Statute Law (Repeals) Bill 2008

STATUTE LAW (REPEALS) BILL 2008

NOTES ON THE BILL

VOLUME 1

THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION

JANUARY 2008 STATUTE LAW (REPEALS) BILL 2008

NOTES ON THE BILL

CONTENTS

VOLUME 1

Page INTRODUCTION: ii-v

The Clauses: vi

SCHEDULE 1 – REPEALS Volume 1

PART 1: ARMED FORCES 1 - 53 Group 1 – Royal Naval School 1 - 3 Group 2 – Greenwich Hospital 4 - 7 Group 3 – Military Lands 8 - 18 Group 4 – General Repeals 19 - 53

PART 2: COUNTY GAOLS 54 -237 Group 1 – Buckinghamshire 54 - 58 Group 2 – Cambridgeshire 59 - 70 Group 3 – Cheshire 71 - 82 Group 4 – Cumbria 83 - 86 Group 5 – Devon 87 - 104 Group 6 – Essex 105 - 114 Group 7 – Gloucestershire 115 - 131 Group 8 – Greater London (North/ South) 132 - 156 Group 9 – Hampshire 157 - 165 Group 10 – Hertfordshire 166 - 171 Group 11 – Norfolk 172 - 177 Group 12 – Northamptonshire 178 - 183 Group 13 – Northumberland 184 - 194 Group 14 – Pembrokeshire 195 - 198 Group 15 – Somerset 199 - 206 Group 16 – Staffordshire 207 - 215 Group 17– Warwickshire 216 - 224 Group 18 – West Sussex 225 - 229 Group 19 – Wiltshire 230 - 237

PART 3: CRIMINAL LAW 238 - 281

PART 4: EAST INDIA COMPANY 282 – 309

i STATUTE LAW (REPEALS) BILL 2008

NOTES ON THE BILL

VOLUME 2

THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION

JANUARY 2008 STATUTE LAW (REPEALS) BILL 2008

NOTES ON THE BILL

CONTENTS

VOLUME 2 Page

PART 5: LONDON 310 - 375 Group 1 – Poor Relief 310 - 320 Group 2 – Westminster Court House 321 - 324 Group 3 – London Coal Duties 325 - 330 Group 4 – Court of Chancery 331 - 341 Group 5 – Markets 342 - 351 Group 6 – General Repeals 352 - 375

PART 6: POLICE 376 - 419

PART 7: RATING 420 – 484

PART 8: TAX AND DUTIES 485 - 536

PART 9: TOWN AND COUNTRY PLANNING 537 - 558

PART 10: TURNPIKES 559 - 589 Group 1 – Essex 565 - 570 Group 2 – Suffolk 571 - 576 Group 3 – Norfolk 577 – 584 Annex 585 - 589

PART 11: MISCELLANEOUS 590 - 605

SCHEDULE 2: CONSEQUENTIAL AND CONNECTED PROVISIONS1

1 For an explanation of these proposals, reference should be made to the Explanatory Note (Appendix 2) attached to the Law Commissions’ report (Statute Law Repeals: Eighteenth Report, Law Com. No 308, Cm 7303; Scot Law Com. No 210, SG/2008/4).

i PART 1

ARMED FORCES

GROUP 1 - ROYAL NAVAL SCHOOL ______

Reference Extent of repeal or revocation ______

3 & 4 Vict. c.lxxxvi (1840) The whole Act. (Royal Naval School Act)

8 & 9 Vict. c.xxii (1845) The whole Act. (Royal Naval School Act)

Royal Naval School Amendment The whole Act. Act 1851 (14 & 15 Vict. c.xxix)

23 & 24 Vict. c.civ (1860) The whole Act. (Royal Naval School Act)

Royal Naval School (New Cross) The whole Act. Disused Chapel Site Act 1890 (53 & 54 Vict. c.viii) ______

Royal Naval School Acts

1. This note proposes the repeal of five local Acts relating to the Royal Naval School (“the School”), a school established in 1833 in Camberwell, Surrey for the education of the children of officers in the Royal Navy and Marines. The school closed its doors in 1910.

Acts to be repealed 2. The following paragraphs summarise the purposes of each of the five Acts. A copy of any of these Acts can be obtained from the Law Commission.

Royal Naval School Act 1840 3. This Act provided for the establishment and constitution of the School. “The Royal Naval School” was established as a corporate body.

1 Royal Naval School Act 1845 4. This Act carried into effect an arrangement between the School and Lloyd’s Patriotic Fund1 whereby the Fund paid for the right to nominate 12 boys to be educated at the School.

Royal Naval School Amendment Act 1851 5. This Act widened the categories of children eligible for admission to the School, and authorised the establishment of a chapel on land adjoining the School.

Royal Naval School Act 1860 6. This Act carried into effect a further arrangement between the School and a fund known as the Patriotic Fund2 whereby that Fund paid for the right to nominate 7 boys to be educated at the School.

Royal Naval School (New Cross) Disused Chapel Site Act 1890 7. This Act authorised the de-consecration and demolition of the former School chapel. This followed the move of the School from New Cross to Eltham in south-east London.

Subsequent history 8. In 1843, the School moved from its original site in Camberwell to New Cross, near Deptford. It moved to Fairy Hall at Mottingham, Eltham, in 1889, where it remained until its closure at the end of the summer term in 1910.

Extent 9. These Acts are limited in their extent to the Royal Naval School and have no application outside England and Wales.

1 Lloyd’s Patriotic Fund was established as a charity in 1803. This body, which still exists, is not connected with the Patriotic Fund referred to below in the context of the Royal Naval School Act 1860. 2 The Patriotic Fund (established in 1854 as a result of the Crimean War) later became known as the Royal Patriotic Fund Corporation: Patriotic Fund Reorganisation Act 1903, s 1(1). It was dissolved by the Royal Patriotic Fund Corporation (Transfer of Property, Rights and Liabilities) Order 2005 (SI 2005/3308) with effect from 1 January 2006 whereupon its assets, rights and liabilities were transferred to the RPFC, a charity established for the benefit of the persons falling within s 6(1)(a) and (b) of the Armed Forces (Pensions and Compensation) Act 2004.

2 Consultation 10. The Ministry of Defence, Lloyd’s Patriotic Fund, the RPFC (and the Secretary to the Royal Patriotic Fund Corporation), the Department for Education and Skills and Lewisham Council (whose archives include records relating to the Royal Naval School) have been consulted about these repeal proposals.

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3 GROUP 2 - GREENWICH HOSPITAL ______

Reference Extent of repeal or revocation ______

Greenwich Hospital Act 1883 In section 3, the words “and (46 & 47 Vict. c.32) Royal Naval Artillery Volunteer Force”.

Greenwich Hospital Act 1942 Section 1(3). (5 & 6 Geo.6 c.35)

Greenwich Hospital Act 1947 The whole Act. (10 & 11 Geo.6 c.5)

Greenwich Hospital Act 1967 Section 1(2). (c.74) Section 2. ______

Greenwich Hospital Acts

Introduction

1. Greenwich Hospital in south-east London was founded by King William III and Queen Mary in 1694 for the relief and support of seamen and their dependants and for the improvement of navigation. To this day Greenwich Hospital continues to provide education, pensions and sheltered housing for seafarers and their dependants.

2. Under various Greenwich Hospital Acts from 1865 to 1996, the Secretary of State for Defence holds the Hospital’s assets in trust for the Crown, for the Hospital’s exclusive benefit. The Hospital’s affairs are delegated to the Admiralty Board, but the management of its continuing charitable roles is vested in the Director of Greenwich Hospital and a small London-based staff.

3. Some of the statutory provisions relating to Greenwich Hospital are now unnecessary and are proposed for repeal in the following paragraphs.

4 Greenwich Hospital Act 1883 4. The Greenwich Hospital Act 1883 (“the 1883 Act”) contained provisions relating to the application of the income of Greenwich Hospital. Section 3, which empowered funds to be used for the education and maintenance of sons of deceased or incapacitated seamen, included a provision whereby such funds could be used to educate and maintain the sons of men of the Royal Naval Artillery Volunteer Force.3 This provision is now unnecessary because the Royal Naval Artillery Volunteer Force was disbanded on 1 April 1892. As a result the reference to this body in section 3 may now be repealed.

Greenwich Hospital Act 1942 5. Section 1 of the Greenwich Hospital Act 1942 (“the 1942 Act”) relates to powers to grant pensions to persons employed for the purposes of Greenwich Hospital. Subsection (3) was a technical provision which had the effect of repealing text in section 20 of the Greenwich Hospital Act 1865. This repeal took effect when the 1942 Act came into force (at Royal Assent on 22 October 1942) whereupon section 1(3) became spent. Its repeal is therefore proposed on that basis.

Greenwich Hospital Act 1947 6. The purposes of the Greenwich Hospital Act 1947 (“the 1947 Act”) included extending existing powers to grant pensions, allowances and gratuities. The only substantive provisions of the 1947 Act that still remain in force are section 2 and Schedule 1.4

7. Section 2(1) extended the Admiralty’s power under section 2 of the 1883 Act to grant pensions to widows, allowances to children, and gratuities to dependants of certain non-commissioned and petty officers and men dying in service of the Crown to include power to grant such payments in relation to any person who died while serving, or having served, as a non-commissioned officer, petty officer or man of the Royal Navy or Royal Marines or of any

3 The Royal Naval Artillery Volunteer Force was established under the Naval Artillery Volunteer Act 1873. The residue of the 1873 Act was repealed by the Statute Law Revision Act 1953. 4 Section 1 was repealed by Statute Law Revision Act 1953 (s 1, Sch 1); section 3(2) and Schedule 2 were repealed by Statute Law Revision Act 1950 (s 1, Sch 1).

