly by statutory instrument,
where legislation is creating a real, not hypothetical, ill so that the
particular remedy may be
addressed.
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