Appendix 1: Borough Freedom (No. 2) Bill [HL]
Memorandum by the Department for Communities and Local Government
1. This memorandum relates to the Borough Freedom Bill as introduced in the House of Lords on 2 April 2008. It identifies the provisions in the Bill for amending legislation, and explains the purpose of the delegated power and the procedure proposed and why the power has been taken.
Background and purpose of the Bill
2. The Bill is a private member's Bill presented by Lord Graham of Edmonton. It has Government support, and the Bill as it now stands has been drafted by Government on the Lord's behalf.
3. This Bill makes provision in relation to 'freemen' and 'honorary freemen'. The status of freeman derives from the historic traditions of certain towns and cities in England and Wales, and admission as a freeman is dependent on local rules often based on heredity, apprenticeship or marriage. In some towns and cities the freemen, and certain persons related to or associated with them, have property or other rights. In contrast, the status of honorary freeman can be conferred by certain local councils on persons of distinction and persons who have rendered eminent services to the local area. As the name suggests, the status is purely honorary in nature, and confers no rights on the person so recognised. This memorandum deals only with freemen and not honorary freemen since there are no delegated powers in Clause 2 of the Bill.
4. The status and rights of freemen and of certain persons related to or associated with them were preserved by section 248 of the Local Government Act 1972 (Freemen and inhabitants of existing boroughs). However they are not a part of modern local government today and local authorities have only a limited involvement in their affairs (s248(3) provides that if after 1 April 1974 any person claims to be admitted as a freeman of a city or town, his claim for admission shall be examined by the chairman of the relevant district council and if that person's claim is established, his name shall be entered on the roll of freemen of that city or town).
5. This Bill makes provision for freemen to amend the law relating to rights of admission to the freedom of a city or town in certain cases where they consider it appropriate to do so, and particularly where the amendment will permit the admission of women.
6. The law relating to rights of admission of freemen and the rights of persons related to or associated with them derives from various sources, many of them very ancient. The most common sources are the terms of the relevant Charter and the custom of the borough, but rights and restrictions may also be found in local Acts, bye-laws and letters patent. The admission rules, which are administered by the local authority, vary from place to place but they invariably provide for a right of succession. There is always provision for the right to be inherited, and it is usually, but not always, passed only from father to son.
7. While the freemen of some towns and cities and their local councils have found sufficient flexibility in their rules to enable them to admit women or to make other amendments to their admissions practices, others have not been able to because the sources from which their rules derive are ancient or have no simple process for amendment. Charters and rules enshrined in custom pose a particular problem in this regard. The freemen in these areas now face difficulties in maintaining their numbers and in revising their rules to reflect changing times.
8. As this is a private Member's Bill, there has been no opportunity for pre-legislative consultation.
Clause 1: Admission of freemen
9. Clause 1, which inserts new sections 248A to 248C into the Local Government Act 1972, will enable the law relating to rights of admission of freemen to be amended.
10. The powers conferred by Clause 1 of the Bill enable the Freemen of a place to make amendments both to primary legislation (local Acts and Royal Charters) and secondary legislation. The method by which the Freemen may make amendments varies depending on the amendment which is being made and the source of the rule which is being amended.
11. There are two ways in which clause 1 delegates power to amend a provision, relating to rights of admission to the freedom of a city or town, which is contained in primary legislation. These are set out below.
Amendment of Charters and local Acts by resolution of the freemen passed under section 248C
12. The Bill provides that in limited circumstances the freemen of a town or city can, themselves, amend a provision of primary legislation, except that a provision of a public general Act may not be amended unless it relates only to the city or town concerned or to a specified group of cities or towns (see section 248A(10)). Where it is possible for the freemen to amend a provision of a local Act the amendment may be made by resolution passed under section 248C (Resolutions to make an amendment under section 248A or 248B). Under section 248C a resolution is passed if it meets the conditions set out in subsection (7). These are:
a) that the resolution is passed by a majority of the registered freemen voting on the resolution;
b) that the number of registered freemen voting on the resolution is at least 10% of the number of registered freemen to whom notice is sent under subsection (3); and
c) that the resolution is notified, in accordance with subsection (8), to the relevant council within six weeks from the voting date.
13. The amendments to Charters and local Acts which can be made under the Bill in this way are as follows:
a) An amendment under new section 248A(4) which provides that a woman has the right to be admitted to the freedom of a city or town in cases or circumstances which are specified in the amendment and in which a man has that right. This power is further limited by subsection (5) which provides that an amendment cannot be made under subsection 4 if its effect in any case or circumstances would be that a woman has the right to be admitted to the freedom of the city or town in place of a man.
b) Under new section 248B(1), any amendment which is consequential on an amendment of the type described in paragraph (a) above. The types of amendment it is envisaged that the freemen will make under this section are described in subsection 248B(1).
c) Under new section 248B(5), any amendment (including to a local Act) which is consequential on an amendment made under 248A(6) (an "admissions amendment") may be made in the same way that the admissions amendment is made under 248A(6); that is, by a resolution of the freemen passed under section 248C. Section 248A(6) allows any amendment to be made to the law relating to rights of admission to the freedom of a city or town, so far as the law amended is established by custom.
How will the powers operate?
14. It is recognised that the powers on this basis are unusual in that they allow a person, other than a Minister, to amend local Acts and Charters without parliamentary scrutiny. However, the Government considers that in the very limited circumstances in which the Bill provides for such amendments to be made (as set out above) and because of the very localised application of the laws concerned, the procedure which is proposed in the Bill is appropriate. Allowing the freemen to make amendments in this way will enable them to modernise their admissions criteria and to bring them in line with current equalities legislation.
15. Further, the Government considers that if the procedure for amending local Acts and Charters in these cases were more onerous, it is unlikely that the freemen concerned would be able to make amendments of the sort envisaged due to both administrative and financial constraints. At present, for example, where the law relating to rights of admission to the freedom of a town or city is contained in a local Act, the freemen concerned would need to persuade the relevant local authority to promote, under section 239 of the Local Government Act 1972, a local Act which amends the local Act in which the relevant admissions rules are contained. Local authorities are understandably disinclined, for administrative and financial reasons, to do this and so the freemen are left without any means of amending their admission rules. As the purpose of Clause 1 of the Bill is to allow the freemen of a town or city to revise their rules to reflect changing times and so as to enable them to maintain their numbers, the Government considers that it is justifiable in this instance to give the freemen the power to amend their own admission rules, but only in those cases which are provided for in the Bill.
Precedent
16. There are some precedents for amending legislation by the holding of a resolution, albeit by a local authority. For instance, under section 74 of the Local Government Act 1972 it is possible for a council to change the name of the area by a resolution passed by not less than two-thirds of the members voting at a meeting of the council specially convened for the purpose (county names, for instance, were first established by the 1972 Act).
Amendment of a Charter by Order in Council
17. New section 248A subsection (2) enables an amendment to be made to a royal Charter by an Order in Council if a resolution proposing the amendment has been passed by the freemen of a city or town under section 248C. This procedure is normal for many Charters, but an older Charter may be silent on the procedure for approving changes and in that case, where changes are sought by a chartered body, it is then necessary for the body formally to petition Her Majesty in Council for a Supplemental Charter, the text of which would include the amendments sought.
18. The effect of the Bill (section 248A(3)) is that where the law relating to rights of admission to the freedom of a town or city is contained in a Charter, which would otherwise need to be amended via a Supplemental Charter, the amendment can instead be made via the simpler route of an Order in Council. This saves the need for the freemen concerned to formally petition Her Majesty in Council for a Supplemental Charter which has time and cost implications.
Department for Communities and Local Government
May 2008
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