New Clause 1

Equality Bill – in a Public Bill Committee am 10:30 am ar 7 Gorffennaf 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Free miners

‘(1) The Dean Forest (Mines) Act 1838 is amended as follows.

(2) In section XIV (Who shall be deemed Free Miners), line 1, leave out “male”.

(3) In section XV (Quarrymen to be deemed Free Miners for certain purposes), line 1, leave out “male”.’.—(Mr. Harper.)

Brought up, and read the First time.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I beg to move, That the clause be read a Second time.

I ask for the Committee’s indulgence. The new clause concerns a local matter that affects the Forest of Dean, my constituency. I want to take some time to lay out what is involved. I say to those members of the Committee who find it interesting that I am pleased to have interested them; the rest will have to indulge me in my constituency interests, which I am sure they will understand.

The purpose of the new clause is straightforward. It falls squarely within the scope of the Bill. It would amend the Dean Forest (Mines) Act 1838. In section XIV, under the heading, “Who shall be deemed Free Miners”, the Act states that

“All male persons born or hereafter to be born and abiding within the said Hundred of Saint Briavels” could be free miners. My new clause would leave out the word “male”. It would also amend section XV of the Act, headed “Quarrymen to be deemed Free Miners for certain purposes”, by leaving out the word “male”.

It is important to note that the new clause would not change the requirement under the Act that, to be become a free miner, the person must work for a year and a day in a coal or iron mine within the hundred of St. Briavels. It is important that a free miner should remain skilled in mining work and mining craft, and the aim of my new clause is to give women the same opportunity that is available to men.

Photo of John Mason John Mason Scottish National Party, Glasgow East

It strikes me that the legislation is slightly obscure and that the hon. Gentleman knows about it because he is from the area. Is it his opinion that there are hundreds of other similar pieces of legislation, which also need to be amended?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman is right: the legislation might seem obscure to him, but it is certainly not obscure in the Forest of Dean. I will explain later why I came to the conclusion that, to solve a real problem, it was necessary to amend the Act and to say why the framework within the Bill does not solve the problem. Will he just bear with me? When I reach the relevant point, he is free to intervene if he thinks that I have not dealt with it adequately.

This place should legislate, whether to create new laws or change old ones, only when there is a real problem to solve rather than a theoretical principle to deliver. The older the law—hon. Members can see the date of the Act—the more hesitant I am about changing it, and when it relates to the valued traditions of my constituency, I am even more cautious. The Free Miners Association would probably not be particularly enthusiastic about the change. I have discussed the matter with its president, Eric Morris, who represents a conservative association, with a small “c” rather than a large “C”. I am trying to make the change because the problem is not theoretical, but real, affecting a real constituent today. That is why it is worth attempting to reform the law.

At the moment a free miner can only be a man, says the Dean Forest (Mines) Act 1838. I have a constituent, Elaine Morman, who wishes to become a free miner, following in the tradition of her family. She works at Clearwell Caves, which is an iron ore mine, and she has attempted to register as a free miner. She has been refused by the deputy gaveller, an office under the Crown—I shall explain how that all works in a moment. He made it clear in his letter of 8 January 2009, titled “Application for Freeminer Registration”, that

“the principle obstacle to your application is that of gender. As you are aware, only male persons are permitted to be registered and extensive research indicates that there are no grounds for allowing variations to this registration requirement. Regrettably therefore, your application to be registered is refused.”

That was signed by John Harvey, the deputy gaveller of Dean forest, and an officer of the Forestry Commission. That is the nub of the problem that I am trying to solve with my new clause: to give Elaine Morman the opportunity, which would be available to a man who was in exactly the same circumstances as her, to be registered as a free miner.

Given that most, if not all, Committee members will be unfamiliar with free miners, it might be helpful to share a little background information so that hon. Members, including the Minister, can make a proper assessment of the case for my new clause. I shall keep my eye on you, Lady Winterton, to make sure that I am not straying outside the scope of my new clause.

Photo of Ann Winterton Ann Winterton Ceidwadwyr, Congleton

Mr. Harper, you can be assured that I shall be keeping my eye on you too.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful for that assurance, Lady Winterton.