5 naval reserve force. Such payments had to be granted in accordance with regulations made under section 4 of the 1883 Act.

8. Section 2(2) gave effect to section 2(1) by substituting a new section 2 of the 1883 Act, amended in accordance with section 2(1). The new section 2 was set out in Schedule 1 to the 1947 Act.

9. The 1947 Act now serves no purpose except to keep in force the amendment made to the 1883 Act by section 2 (and Schedule 1).5 The effect of section 2 (and Schedule 1) may conveniently be preserved by the entry in the attached Schedule of consequential and connected provisions. This will supersede section 2 (and Schedule 1) and enable the whole of the 1947 Act to be repealed.

Greenwich Hospital Act 1967 10. The Greenwich Hospital Act 1967 was enacted to amend earlier enactments relating to the finances of Greenwich Hospital. Sections 1(2) and 2 are repealing provisions6 and became spent when they came into force at Royal Assent on 27 July 1967.

Extent 11. None of the provisions proposed for repeal by this note has any application outside England and Wales.

Consultation 12. HM Treasury, the Ministry of Defence, Greenwich Hospital and the Seamen’s Hospital Society have been consulted about these repeal proposals.

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5 Section 2(1) has itself been recently amended to include a reference to “surviving civil partners”: Civil Partnership Act 2004, s 257, Sch 26, para 16. A corresponding amendment has also been made to the 1883 Act, s 2(1): Civil Partnership Act 2004, s 257, Sch 26, para 4. 6 Section 1(2) repealed Greenwich Hospital Act 1865, s 40; section 2 repealed Greenwich Hospital Act 1885, s 3.

6 SCHEDULE

CONSEQUENTIAL AND CONNECTED PROVISIONS

Greenwich Hospital Act 1883 (c.32)

. The repeal by this Act of section 2 of, and Schedule 1 to, the Greenwich Hospital Act 1947 (c.5) does not affect the amendment made by those provisions to section 2 of the Greenwich Hospital Act 1883 (power to grant pensions, allowances and gratuities).

7 GROUP 3 - MILITARY LANDS ______

Reference Extent of repeal or revocation ______

Military Lands Provisional Orders The whole Act. Confirmation Act 1893 (56 & 57 Vict. c.xxxvii)

Military Lands Provisional Orders The whole Act. Confirmation Act 1895 (58 & 59 Vict. c.xxv)

Military Lands Provisional Order The whole Act. Confirmation (No.2) Act 1895 Session 2 (59 Vict. Sess.2 c.xv)

Military Lands Provisional Orders The whole Act. Confirmation Act 1898 (61 & 62 Vict. c.lxxxix)

Military Lands Provisional Orders The whole Act. Confirmation (No.2) Act 1898 (61 & 62 Vict. c.ccxiv)

Military Lands Provisional Order The whole Act. Confirmation Act 1899 (62 & 63 Vict. c.cxxxiii)

Military Lands Provisional Order The whole Act. Confirmation Act 1900 (63 & 64 Vict. c.i)

Military Lands Provisional Orders The whole Act. Confirmation Act 1901 (1 Edw.7 c.xxxii)

Military Lands Provisional Orders The whole Act. Confirmation (No.2) Act 1901 (1 Edw.7 c.clvii)

Naval Works Provisional Order The whole Act Confirmation Act 1901 (1 Edw.7 c.clx)

Military Lands Provisional Orders The whole Act. Confirmation (No.1) Act 1902 (2 Edw.7 c.i)

8 Military Lands Provisional Order The whole Act. Confirmation (No.2) Act 1902 (2 Edw.7 c.lxxiii)

Naval Works Provisional Order The whole Act. Confirmation Act 1903 (3 Edw.7 c.lxvii)

Military Lands Provisional Orders The whole Act. Confirmation Act 1903 (3 Edw.7 c.lxxxiv)

Military Lands Provisional Order (1910) The whole Act. Confirmation Act 1911 (1 & 2 Geo.5 c.iv)

Military Lands Provisional Order The whole Act. Confirmation Act 1912 (2 & 3 Geo.5 c.cxvii) ______

Military Lands Provisional Orders Confirmation Acts

1. This note proposes the repeal of a number of Acts that were passed in the late 19th and early 20th centuries to facilitate the purchase of land for the military purposes of Her Majesty’s military forces or for the purposes of Her Majesty’s Navy.

2. Each Act was necessary to confirm one or more provisional orders made by the Secretary of State pursuant to section 2 of the Military Lands Act 1892 (“the 1892 Act”). Section 1 of the 1892 Act provided powers for the Secretary of State, a volunteer corps or the council of a county or borough to purchase land in the United Kingdom for military purposes. Section 2 of the 1892 Act prescribed a procedure whereby the compulsory purchase powers under the Land Clauses Consolidation Act 1845 could be invoked to acquire the land.

3. Before these powers under the 1892 Act could take effect, steps had to be taken to publicise the proposed purchase. Notices had to be served on the owners and occupiers of the land affected and a public local inquiry had to be

9 held to hear the views of such owners and occupiers.7 If, after the local inquiry had been held, the Secretary of State was satisfied that the land ought to be taken, he could make a provisional order to that effect and submit a Bill to Parliament for the confirmation of that order. Until confirmed by Parliament, the order had no effect.8 Unless the confirming Act provided otherwise, the land had to be purchased within 3 years of the passing of the Act.9 None of the confirming Acts proposed for repeal in this note provided otherwise.

4. Because none of the Acts contained any provisions of a continuing nature, each Act became spent once the relevant land purchase had been completed or, if sooner, once 3 years had elapsed from the passing of the Act. Each Act is accordingly now proposed for repeal on the basis that it is spent.

5. The Acts proposed for repeal are broadly similar in format. The Schedule to each contains the relevant provisional orders and details of the land to be purchased. One of the Acts is attached to this note as an example. Each Act is described in the following paragraphs. The names of the provisional order or orders that each confirms appear in italics. Several of the Acts relate to land that was formerly part of the United Kingdom but is now within the Republic of Ireland.10

Military Lands Provisional Orders Confirmation Act 1893 6. The provisional orders confirmed by this Act related to the purchase by the Secretary of State of land-

(a) for the improvement of Buttevant Barracks in the county of Cork (Buttevant Barracks Enlargement Order 1893)

7 The 1892 Act, s 2(5) to (7). 8 The 1892 Act, s 2(9). 9 Lands Clauses Consolidation Act 1845, s 123, by virtue of the Military Lands Act 1900, s 4. 10 Statute Law (Repeals) Acts do not repeal or amend any enactment so far as the enactment forms part of the law of a country outside the United Kingdom and the Isle of Man. Accordingly the repeal of an Act that relates to land formerly within the United Kingdom but now within the Republic of Ireland will have no effect on the law of the Republic of Ireland. Such a repeal merely causes the relevant Act to cease to exist within the United Kingdom.

10 (b) for the improvement of the Marlborough Barracks at Grangegorman in the county of Dublin (Marlborough Barracks (Dublin) Order 1893).

Military Lands Provisional Orders Confirmation Act 1895 7. The provisional orders confirmed by this Act related to the purchase by the Secretary of State of land-

(a) for the enlargement of the Portobello Barracks in the county of Dublin (2 orders) (Portobello Barracks Enlargement Orders Nos.1 and 2 1895)

(b) for the enlargement of the Ebrington Barracks in the City of Londonderry (Londonderry (Ebrington) Barracks Enlargement Order 1895).

Military Lands Provisional Order Confirmation (No.2) Act 1895 Session 2 8. The provisional order confirmed by this Act related to the purchase by the Secretary of State of land for the enlargement of Richmond Barracks in the county of Dublin (Richmond Barracks Enlargement Order 1895).

Military Lands Provisional Orders Confirmation Act 1898 9. The provisional orders confirmed by this Act related to the purchase by the Secretary of State of-

(a) firing and other rights of user, over part of the lands of the Curragh of Kildare in the townsland of Curragh parish of Ballysax and county of Kildare (Curragh (Rights of Firing and User) Order 1898)

(b) land and rights of way, for the purpose of the enlargement of the Ebrington Barracks in the City of Londonderry (Londonderry (Ebrington) Barracks Enlargement Order 1898).

11 Military Lands Provisional Orders Confirmation (No.2) Act 1898 10. The provisional orders confirmed by this Act related to the purchase by the Secretary of State of land-

(a) for the purpose of the building and enlarging of barracks at or near Woking, Surrey (Woking Barracks Order 1898)

(b) on or near Salisbury Plain, Wiltshire (Salisbury Plain Order 1898)

Military Lands Provisional Order Confirmation Act 1899 11. The provisional order confirmed by this Act related to the purchase by the Council of the Borough of Great Yarmouth of land in the parish of Caister next Yarmouth and in the county of Norfolk (Great Yarmouth Military Lands Order 1899).

Military Lands Provisional Order Confirmation Act 1900 12. The provisional order confirmed by this Act related to the purchase by the Secretary of State of land in the parishes of Whittington, Tamhorn, Hopwas, Hayes and Wigginton near Lichfield in the county of Staffordshire (Lichfield Military Lands Order 1900).

