Equality Bill

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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.
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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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