There is an interesting and comprehensive description of free miners, available on the website of Clearwell Caves, the organisation that Mrs. Morman works for and on account of which she hopes to be registered as a free miner. That website makes it clear that, as the Act says:

“All male persons born or hereafter to be born and abiding within the said Hundred of St Briavels, of the age of twenty one years and upwards, who shall have worked a year and a day in a coal or iron mine within the said Hundred of St Briavels, shall be deemed and taken to be Free Miners.”

There is an official register of free miners, which is kept by the deputy gaveller, who is a Crown officer responsible for the administration of the free mining customs and for the collection of mineral royalties. Specific gales are granted to free miners, at their request, and the deputy gaveller keeps a record of the minerals and the particular areas in which they can work. In my constituency, ironworking was extensive by Roman times and has played an important part in the history of our country. In fact, the Forest of Dean was the most prominent iron-producing district in the British isles.

The free mining customs go back many years. The earliest known copy of the “Dean Miners’ Lawes and Privileges” is from 1610, but contains references to much earlier origins. There are 41 laws and privileges for the mining of iron and coal, and the rights for access and the method of staking a claim are outlined. The duties of the King’s representative, the gaveller, included the collection of royalties, as well as registering free miners. The exact date when those privileges began operating is not known, but in 1244 it was recorded that free miners already had the exclusive right to mine ore in the Forest of Dean—so they go back a considerable distance.

For those Scottish Members on the Committee, whose interest may be waning at this point, it is worth mentioning that there are many references to mediaeval free miners being instrumental in recapturing Berwick-upon-Tweed several times—in 1296, 1305 and 1315—as it passed between Scottish and English hands. Legend tells us that it was for their indispensable services during Edward I’s Scottish campaigns that he granted the Dean miners a royal charter, as he had with other mining districts such as Derbyshire. I hope that Scottish Committee members do not hold that against my new clause.

Photo of John Howell John Howell Ceidwadwyr, Henley

My hon. Friend is making an interesting and widely historical point. Does he recall, although I know that he was not around at the time, that Edward I’s campaigns against the Scots—I do not want to dwell on that point—also involved the miners of Derbyshire? Is he aware of whether the free mining tradition is alive and well in other parts of the country? I know that the 1838 Act was specific to his constituency, but does he envisage the same problem occurring in other parts of the UK?

Photo of Ann Winterton Ann Winterton Ceidwadwyr, Congleton

Order. Before Mr. Harper attempts to respond to that interesting point, may I suggest we return to the subject under discussion?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

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 18thcentury, 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 18thcentury, 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.

Photo of David Drew David Drew Llafur, Stroud

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?

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

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.

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.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry 10:45, 7 Gorffennaf 2009

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.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

My hon. Friend refers to historical customs and practices, whether in statute or not. The problem in this case is that if it involved just historical custom and practice, the way it is used would probably fall within the purview of existing discrimination legislation, and if not within that, certainly within the purview of the Bill. The problem is that because the provision concerning the Forest of Dean is an Act of Parliament, it triggers one of the statutory exceptions. Due to the legislation being an Act of Parliament, we need to amend that Act to fix the ill.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry 11:00, 7 Gorffennaf 2009

I am grateful to my hon. Friend for elucidating that explanation. I think he is exactly right. All I need to say to the Solicitor-General—we should not spend all day on the matter—is that there will be cases, which I doubt very much will be confined to the Forest of Dean and its distinct and proud tradition of free mining, in which things will be adrift from the spirit and intention of the Equality Act, as the Bill will become. There might be scope for some mechanism that will enable those matters to be redressed as and when an ill is discovered, and to be remedied appropriately. I hope that she will consider whether that approach could commend itself to the Government and to the Committee.

Photo of David Drew David Drew Llafur, Stroud

I accept what the hon. Member for Daventry said. I shall be brief, but I rise to support my neighbour, the hon. Member for Forest of Dean. I was born in Gloucestershire, but would never pretend to have any connection to the Forest of Dean. However, the issue is worthy of proper debate and of some settlement.