Military Lands Provisional Orders Confirmation Act 1901 13. The provisional orders confirmed by this Act related to the purchase by the Secretary of State of land-

(a) in the township of Ballykinler Upper in the county of Down (Ballykinler Military Lands Order 1901)

(b) known as Cork Camp Field in the parish of St Anne Shandon in the County Borough of Cork (Cork Camp Field Military Lands Order 1901)

12 Military Lands Provisional Orders Confirmation (No.2) Act 1901 14. The provisional orders confirmed by this Act related to the purchase by the Secretary of State of land-

(a) in the parish of Shipton Bellinger, Hampshire (Shipton Bellinger Military Lands Order 1901)

(b) in the parishes of Lydford and Petertavy, Devon (Willsworthy Military Lands Order 1901)

Naval Works Provisional Order Confirmation Act 1901 15. The provisional order confirmed by this Act was made by the Admiralty pursuant to the powers given to them by section 2 of the 1892 Act as applied by section 2 of the Naval Works Act 1895. The order related to the purchase by the Admiralty of land known as East Weir at or near the Isle of Portland, Dorset (Portland Naval Works Order 1901).

Military Lands Provisional Orders Confirmation (No.1) Act 1902 16. The provisional orders confirmed by this Act related to the purchase by the Secretary of State of land-

(a) in the Barony of Talbotstown Lower in the county of Wicklow (Kilbride Military Lands Order 1902)

(b) in the Barony of Dunkellin in the county of Galway (Oranmore Military Lands Order 1902).

Military Lands Provisional Order Confirmation (No.2) Act 1902 17. The provisional order confirmed by this Act related to the purchase by the Ayrshire Imperial Yeomanry, the First Ayrshire and Galloway Royal Garrison Artillery Volunteers and the Second Volunteer Battalion Royal Scots

13 Fusiliers of land in Burgh Parish and County of Ayr (Kingcase Military Lands Order 1902).

Naval Works Provisional Order Confirmation Act 1903 18. The provisional order confirmed by this Act was made by the Admiralty pursuant to the powers given to them by section 2 of the 1892 Act as applied by section 2 of the Naval Works Act 1895. The order related to the purchase by the Admiralty of land in or near the Borough of Dartmouth (Britannia Royal Naval College Order 1903).

Military Lands Provisional Orders Confirmation Act 1903 19. The provisional orders confirmed by this Act related to the purchase by the Secretary of State of land-

(a) at Bordon in the parish of Headley, Southampton (Bordon Military Lands Order 1903)

(b) in the Royal Borough of Windsor (Windsor Military Lands Order 1903).

Military Lands Provisional Order (1910) Confirmation Act 1911 20. The provisional order confirmed by this Act related to the purchase by the Territorial Force Association of the County of Lancaster11 of land in the townships of Ramsbottom, Tottington and Haslingden in the county of Lancaster (Holcombe Rifle Ranges Order 1910).

Military Lands Provisional Order Confirmation Act 1912 21. The provisional order confirmed by this Act related to the purchase of the Territorial Force Association of the West Riding of the County of York of

11 Regulations made under the Territorial and Reserve Forces Act 1907, s 4 applied section 1 of the 1892 Act so as to authorise the purchase of land for military purposes by a county association established by a scheme made under the 1907 Act, s 1. The Territorial Force Association of the County of Lancaster was one such county association. Territorial Force Associations became known as Territorial Army Associations (Auxiliary Forces Act 1953). Today they are known as Reserve Associations (Reserve Forces Act 1996).

14 land in or adjoining the parishes of Marsden and Meltham in the West Riding of the County of York (Deer Hill Rifle Ranges Order 1912).

Extent 22. Each of the Acts proposed for repeal in this note extended to the geographical locality identified in the relevant Act. Where this locality now falls within the Republic of Ireland the repeal will merely cause the relevant Act to cease to exist within the United Kingdom.

Consultation 23. The Ministry of Defence, Great Yarmouth Borough Council, the Council of Reserve Forces and Cadets Associations and the relevant authorities in Wales, Scotland and Northern Ireland and in the Republic of Ireland (the Attorney General’s Office) have been consulted about these repeal proposals.

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15 16 17 Return

18 GROUP 4 - GENERAL REPEALS ______

Reference Extent of repeal or revocation ______

Chelsea and Kilmainham Hospitals Section 3. Act 1826 (7 Geo.4 c.16) Sections 10 and 11. Section 13. Section 23. Section 27. Section 31. Section 34. In section 46, the words “, in case the same shall amount to or exceed the sum of two hundred pounds,”. Sections 47 and 48.

Army (Artillery, etc.) Pensions Act 1833 The whole Act. (3 & 4 Will.4 c.29) ______

Chelsea and Kilmainham Hospitals Act 1826

Introduction

1. According to its long title, the purpose of the Chelsea and Kilmainham Hospitals Act 1826 (“the 1826 Act”) was to consolidate and amend several Acts relating to the Royal Hospitals for Soldiers at Chelsea and Kilmainham. In particular the 1826 Act consolidated and amended the legislation relating to army pensions which were at that time administered by the Commissioners of the Royal Hospital, Chelsea (“the Royal Hospital”) and the Governors of Kilmainham Hospital, Dublin. It also consolidated earlier legislation enabling the Royal Hospital to acquire lands.

2. Kilmainham Hospital ceased to be the responsibility of the British authorities following the establishment of the Irish Free State in 1922. The hospital itself closed soon afterwards. The provisions of the 1826 Act relating

19 to Kilmainham Hospital have accordingly already been repealed12. Accordingly the 1826 Act now applies only to the Royal Hospital.

3. The Royal Hospital was founded by Charles II in 1682 as a place of refuge and shelter “for the reliefe of such land souldiers as are or shall be old, lame or infirme in ye service of the Crown”.13 The design of the building was entrusted to Sir Christopher Wren. The first In-Pensioner took up residence in 1692. Responsibility for the management of the Royal Hospital is vested in a Board of Commissioners who are appointed by the Sovereign from members of the Government, serving or retired military officers, Civil Servants or other distinguished individuals from the public and private sectors. The Paymaster General is Chairman of the Board of Commissioners.

Proposed repeals 4. Several provisions in the 1826 Act have become unnecessary and are identified for repeal in the following paragraphs.

Section 3 5. Section 3, as amended, provides as follows- Pensions for disabled soldiers payable at Chelsea to be managed by the Commissioners of Chelsea Hospital “The payment of all pensions, allowances, and relief, granted or to be granted to disabled, invalid, and discharged soldiers payable at Chelsea shall be under the management, control, authority, and direction of the Lords and others, Commissioners of the Royal Hospital for soldiers at Chelsea in the county of Middlesex.”

6. Section 3 reflects the legal position in 1826 when the Commissioners of the Royal Hospital and the Governors of Kilmainham Hospital were responsible for the administration and payment of service and disablement pensions.

12 Statute Law (Repeals) Act 1976, s 1(1), Sch 1, Pt 4. 13 Royal Warrant dated 7 December 1681 appointing the Paymaster General as Treasurer of the Royal Hospital.

20 7. Today, however, the Commissioners of the Royal Hospital have no functions concerning the award or payment of pensions to soldiers. Indeed, as long ago as 1846, an Act was passed to repeal the 1826 Act so far as it related to the payment and management of out-pensioners (i.e. non-resident pensioners).14 Today the responsibility for paying pensions to retired soldiers, whether or not resident at the Royal Hospital, rests with the Secretary of State and not with the Commissioners of the Royal Hospital. Accordingly section 3 of the 1826 Act is unnecessary and may be repealed.

Section 10 8. Section 10, as amended, provides as follows- Soldiers discharged etc to be entitled to pensions under the regulations and orders in force at the time of their enlistment “Every soldier who shall from and after the passing of this Act become entitled to his discharge by reason of the expiration of any period of service fixed in any orders and regulations made by his Majesty in that behalf, or shall have been discharged by reason of being an invalid, or disabled, or having been wounded, shall thereupon be entitled (except in the cases hereinafter mentioned of admission into either of the said hospitals at Chelsea, or expulsion therefrom) to receive such pension, allowance or relief, as shall have been fixed in any orders or regulations made by his Majesty in relation to such cases respectively and in force at the time of his enlistment, and for the payment whereof money shall have been voted by Parliament; and every such solider shall receive the same under the provisions of this Act, or any rules or regulations made in pursuance thereof by the said Commissioners of the said Hospital at Chelsea as aforesaid.”

9. Section 10 has long since been superseded by section 2 of the Pensions and Yeomanry Pay Act 1884 (“the 1884 Act”) which provides for the payment of soldiers’ pensions to be made by Order in Council. Such Orders are made by Royal Warrants and notified in Army Orders. Accordingly section 10 has ceased to serve any practical utility and may be repealed on that basis.

14 9 & 10 Vict. c.10 (s 1) which transferred responsibility for paying out-pensioners to the Secretary at War. This function has now been transferred to the Secretary of State for Defence: see Defence (Transfer of Functions) Act 1964, s 1(2).

21 Section 11 10. Section 11, as amended, provides as follows- Regulations as to discharge, pensions, etc and estimates for pensions etc to be annually laid before Parliament “Provided always that all orders and regulations from time to time made by his Majesty, in relation to the discharge of soldiers after the expiration of any periods of service, and also in relation to any pension, allowance or relief, or to any discharged, or invalid, disabled or wounded soldiers, shall annually be laid before Parliament; and that that estimates of the amount of all such pensions, allowances and relief, and of all contingent expenses and charges relating to the payment, control and management thereof, shall also be annually laid before Parliament.”

11. So far as section 11 relates to the Parliamentary scrutiny of orders made by his Majesty, it has been superseded by section 2(2) of the 1884 Act which provides for any such order relating to soldiers’ pensions to be laid before both Houses of Parliament. So far as section 11 provides for the Parliamentary scrutiny of estimates of the cost of military pensions, this is today met by the modern constitutional requirement for Departments to submit supply estimates to Parliament on an annual basis15. Accordingly section 11 is now unnecessary and may be repealed on that basis.

Section 13 12. Section 13, as amended, provides as follows-

Commissioners of Chelsea Hospital empowered, in case of frauds or misconduct, to take away or refuse pensions “It shall and may be lawful for the said commissioners of the said hospital at Chelsea, and they are hereby authorized and empowered, upon complaint and proof to their satisfaction being made to them of any fraud, with respect to the claiming, obtaining, or receiving of any pension or other money from the said hospital at Chelsea or of other gross misconduct attempted or practised by any person being a pensioner, entitled or claiming to be a pensioner of the said royal hospital, to suspend or take away the pension, or altogether reject, object to, or refuse the title or claim to pension of the person so offending, and to issue to the paymaster of out-pensions of the said hospital at Chelsea a notice in writing, under the hand of the secretary, of any pension being so suspended or taken away; and

15 Under the supply procedure whereby Parliament annually votes to grant money to the Crown, the Government lays before the House of Commons each March its main supply estimates containing a request for funds for the forthcoming financial year.

22 upon the said notice being issued to the said paymaster of pensions he shall suspend the payment of the pension therein mentioned, according to the tenor of the said notice; anything in any other Act or herein contained to the contrary thereof in anywise notwithstanding.”

13. As with section 3, section 13 reflects the position in 1826 when the Commissioners of the Royal Hospital had responsibility for the payment of service pensions. Since the Commissioners no longer have this responsibility, the powers given them by section 13 to take away or refuse pensions in cases of fraud or misconduct are now unnecessary.

Section 23 14. Section 23, as amended, provides as follows- Pensioners to give notice of change of residence “Every pensioner resident in Great Britain or Ireland, who shall be entitled to receive payment of his pension by remittance or order, shall, as often as he shall change his place of abode, give notice thereof to the said commissioners of the said hospital at Chelsea; and in case, for want of any such notice, any loss shall happen by reason of any remittance or order being sent for any pension to the place from which such pensioner shall have removed without giving such notice and to which place his pension shall have been remitted pursuant to the notice, inserted in the preceding affidavit, such loss shall fall upon and be borne and sustained by such pensioner so making default in this behalf.”

15. This provision, whereby a pensioner must notify any change of address and bear any loss incurred if his pension is sent to the wrong address, reflects the position in 1826 when the Commissioners of the Royal Hospital were responsible for issuing service pensions. Since the Commissioners no longer have this responsibility, the provisions in section 23 have become unnecessary.

Section 27 16. Section 27, as amended, provides as follows- Secretary and senior clerks of Chelsea Hospital may administer certain oaths to out-pensioners and others “It shall and may be lawful to and for the secretary of the said hospital at Chelsea, and the chief and first four senior clerks respectively on the establishment of the office of the secretary of the said hospital for the time being, and they are hereby authorized and required, as often as

23 occasion shall be, to administer to all and every person entitled, or claiming to be entitled, to any out-pension or allowance of money from the said hospital at Chelsea, or to any allowance on account of service in his Majesty’s army, all and every oath and oaths required or directed to be taken by any law or laws which now is or are or shall be in force at the time such oath is required or directed as aforesaid, and also to administer any other oath or oaths to any person or persons, or to any other person or persons, touching any such matters as shall be necessary for the purpose of preventing frauds in the receiving of pensions, or proving the identity of such person or persons, or for the purpose of ascertaining or proving his or their service, or particulars of service, in his Majesty’s army, or of any other service for which any out-pension or allowance shall be claimed or granted, or of ascertaining or proving the fact of any disability or other circumstance in respect of which such pension shall be claimed or granted.”

17. Section 27, which provides for the Secretary and senior clerks of the Royal Hospital to administer oaths to out-pensioners and others is unnecessary and serves no useful purpose. The original need for it stems from the absurd number of oaths which the contemporary laws required pensioners and others to take. It was said in 1835 that in relation to the Army Pay Office alone there were 86,000 persons who were obliged to take oaths five times each year; and that if a man had lost an arm he must swear four times a year he had lost it16. Nowadays pensions are awarded by reference to central records. Their continued payment is dependent upon administrative controls, such as a requirement that the pensioner regularly submits a certificate of entitlement showing that he is still alive. These controls do not depend on section 27. If an oath or statutory declaration is needed nowadays, these are usually administered by a local solicitor exercising the powers of a commissioner for oaths.17

Section 31 18. Section 31, as amended, provides as follows- Statements of the number of out-pensioners to be made up “The said commissioners of the said hospital at Chelsea are hereby authorized and directed to make up, or cause to be made up, at the usual times at which the same have been heretofore made up, or at such other times as the said commissioners, by and with the

16 Hansard (HL), vol 26, cols 415-6 (Duke of Richmond, 27 February 1835). 17 Every solicitor who holds a current practising certificate has the powers conferred on a commissioner for oaths by the Commissioners for Oaths Acts 1889 and 1891: Solicitors Act 1974, s 81(1).

24 concurrence of the Treasury shall from time to time order or direct, an exact statement or list of the number of out-pensioners borne on the out-pension list, or who have either personally appeared or have been certified by proper affidavits to be living during the whole or part of the quarter then immediately preceding.”

19. This provision, which required the Commissioners to make up exact statements of out-pensioners shown on the out-pensions list, was directed at eliminating the scandalous and corrupt practices of the time concerning the payment of pensions. Given that the Commissioners ceased to be responsible for the pensions of out-pensioners in 184618, section 31 has been unnecessary since then.

Section 34 20. Section 34, as amended, provides as follows- Clothes, linen, and stores of the hospital to be marked⎯Marks to be defaced on sale⎯Persons having or illegally disposing of, and pawnbrokers taking in pawn clothes, etc, so marked “The said commissioners of the said hospital at Chelsea shall and may and they are hereby authorized to cause the clothes, linen, stores, and other articles belonging to the said hospital, capable of being marked, to be from time to time marked, stamped, or branded, with the words “Chelsea Hospital”; and from time to time, in case the said commissioners should sell or dispose of any of the said clothes, linen, stores or other articles, or should allow the in-pensioners, or any of them, to sell or dispose of any of the said clothes, linen, stores, or other articles, then the said commissioners shall and may and they are hereby authorized to obliterate or deface the said marks, stamps, and brands respectively, by marking, stamping, or branding upon the said clothes, linen, stores, or other articles so sold or disposed of by the said commissioners, or so allowed by them to be sold or disposed of by the said in-pensioners, or any of them, the said words “Chelsea Hospital” reversed over and upon the said words before marked, stamped, or branded on the said clothes, linen, stores, or other articles respectively; such mark, stamp, or brand, not obliterated or defaced as aforesaid, to be considered and taken as sufficient evidence, without further proof, that the clothes, linen, stores, goods, and articles so marked, stamped, or branded, and not obliterated or defaced as aforesaid, are the property of the said commissioners.”

21. This provision authorises the Commissioners to mark property of the Royal Hospital such as clothes and linen with the words “Chelsea Hospital”;

18 9 & 10 Vict. c.10 (s 1).

25 and to remove such marking in the event of the property being sold or otherwise disposed of. Clearly such marking of hospital property is a matter which can be dealt with administratively by Hospital staff without the need for specific statutory authority, in much the same way as other organisations such as hospitals and hotels attach logos and other markings to their property to identify it. As originally enacted, section 34 contained elaborate provisions imposing penalties on anyone who misappropriated property marked as belonging to the Royal Hospital. However, these provisions have already been repealed.19 The remaining text of section 34 today serves no useful modern purpose.

Sections 47 and 48 22. Sections 47 and 48, as amended, provide as follows- 47 Application when less than £200 and exceeding £20 Provided always that if any money so to be paid for any lands, tenements, and hereditaments to be purchased for the purposes aforesaid, and belonging to any body corporate, collegiate, or ecclesiastical, tenant for life or in tail, or for years, trustees, feme covert, infant, person of unsound mind, or any person or persons under disability or incapacity as aforesaid, shall be less than the sum of two hundred pounds, and shall exceed the sum of twenty pounds, then and in all such cases the same shall, at the option of the person or persons for the time being entitled to the rents and profits of the hereditaments so purchased, taken or used, or of his, her, or their guardian or guardians, committee or committees, in cases of infancy, idiotcy, or lunacy, to be signified in writing under their respective hands, to be paid into the Supreme Court, in order to be applied in manner herein- before directed; or otherwise the same shall be paid, at the like option, to two trustees, to be named by the person or persons making such option, and approved by the said lords commissioners of the said hospital, such nomination and approbation to be signified by writing under the hands of the nominating and appointing parties, in order that such principal money, and the dividends to arise therefrom, or the interest thereof, may be applied in the manner herein-before directed, so far as the case shall be applicable, without obtaining or being required to obtain the direction or approbation of the said High Court of Chancery.