There are, as the hon. Member for Daventry said, many examples in statute in which particular groups have been and remain disadvantaged because of how, at that time, it was appropriate to form laws such that those who were able to take advantage of them could do so. That is clearly not the case nowadays and, if the Bill means anything, it should override some of those quirks of history and, indeed, of nature. I hope that that can be rectified, even if only one person is discriminated against, although I suspect that it would be many more.

If the legislation is to mean anything, we need to update other bits of legislation and make it clear that we believe in people being given an equal chance and not being prevented from taking on positions that may be somewhat historic and more to do with terminology than actions, but that are nevertheless important to people. I know how much people guard and still respect the title of free miner in the forest. It is held in great respect. If someone is not allowed the title, when they have met the other criteria, that is simply wrong.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I was pleased but not surprised that the hon. Member for Daventry is the chair of the all-party group on archives. Archives are important tools and I am pleased that there is an all-party group.

A tremendous British Steel archive in Redcar is very extensive and still being catalogued. It offers an important educational tool. For instance, there are the plans for the Sydney Harbour bridge, which was made from Redcar steel and put together by the Cleveland Bridge company. A young person from school can go to look at the archive and see how those plans developed, knowing that that was at the other end of the world, and at the same time can also see in the same archive his own grandfather’s clock card, so he can understand that he is part of a proud heritage in our steel-oriented area.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

I respond warmly to what the Solicitor-General has said. I confirm to the Committee that the group does not merely concern itself with what one might call antiquarian archives. We are very much and actively interested in the prosecution and dissemination of good practice in modern business and government archives as well.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I was reminded at some points during the contribution of the hon. Member for Forest of Dean of a quiz programme that used to be on TV when I was at school, and, for all I know, still survives, called “What’s My Line?” A panel had to guess from a mime done by the person coming in and through 10 questions what that person did for a living. The deputy gaveller would probably have baffled even Gilbert Harding, who I am just old enough to remember being on when I was at school, and would have won some special prize on “What’s My Line?”.

Another thought that I had while the hon. Gentleman was setting out his good, clear case for change was that it is a shame that under the legislation women are also excluded from mining humour. I do not imagine that the Forest of Dean miners are any less funny than the coal miners in County Durham used to be. I remember being told of one frequent practice, which was that when an apprentice went underground for the first time in the coal mine he was given a pound and told by his principal to stand there, because at 10 o’clock on a Monday morning the window cleaner would want paying. So it would be good if women could join in all of that fun, as well as digging for minerals in the Forest of Dean.

The 1838 Act is the basis for free mining today, but it made few changes to the pre-existing custom, simply clarifying the rules of the working of mines and quarries in the hundred of Saint Briavels and the Forest of Dean in Gloucester, putting the custom straight into  parliamentary statute. As the hon. Gentleman said, only men aged over 21, who were born there—but there are no hospitals, so I assume, as the hon. Gentleman said, that the qualifying status is more difficult to attain—who live in the area of the Forest of Dean and who have worked for a year and a day in coal mining can be free miners; quarrymen can do so too, so long as they satisfy the same qualifications and have worked a year and a day in a stone quarry. At the moment, women cannot be free miners. It is a birthright to be a free miner; my hon. Friend the Member for Stroud has said that it is a proud birthright, and one would imagine that that is so. It is derived from the 13th century, from King Edward I; the people who advise me suggested that that is the origin.

Sections 14 and 15 of the Act set out the conditions, and one of them is being a man. I acknowledge freely—especially now that we know that there is a woman who is interested in the status—that there is implicit ancient sexism in that Act. We would like to help, as much as we can, to stamp it out. The difficulty is what the hon. Member for Daventry invited me to lecture about, which is the issue of hybridity. This is a short lecture: where a Bill affects the private interests of some members of the group in a different way from others, it is a hybrid Bill. If it is going to be such, it must go through a different, more complex procedure than a public Bill, among other things, to allow those affected to make representations—presumably in this case, the woman, and perhaps the men, about whose attitudes we are not clear. The difficulty with including the new clause is that we would tumble the Bill into a hybrid, and we would have wasted all the time we have spent here in the Public Bill Committee, and require it, if it was to survive at all, to go through a different procedure. Clearly, that is not a practical option, and it is not one that is being recommended by the hon. Member for Forest of Dean.