48 Application when not exceeding £20 Provided always that when such money so contracted and agreed to be paid as last before-mentioned shall not exceed the sum of twenty

19 Theft Act 1968, s 33(3), Sch 3, Pt 1.

26 pounds, then and in all such cases the same shall belong absolutely and be paid to the person or persons who would for the time being have been entitled to the rents and profits of the lands, tenements, or hereditaments so purchased or agreed for, or hereafter to be purchased, for the purposes aforesaid, or in case of infancy, idiotcy, or lunacy, then to his, her, or their guardian or guardians, committee or committees, to and for the use and benefit of such person or persons so entitled respectively.

23. Sections 47 and 48 are ancillary to sections 44 to 46 which empower the Commissioners to buy land for the purposes of the Royal Hospital (section 44) and empower corporations and others to sell land to the Commissioners for these purposes (section 45).

24. Section 46 provides that where- (a) the Commissioners buy land from corporations or from specified categories of person who either have limited ownership rights or lack full legal capacity; and (b) the purchase money amounts to or exceeds £200, the money is to be paid into the Supreme Court and applied in accordance with the directions of the Supreme Court.

25. Sections 47 and 48 provide for the procedure to be followed where- (a) as in section 46, the Commissioners buy from a corporation or from a person who has limited ownership rights or who lacks full legal capacity; and (b) the purchase money is- (i) less than £200 but exceeds £20 (section 47); or (ii) £20 or less (section 48).

The procedure under section 47 provides for the purchase money to be paid either into court or else to two approved trustees. The procedure under section 48 provides for the purchase money to be paid to the person entitled to the income of the land purchased. Given the fall in the value of money since 1826, any land purchased by the Commissioners that involves the payment of money today will always involve a sum greater than £200. The

27 procedure laid down by section 46 will suffice for all land purchases in future. It follows that sections 47 and 48 are now unnecessary and may be repealed on that basis. A consequential repeal will be the words in section 46 limiting the application of that section to purchases of £200 or more.

Army (Artillery, etc) Pensions Act 1833 26. The purposes of the Army (Artillery, etc) Pensions Act 1833 (“the 1833 Act”) included transferring responsibility for the pensions of artillerymen and others to the Commissioners of the Royal Hospital. The 1833 Act has long been obsolete.

Section 1 27. Section 1, as amended, provides as follows- Pensions to artillerymen, etc heretofore granted by board of ordnance shall be granted by commissioners of Chelsea hospital “The whole of the said pensions, allowances, and relief payable to soldiers and others discharged from the royal artillery, engineers, and other military corps which have been heretofore granted and paid by the said master general and board of ordnance, shall be granted and paid by and be under the power, management, control, direction and authority of the said commissioners of Chelsea hospital.”

28. Section 1 transferred the responsibility for granting and paying the pensions of retired artillerymen and others from the master general and board of ordnance to the Commissioners. The Commissioners no longer have this function, the granting and payment of pensions now being the function of the Secretary of State. Section 1 is therefore obsolete.

Section 2 29. Section 2, as amended, provides as follows- Regulations as to army pensions shall apply to pensions under this Act “All the clauses, rules, regulations, powers, pains, forfeitures, matters, and things contained in any Act or Acts or Parliament now in force relating to pensions granted or to be granted to disabled, invalid, or discharged soldiers, shall be applicable and applied and put in force for the purposes of this Act, with respect to all subsisting pensions already granted by the board of ordnance on account of the services herein- before mentioned, and to all pensions, relief, and allowances hereafter

28 to be granted and payable to soldiers and others on account of such services.”

30. Section 2 is equally obsolete. It applied the then existing rules and regulations about army pensions generally to the pensions of the retired artillerymen and others referred to in section 1. Section 2 has been superseded by the 1884 Act and by the orders made under section 2 of that Act.

Section 3 31. Section 3 has already been repealed.20

Section 4 32. Section 4, as amended, provides as follows- No fee to be taken from Chelsea out-pensioners for administering oath on receipt of pension, etc “No fee or payment whatever shall be demanded or taken from any out-pensioner of Chelsea hospital, or charged against him, for administering or attesting any oath necessary or required to be taken for the receipt of any pension or allowance of money payable at or from Chelsea hospital, or for the making or executing or attesting any assignment of out-pension, or orders of justices relating to any out- pension, or to any payment on account thereof.”

33. Section 4 prohibits the taking of oath fees from out-pensioners claiming pension money at the Royal Hospital. This provision is obsolete since the hospital has no remaining jurisdiction over the pensions of out-pensioners.

34. There being no other provisions in the 1833 Act, the whole of that Act may now be repealed as obsolete.

Extent 35. The 1826 and 1833 Acts as enacted extended throughout the United Kingdom. However, none of the provisions proposed for repeal have any special application outside England and Wales.

20 Statute Law Revision Act 1874, s 1, Sch.

29 Consultation 36. HM Treasury, HM Paymaster General, the Ministry of Defence, the Department for Work and Pensions and the Royal Hospital have been consulted about these repeal proposals.

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30 Reference Extent of repeal or revocation ______

Drouly Fund Act 1838 The whole Act. (1 & 2 Vict. c.89) ______

Drouly Fund Act 1838

1. According to its long title, the Drouly Fund Act 1838 (“the 1838 Act”) was “An Act respecting the transfer of certain Funds to the Secretary at War and the Paymaster General”. The 1838 Act results from the generosity of Colonel John Drouly, who died in September 1818, and who left funds in his will to provide for the welfare of officers’ widows and for pensioners of the Royal Hospital, Chelsea (“the Royal Hospital”). The provisions in the 1838 Act for handling these funds are no longer necessary. As a result the 1838 Act is itself no longer necessary.

2. Section 1 relates to the legacy of £10,000 3% Reduced Bank Annuities left by Colonel Drouly for the payment of annuities to officers’ widows. Under the terms of the will, this legacy was bequeathed to the individuals currently holding the offices of Secretary at War and Paymaster of the Forces21. Because of the administrative work involved in transferring these securities from one name to another every time there was a change in either of these office-holders, and in the interests of keeping the investments separate from other investments in their names, section 1 provided that an account should be opened at the Bank of England in the names of the Secretary at War and the Paymaster General to hold these funds subject to the trusts of the will. Section 1 also provided for automatic vesting of the securities each time there was a change of office holder.

3. Section 1 is now unnecessary because the fund to which it relates no longer exists as a separate entity. Until 1995 the fund was administered by the Ministry of Defence (and its predecessors) but it was then transferred to

21 These individuals were Henry John Palmerston and Charles Long. The office of Secretary at War no longer exists. These functions are today vested in the Secretary of State for Defence. The Paymaster of the Forces is today styled ‘the Paymaster General’.

31 the Officers’ Association22 who added the fund to their permanent endowment fund.

4. Section 2 relates to the gift of half his residuary estate left by Colonel Drouly to the Royal Hospital for the benefit of the pensioners there. With a view to vesting the balance of this gift in the Paymaster General subject to the directions of the Commissioners of the Royal Hospital, section 2 provided that an account should be opened at the Bank of England in the name of the Paymaster General as trustee in regard to the Drouly bequest to the Hospital. Section 2 also provided for automatic vesting of the account each time there was a change of Paymaster General.

5. Section 2 is now unnecessary because the fund representing the gift to the Royal Hospital no longer exists. It was maintained as a separate fund until 1997 when it was merged with the Royal Hospital’s Army Prize Money and Legacy Fund.

6. Section 3 is ancillary to section 2 and provides for the transfer to the Paymaster General of the fund, held by the Royal Hospital pursuant to the gift of the half of the residuary estate referred to above. Once the transfer had been made, the Paymaster General was to hold it subject to the direction of the Commissioners of the Royal Hospital. Section 3 ceased to serve any purpose once the fund was merged with the Royal Hospital Army Prize Money and Legacy Fund in 1997.

7. Section 4 is ancillary to sections 1 and 2 and empowered the Secretary at War and the Paymaster General to grant powers of attorney to facilitate dealings with the funds referred to in those sections. Section 4 ceased to serve any purpose once the funds ceased to be vested in the Secretary at War (or the Secretary of State) and/or the Paymaster General.

22 The Officers’ Association is a charity dedicated to assisting officers who have retired or are about to retire from Her Majesty’s Armed Forces. The Association was founded in 1919 and was granted a Royal Charter in 1921.

32 8. The Schedule to the 1838 Act contains extracts from the will of Colonel Drouly as they related to the gift referred to in section 1. Clearly this provision is now as unnecessary as section 1 itself.

9. There being no other provisions, the whole of the 1838 Act is now unnecessary and may be repealed in its entirety.

Extent 10. The 1838 Act has no application outside England and Wales.

Consultation 11. The Ministry of Defence, HM Treasury, the Paymaster General, the Royal Hospital and the Officers’ Association have been consulted about this repeal proposal.

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33 Reference Extent of repeal or revocation ______

Army Act 1881 The whole Act. (44 & 45 Vict. c.58)

______

Army Act 1881

1. According to its long title, the purpose of the Army Act 188123 (“the 1881 Act”) was to consolidate the Army Discipline and Regulation Act 1879 and the subsequent Acts amending the same.

2. Section 1 of the Revision of the Army and Air Force Acts (Transitional Provisions) Act 1955 provided that the 1881 Act (and the Air Force Act of 191724) “shall continue in force until the end of the year nineteen hundred and fifty-six but no longer”. Thereafter the 1881 Act was superseded by the Army Act 1955 with effect from 1 January 1957.25

3. Accordingly the 1881 Act ceased to have effect at the end of 1956. However, it has never been formally repealed with the result that it remains on the statute book to the present day. It is now proposed that this situation be remedied by a formal repeal of the 1881 Act.

Extent 4. The 1881 Act extended throughout the United Kingdom.

Consultation 5. The Ministry of Defence and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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23 By virtue of the Army (Annual) Act 1890, s 4, the Army Act 1881 became known simply as ‘the Army Act’. 24 The Air Force Act took effect pursuant to the Air Force (Constitution) Act 1917, s 12(1). 25 Army Act 1955 (Commencement) Order 1955, SI 1955/1805.

35 Reference Extent of repeal or revocation ______

Barracks Act 1890 The whole Act. (53 & 54 Vict. c.25)

Finance Act 1944 Section 46. (7 & 8 Geo.6 c.23)

______

Barracks Act 1890

1. According to its long title, the purpose of the Barracks Act 1890 (“the 1890 Act”) was to make provision for building and enlarging barracks and camps in the United Kingdom (and in certain colonies) and to amend the law relating to the acquisition of land for military purposes.

2. Nearly the whole of the 1890 Act has already been repealed. These repeals are as follows- ♦ preamble: repealed by Statute Law Revision Act 1908, s 1, Sch ♦ sections 1, 8, 12: repealed by Defence (Transfer of Functions) (No.1) Order 1964 (SI 1964/488), art 2(2), Sch 1, Pt 2 ♦ sections 2, 3: repealed by Military Lands Act 1892, s 28, Sch ♦ section 4: repealed by Ranges Act 1891, s 11(2) ♦ sections 5-7, 9, Sch: repealed by Statute Law Revision Act 1950 ♦ section 10: repealed by Statute Law (Repeals) Act 1973, s 1, Sch 1, Pt 13.

3. The only substantive provision remaining is section 11 which, as amended, now provides- “All contracts, conveyances, and other documents made with a view to carrying into effect the purposes of this Act shall be exempted from stamp duty”.

4. Section 11 is now unnecessary. This is partly because the provisions in the 1890 Act for acquiring land (i.e. sections 1 and 2) have already been repealed along with every other substantive provision of that Act. More significantly, the purpose of section 11 was to exempt from stamp duty any

36 acquisition of land, for the purposes of the 1890 Act, by the Secretary of State whereas the modern law exempts any Minister of the Crown from a charge to stamp duty (now stamp duty land tax) in respect of a land transaction where the Minister is a purchaser.26 Section 11 has accordingly been superseded.27 It follows that the 1890 Act may now be repealed as a whole. A consequential repeal will be section 46 of the Finance Act 1944 (which applied section 11 to the Royal Navy).

Extent 5. The 1890 Act extended throughout the United Kingdom.

Consultation 6. The Ministry of Defence, HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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26 Finance Act 2003, s 107. Stamp duty land tax has replaced the stamp duty charged on land and buildings in the UK: the 2003 Act, Part 4. 27 Sections 74 and 74A of the Finance Act 1960 provide analogous exemption from stamp duty/stamp duty land tax where the purchasers for the purpose of building or enlarging barracks or camps are visiting forces.

37 Reference Extent of repeal or revocation ______

Seamen’s and Soldiers’ False The whole Act. Characters Act 1906 (6 Edw.7 c.5)

Criminal Justice Act 2003 (c.44) In Schedule 25, paragraph 14. In Schedule 32, paragraph 152. ______

Seamen’s and Soldiers’ False Characters Act 1906

1. According to its long title, the purpose of the Seamen’s and Soldiers’ False Characters Act 1906 (“the 1906 Act”) was to “amend the law relating to the falsification of Seamen’s and Soldiers’ Certificates of Service or Discharge, and to false statements made, used, or given in connection with Entry or Enlistment into His Majesty’s Naval, Military, or Marine Forces”.28

2. The 1906 Act comprises just two substantive sections, both of which have been superseded by subsequent legislation.

3. Section 1 (forgery of service or discharge certificate and personation) as amended provides as follows-

“(1) If any person personates the holder of a certificate of service or discharge, he shall on conviction under the Summary Jurisdiction Acts be liable to imprisonment for a term not exceeding three months.29

(2) For the purposes of this section the expression “seaman” means a man who has served in His Majesty’s naval forces, and the expression “soldier” means a man who has served in His Majesty’s military or marine forces.”.

4. As originally enacted, section 1 also criminalised any forging of the certificate of service or discharge of any seaman or soldier. There were, at the time, many soldiers discharged from active service and seeking employment.

28 The 1906 Act was made applicable to the Air Force by the Air Force (Application of Enactments) (No 2) Order 1918, SR & O 1918/548, art 1, Sch. 29 A fine not exceeding level 2 on the standard scale is substituted for imprisonment for a term not exceeding 3 months: Criminal Justice Act 2003, s 304, Sch 32, Pt 2, para 152 (from a date to be appointed).

38 It was felt important to maintain public confidence in a serviceman’s discharge papers as they were the only documents to show to a prospective employer to explain his absence from civilian employment during the period of his service. However, the text prohibiting the forging of these papers has since been repealed30, leaving the interpretation provision in subsection (2) with nothing to bite on. Moreover the repeal has resulted in subsection (1) creating a criminal offence of impersonating someone who is or was in the armed forces. It is not clear why, in the absence of any deception, dishonesty or harmful effect, such an act should be criminalised.31 An impersonation is liable to be punishable as fraud under section 2 of the Fraud Act 2006 (fraud by false representation) if the false representation is made dishonestly and with the intention of making a gain, or causing a loss, for any person. This effectively supersedes section 1 of the 1906 Act. There is no record of any prosecution being brought under this provision.

5. Section 2 (penalty on using or giving false statements for enlistment) is also unnecessary. As amended it provides as follows-

“If any man when entering or enlisting or offering himself for entry or enlistment in His Majesty’s naval, military, or marine forces makes use of any statement as to his character or previous employment which to his knowledge is false in any material particular, he shall be liable, on conviction under the Summary Jurisdiction Acts, to a fine not exceeding level 2 on the standard scale; and if any person makes a written statement as to the character or previous employment of any man which he knows to be false in any material particular, and which he allows or intends to be used for the purpose of the entry or enlistment of that man into His Majesty’s naval, military, or marine forces, he shall be liable, on conviction under the Summary Jurisdiction Acts, to the like fine.”.

6. Section 2 has been superseded by subsequent legislation. A number of Services related provisions make it an offence for a person applying to join the armed forces to give false information in their application. Thus a person enlisting to join the Army who knowingly makes a false answer to any question contained in the attestation paper is liable on summary conviction to

30 Forgery and Counterfeiting Act 1981, s 30, Sch 1, Pt 1. 31 The unauthorised wearing of military uniform remains an offence pursuant to the Uniforms Act 1894, s2.

39 imprisonment for a term not exceeding 3 months or to a fine not exceeding level 1 on the standard scale.32 Similar offences are created in relation to enlisting in the Air Force33, the Royal Navy34 and the reserve forces.35 Moreover, by virtue of the Fraud Act 200636, fraud by false representation is committed by a person dishonestly making a false representation and intending, by making the representation, to make a gain for himself or another.

7. As in the case of section 1, there is no record of any prosecution being brought under this provision.

8. Since sections 1 and 2 are the only unrepealed provisions of the 1906 Act37, the whole of the 1906 Act is now recommended for repeal on the basis that it no longer serves any useful purpose. The repeal of the 1906 Act will permit two consequential repeals in the Criminal Justice Act 2003-

♦ Schedule 25, paragraph 14 (which listed the summary offence under section 1 of the 1906 Act as one no longer punishable with imprisonment)

♦ Schedule 32, paragraph 152 (which amended section 1 of the 1906 Act to substitute a fine for a term of imprisonment).

Extent 9. The 1906 Act extends throughout the United Kingdom.

32 Army Act 1955, s 19(1). Army Act 1955, s 61 also penalises the making of false statements on enlistment. These provisions will be repealed, on a date to be appointed by the Armed Forces Act 2006, s 378(2), Sch 17. They will be replaced by offences created by regulations made pursuant to s 328(2)(f) of the 2006 Act. 33 Air Force Act 1955, ss 19(1), 61. These provisions will be repealed, on a date to be appointed by the Armed Forces Act 2006, s 378(2), Sch 17. They will be replaced by offences created by regulations made pursuant to s 328(2)(f) of the 2006 Act. 34 Armed Forces Act 1966, s 8(1); Naval Discipline Act 1957, s 34A. These provisions will be repealed, on a date to be appointed by the Armed Forces Act 2006, s 378(2), Sch 17. They will be replaced by offences created by regulations made pursuant to s 328(2)(f) of the 2006 Act. 35 Reserve Forces Act 1996, s 9(4), Sch 1, para 5. 36 The 2006 Act, s 2. 37 Section 3 was repealed by the Reserve Forces Act 1980, s 157, Sch 10, Pt 2. Section 4 provides for the short title.

40 Consultation 10. The Ministry of Defence, the Home Office and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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41 Reference Extent of repeal or revocation ______

Injuries in War (Compensation) Act 1914 The whole Act. (4 & 5 Geo.5 c.30)

Injuries in War (Compensation) Act 1914 The whole Act. (Session 2) (5 & 6 Geo.5 c.18)

War Pensions (Administrative Provisions) Section 1. Act 1919 (9 & 10 Geo.5 c.53)

Admiralty Pensions Act 1921 Section 2(3). (11 & 12 Geo.5 c.39)

Pensions (Increase) Act 1971 (c.56) In Schedule 2, in Part 1, paragraph 36.