We have looked at going the extra mile. All we have to do is look at how we can get the Bill through. But how can we help with the problem? It is not, we hope, the case that there are a large number of similar provisions. There has been a fairly deliberate attempt to change other legislation. The hon. Member for Daventry pointed out that the repeals in the back of the Bill are mostly from modern times. But, for instance, the Employment Act 1989 repealed a section of the 1975 Act, which did not allow females to work underground in a mine, to comply with a 1976 equal treatment directive on employment. There has been a distinct effort, particularly because of the pressures of European equal treatment directives, to identify any legislation that contains provisions that would not be compatible with those directives. We are confident that we are doing this on an ongoing basis, but if there are any lying doggo that we have not seen, we will be glad to have our attention drawn to them.

The hon. Member for Daventry talked about some sort of Henry VIII power. Section 2(2) of the European Communities Act 1972 allows changes by regulation to make our legislation compatible with European Communities legislation. It is adequate for all the provisions that I have referred to that have already been repealed, but it is difficult to know what application it would have here. I suggest that the best way forward for the hon. Gentleman would be to come top in the private Members’ ballot. However, his Bill would have to go through the hybrid procedure. We do not plan to include the provision  in the Bill, as that would spoil it completely, but we would be happy to go away and see whether we can use our combined resources to advise the hon. Gentleman on whether there is any other way forward.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the Solicitor-General for the way that she has outlined the Government’s position. Without wishing to tempt her into the full-blown lecture on hybridity that my hon. Friend the Member for Daventry alluded to, for my benefit, if not that of the rest of the Committee, I would like to tempt her into a slightly more detailed explanation than the one she gave.

I have considered the issue of hybridity and two things struck me. First—this may not be correct—when I was reading a description of the relevant history using a local website, it referred to the 1838 Act as being a public Act as opposed to a hybrid or private Act. I do not know whether that is an issue of historical time or whether that aspect existed in 1838. Secondly, I am not entirely clear about the definition of hybridity. The entitlement applies to anyone born within the hundred of St. Briavels, and I am not clear whether widening that class of people to include women would take away or affect the interests of the men. People are not fighting over a limited pool of resources where giving one group of people more resources would damage the interests of another group. I agree that we do not want the Bill to become hybrid, but perhaps the Solicitor-General could give us a little more detail about hybridity, and explain why she thinks that the new clause would trigger that.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I do not think that the issue is about whether the original Bill that gave rise to the 1838 statute was hybrid. I am told that a hybrid Act is a kind of public Act anyway. Its reference to being a public Act does not take away the fact that it could be hybrid. I cannot say what its status was at the time or what it is now, but it is not necessarily that status that is determinative. Putting this provision in the Bill would affect the interests of a specific group of Forest of Dean miners only, and it would turn the Bill into a hybrid Bill.

Although I can see the point that a man does not have to be knocked off in order to allow a woman in, none the less there could be arguments that the status of being a Forest of Dean miner, which is a specific interest, would be altered if women were allowed in—a terrifying prospect to some, I am sure. Whether or not that be so, I am sure that the hon. Gentleman understands that there would be a change of status by widening the ambit of people who can come in. Although, according to my hon. Friend the Member for Stroud, it is a proud status now, and would be prouder if it had women in it, it is still an alteration. That is the best I can do to help the hon. Gentleman. I am glad that the hon. Gentleman’s lady constituent is working in the field that she wants to work in at the moment, and I am sorry that we cannot stamp out this ancient sexism, but it would put the whole Bill in jeopardy. However, we will do our best to help her in any other way.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 11:15, 7 Gorffennaf 2009

I am grateful for the serious way that the Solicitor-General has approached this. Having investigated the issue of hybridity when I first came across it in the  House, I recognise the complexities that it brings with it. I understand why the Solicitor-General would not want to put the Bill at peril by including the new clause, and I am grateful to her for saying that she will go away and think about whether there is some other way of achieving the goal. No doubt she and I can correspond on this issue and see whether there are any other options. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.