Income Tax (Earnings and Pensions) Section 641(1)(e). Act 2003 (c.1)

______

Injuries in War (Compensation) Act 1914 Injuries in War (Compensation) Act 1914 (Session 2)

1. This note proposes the repeal of two 1914 statutes (“the 1914 Acts”) which provide for compensation schemes relating to injuries and disability arising from the First World War. The statutes are the Injuries in War (Compensation) Act 1914 (“the First 1914 Act”) and the Injuries in War (Compensation) Act 1914 (Session 2) (“the Second 1914 Act”).

2. The First 1914 Act enabled schemes to be made by Order in Council for the payment of disability pensions and other benefits in respect of persons (not being officers or men of HM Forces) who suffered injuries in the course of war-like operations whilst employed afloat by or under the Secretary of State for Defence. The Second 1914 Act made similar provision in respect of disablement suffered by similar persons whilst employed on shore out of the United Kingdom.38

38 The Second 1914 Act, s 1. Section 2 of the Second 1914 Act extended the scope of the First 1914 Act.

42 3. The 1914 Acts supported two schemes, administered by the Ministry of Defence, which were made during the First World War, namely-

(a) a scheme contained in an Order in Council made on 27 May 191539 which related to persons who were employed afloat under the Admiralty or the Army Council

(b) the Injuries in War (Shore Employments) Compensation Scheme 191440 which related to persons who were employed ashore under the Admiralty, etc out of the United Kingdom.

4. The rates of compensation payable under both schemes have been increased from time to time over the years by a series of Orders in Council. However there has been no increase in the weekly allowances paid under the first scheme since 195841 and the last increase in the second scheme was made in 2001.42 The reason for this is that all the beneficiaries under both schemes have now died, the last survivor passing away in October 2001.

5. The Ministry of Defence have confirmed that there are now no surviving beneficiaries under either scheme. Accordingly the 1914 Acts have now become unnecessary and may be repealed.

6. The repeal of the 1914 Acts will permit the consequential repeal of-

♦ War Pensions (Administrative Provisions) Act 1919, s1 (which related to the administration of schemes made under the 1914 Acts)

39 SI 1915/555. 40 Not published in the SR & O series. 41 SI 1958/1266. 42 SI 2001/1015. Until 2001, orders to increase the weekly payments were made nearly every year. The beneficiaries were former members of the women’s auxiliary forces who suffered disability from their overseas service during the First World War.

43 ♦ Admiralty Pensions Act 1921, s2(3) (which applied provisions about forfeited pensions to any pension, grant or allowance paid pursuant to the 1914 Acts43)

♦ Pensions (Increase) Act 1971, Sch 2, para 36 (which related to a widow’s pension payable in accordance with a scheme under the Second 1914 Act for established civil servants employed abroad within the sphere of military operations)

♦ Income Tax (Earnings and Pensions) Act 2003, s 641(1)(e) (which exempts from income tax any pension payable pursuant to the 1914 Acts).

Extent 7. The 1914 Acts extend throughout the United Kingdom.

Consultation 8. The Ministry of Defence, HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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43 Admiralty Pensions Act 1921, s 2(3) also contains an obsolete reference to the Government War Obligations Acts 1914 to 1918. Since these Acts were repealed by the Statute Law Revision Act 1958, s4(2), this reference may also be repealed as obsolete.

44 Reference Extent of repeal or revocation ______

Naval and Military War Pensions &c. The whole Act. Act 1915 (5 & 6 Geo.5 c.83)

Statute Law (Repeals) Act 1981 (c.19) In Schedule 2, paragraph 4.

______

Naval and Military War Pensions &c. Act 1915

1. The purposes of the Naval and Military War Pensions &c. Act 1915 (“the 1915 Act”) included making better provision for the care of naval and military officers and men disabled in consequence of the First World War. The 1915 Act has since been extended to the Air Force.44

2. The only substantive provision remaining in the 1915 Act is section 3(1)(j).45 Section 3, as originally enacted, vested in a statutory committee of the Royal Patriotic Fund Corporation various functions regarding pensions and other benefits for death or disablement due to service in the First World War. The statutory committee was dissolved in 1917 when its functions were either abolished or transferred to other authorities.46 These functions (now vested in the Secretary of State) were set out in section 3(1) and were largely abolished in 1981.47 The only function remaining is the one specified in section 3(1)(j) which has effect as follows-

“(1) It shall be a function of the Secretary of State- (j) to make provision for the care of disabled officers48 and men after they have left the service, including provision for their health, training and employment;”.

3. To the extent that section 3(1)(j) continues to be relied on by the Secretary of State in caring for the needs of surviving disabled officers and men (and disabled nurses) from the First World War, it is clearly

44 Air Force (Application of Enactments) (No 2) Order 1918, SR & O 1918/548. 45 Until 2005 section 6 (which related to the Royal Patriotic Fund Corporation) also remained in force. Section 6, however, has been repealed by the Armed Forces (Pensions and Compensation) Act 2004, s7(4), Sch 3. The repeal took effect on 11 November 2005 by virtue of SI 2005/3107, art 3. 46 Naval and Military War Pensions etc (Transfer of Powers) Act 1917, s 5(2), Sch. 47 Statute Law (Repeals) Act 1981, s 1(1), Sch 1, Pt 9.

45 unsatisfactory that it should sit as a truncated provision in isolation from other statutory provisions that provide benefits to surviving disabled officers and men (and nurses) from that war. A more appropriate place for it would be in the Naval and Military War Pensions &c (Administrative Expenses) Act 1917 which contains other provisions whereby the Secretary of State has functions for the benefit of surviving disabled officers and men from the First World War. This re-positioning may be achieved by the entry in the attached Schedule of consequential and connected provisions, and will permit the whole of the 1915 Act to be repealed. The entry does not replicate the reference in section 3(1)(j) to training and employment, given the present age of survivors from the First World War.

4. Consequential upon the repeal of section 3(1)(j) will be the repeal of the provision in the Statute Law (Repeals) Act 1981 that amended the opening words of section 3(1).49

Extent 5. The 1915 Act extends throughout the United Kingdom.

Consultation 6. The Ministry of Defence, the Department for Work and Pensions, the Royal British Legion and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

(32/195/49) LAW/005/005/06 01 February 2008

48 By virtue of the War Pensions (Administrative Provisions) Act 1919, s 9, the reference to officers in section 3(1)(j) includes a reference to nurses. 49 The 1981 Act, Sch 2, para 4.

46 SCHEDULE

CONSEQUENTIAL AND CONNECTED PROVISIONS

Naval and Military War Pensions &c. (Administrative Expenses) Act 1917 (c.14)

. After section 6 of the Naval and Military War Pensions &c. (Administrative Expenses) Act 1917 insert- “6A Function of Secretary of State to provide for the care of disabled officers and men and disabled nurses It shall be a function of the Secretary of State to make provision for the care of disabled officers and men and disabled nurses after they have left naval, military or air force service, including provision for their health.”.

47 Reference Extent of repeal or revocation ______

Sailors and Soldiers (Gifts for Land The whole Act. Settlement) Act 1916 (6 & 7 Geo.5 c.60) ______

Sailors and Soldiers (Gifts for Land Settlement) Act 1916

1. The purpose of the Sailors and Soldiers (Gifts for Land Settlement) Act 1916 (“the 1916 Act”) was to authorise the Government’s agriculture Departments and local government to accept gifts for the purpose of providing former servicemen with employment in agriculture.

2. Section 1(1) of the 1916 Act is the main provision and sets out the basis on which the Board of Agriculture and Fisheries (now the Secretary of State for Environment, Food and Rural Affairs) and county councils could accept such gifts. The gifts could be by will or otherwise and, if accepted, had to be applied wholly or mainly for the settlement or employment in agriculture of men who had served in any of His Majesty’s naval or military forces.50 The recipient Department or county council had to hold any land, the subject of any such gift and to administer the trusts affecting the gift. Power was given to borrow on the security of the trust property. All expenses were to be defrayed out of the trust property or its income.

3. Subsections (3) and (4) of section 1 applied subsection (1) to Scotland and Northern Ireland with necessary modification as to the references to the central and local government authorities in those countries.

4. The origins of the 1916 Act lay in a gift made by Robert Buchanan of Bosbury, Herefordshire. In order to commemorate the death of his only son who was killed in action in 1916, Mr Buchanan wished to donate some land to the Board of Agriculture to be held on trust to provide smallholdings for servicemen returning from the First World War. As the law stood, however, there were doubts about whether the Government could accept such a gift. As

50 The 1916 Act has since been extended to the Air Force: Air Force (Application of Enactments) (No 2) Order 1918, SR & O 1918/548.

48 the Parliamentary Secretary to the Board of Agriculture explained during the Commons Second Reading debate on 28 November 1916- “This Bill is …. necessary because it is a principle of general acceptance that public Departments and authorities are not allowed to do anything which they are not particularly and expressly enabled to do by statutory authority, and there was some doubt as to whether the Board of Agriculture were enabled to accept gifts of this kind and act as trustees for carrying out trusts in connection with such gifts, and therefore it has been thought right to settle the matter by allowing the State or public authorities to accept gifts of land of that nature …. . I have always felt that a grant of land for settlement by soldiers who have come back from the War, and the building of cottages and the provision of gardens around the cottages, would be the finest possible war memorial which the villages up and down the countryside could possibly make.”51

5. The passing of the 1916 Act facilitated the gift of land that Mr Buchanan wished to make. The land became known as the Bosbury Trust Estate. The trust was registered as a charity on 22 July 1964 under the name of the Buchanan Trust. The objects of the trust are to provide ‘land for smallholdings for ex-servicemen particularly those who served in the 1914-19 [sic] war’. The land is still used as smallholdings. The trustees are Herefordshire Council.

6. The 1916 Act is best viewed in the context of the social and economic conditions prevailing in the United Kingdom at the time of the First World War. Its immediate purpose was to overcome a legal obstacle in relation to gifts to public authorities. But the main underlying purpose seems to have been to provide work for ex-servicemen who had served in the war, thereby relieving pressure on the labour market. There was also a need to maximise the yield from agricultural land during and just after the war. The 1916 Act had much in common with another Act of that year, the Small Holding Colonies Act 1916 whereby ex-servicemen (mostly without farming experience) were put to work on agricultural smallholdings that the State had acquired for the purpose.52

51 Hansard (HC), vol 88, col 278 (Mr Acland). 52 The practical value of the Small Holding Colonies Act 1916 was limited. Most of that Act was repealed by the Agriculture Act 1970, s 113(3), Sch 5, Pt 3 and the Act was repealed as a whole (together with

49 7. The need for the 1916 Act no longer exists. No public authority today would wish to accept gifts that had to be applied in settling ex-servicemen on the land.53 Moreover, changes in agriculture during the second half of the twentieth century have greatly reduced the numbers that can be employed on the land.54 In short, the 1916 Act has no practical modern use and its repeal is recommended on that basis. Records at the National Archives indicate that the land gifted by Mr Buchanan is the only estate that has triggered the use of the 1916 Act.55

8. However, the fact that the provisions of the 1916 Act have been invoked on this one occasion at least means that a savings provision is desirable to ensure that the relevant public authorities are able to continue to administer any land or other property that they still hold as a result of gifts that they have accepted pursuant to the 1916 Act. The attached Schedule of consequential and connected provisions contains this savings provision.

Extent 9. The 1916 Act extends throughout the United Kingdom.

Consultation 10. The Department for Environment, Food and Rural Affairs, HM Treasury, the Ministry of Defence, the Office of the Deputy Prime Minister (in relation to local government), the Charity Commission, Herefordshire County Council, (as trustee for the Buchanan Trust), the Local Government Association, the Welsh Local Government Association, the Tenant Farmers Association, the Agricultural Law Association, the Central Association of Agricultural Valuers and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal. (32/195/49) LAW/005/005/06 01 February 2008

the proviso in section 1(1) of the Sailors and Soldiers (Gifts for Land Settlement) Act 1916) by the Statute Law (Repeals) Act 2004, s 1(1), Sch 1, Pt 3. 53 Nowadays local authorities have power to accept, hold and administer gifts of property in particular circumstances: Local Government Act 1972, s 139. 54 Some of these changes relate to adjustments in farming methods, including improvements resulting in increased food production. Other changes came about because of the influence of the Common Agricultural Policy after the United Kingdom joined the EEC in 1973 and because of more general social and economic developments since the 1950s. 55 National Archives Catalogue Reference MAF 139/57.

50 SCHEDULE

CONSEQUENTIAL AND CONNECTED PROVISIONS

Sailors and Soldiers (Gifts for Land Settlement) Act 1916 (c.60)

. The repeal by this Act of the Sailors and Soldiers (Gifts for Land Settlement) Act 1916 does not affect the operation of section 1 of that Act (power to accept and administer gifts for settlement of ex-sailors and soldiers on land) in relation to any gift accepted before the commencement of this Act.

51 Reference Extent of repeal or revocation ______

Polish Resettlement Act 1947 Section 7. (10 & 11 Geo.6 c.19)

______

Polish Resettlement Act 1947 Background

1. The Polish Resettlement Act 1947 (“the 1947 Act”) was passed to resolve the various problems which arose from certain Polish forces and their dependants remaining in the UK after the Second World War. These men had fought under British Command during the war but were not strictly Allied Forces after the Government of Poland withdrew their recognition of them in 1945.

2. The British Government had two basic aims concerning the Polish refugees. To enable those who wished to return to Poland to do so as soon as possible. And for those who wished to remain, to assist in assimilating them into the life of this country. Responsibility for these men and for their families had initially been in the hands of the Interim Treasury Committee for Polish Questions. This had been established when the “Caretaker Government” withdrew its recognition of the London Polish Government on 5th July 1945. The 1947 Act transferred this responsibility to various Government Departments and authorised them to provide in their various ways for the 127,000 Poles then living in the UK.

3. Section 3 of the 1947 Act enabled the Secretary of State to provide accommodation, in camps, hostels or other establishment, for persons in Great Britain from any of the categories specified in section 2(2), (and their dependants)-

♦ Poles whose registration under the Aliens Order 192056 took place on or after 1 September 1939 who had been permitted to enter, or

56 SR & O 1920/448.

52 remain in, the UK in view of the circumstances attributable to the Second World War

♦ former members of the forces specified in section 1(1)57 (including the naval detachment mentioned therein) and members of any of those forces relegated from service therewith

♦ wives of men in the above categories and any woman who, having been the wife of a man of either category, had ceased so to be and had not re-married

♦ certain persons who had been permitted to enter the UK on or after 1 September 1939 who were followers of a body of Polish forces entering the UK (and dependent thereon or on members thereof).

4. Section 7 of the 1947 Act empowered the Minister of Labour and National Service (now the Secretary of State for Education and Skills58)-

“in accordance with a scheme made by him with the approval of the Treasury, to make arrangements, in connection with the emigration of persons of any description for whom the Secretary of State has power to provide accommodation under section 3 of this Act, for facilitating the removal of such persons and their belongings to their destinations and making payments in or towards defraying the expenses of providing facilities therefor”.59

5. The powers given by section 7 no longer serve any useful purpose. Indeed it seems doubtful whether they were ever used – no scheme under

57 S 1(1) specified- ♦ the Polish naval detachment mentioned in the agreement made between the UK and the Government of Poland on 18 November 1939 ♦ the Polish armed forces organised and employed under British command in pursuance of the agreement made on 5 August 1940 ♦ the Polish resettlement forces defined in section 10(1) as meaning the Polish Re- Settlement Corps, the Polish Resettlement Corps (Royal Air Force), the Polish Re- Settlement Section of the Auxiliary Territorial Service and the Polish Re-Settlement section of the Woman’s Auxiliary Force. 58 By virtue of the Secretaries of State for Education and Skills and for Work and Pensions Order 2002, SI 2002/1397. 59 The 1947 Act, s 7(1), which also provided that such arrangements should not extend to members of any of the Polish resettlement forces relegated from service or to former members of any of those forces emigrating immediately on their discharge (or to dependants of any such members or former members).

53 section 7 has ever been published as a statutory order or instrument. In any event it is clear from the wording of section 760 that it was intended only as a temporary provision. Its repeal after 60 years is long overdue and is now recommended.

Extent 6. Section 7 of the 1947 Act extends throughout the United Kingdom.

Consultation 7. HM Treasury, the Department for Work and Pensions, the Department for Education and Skills, the Home Office, the Ministry of Defence, the Polish Ex-Combatants Association and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

32/195/49 – LAW/005/005/06 01 February 2008

60 ie “ … for facilitating the removal of such persons … to their destinations”.

54 PART 2 COUNTY GAOLS GROUP 1 - BUCKINGHAMSHIRE ______Reference Extent of repeal or revocation ______10 Geo.2 c.10 (1736) The whole Act. (Aylesbury Gaol and Shire Hall: Rate in Bucks Act) ______

10 Geo.2 c.10 (1736) (Aylesbury Gaol and Shire Hall: Rate in Bucks Act 1736) Background and purpose 1. Until the very end of the 17th century, and into the early 18th, the power to build and manage county gaols was vested in the local sheriffs. It was only in 1698 that the local justices started to secure limited control of the county gaols1, a control which extended to building new facilities and repairing existing stock, but which fell short of the power to manage gaols and their inmates. Many gaols at this time had fallen into disrepair and their condition produced a significant health hazard.

2. In Buckinghamshire, prior to 1734, the local justices had started work on building a new county gaol at Aylesbury following a finding and recommendation from the grand jury at the county assizes. On the basis that the present gaol (a rented house in the town) had become “insufficient for the safe keeping of prisoners”, it was decided that, given its convenient location, the house should be purchased and “a Gaol and Court-Rooms or Shire Hall for the publick Service of the said County should be thereon erected”.2 The land was conveyed, several assessments were made by the justices sitting in quarter sessions (to precept moneys from the county for the purchase and subsequent construction), and work commenced on the project. Notwithstanding the “very considerable progress” that had been made, but before completion could be achieved, the funding ran out. The result was buildings which had not “been perfected and finished”; a structure which was being damaged by the weather; a project of which “the greatest part thereof remains unserviceable”; and a

1 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) (“the 1698 Act”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719). (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p. 181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784). Rebuilding of gaols was also provided for in the 1784 Act. 2 Preamble to 10 Geo.2 c.10 (1736) (“the 1736 Act”), being “An Act to impower the Justices of the Peace for the County of Bucks, to raise Money to discharge the Debts incurred on account of building a Gaol and Court-Rooms, and for finishing the same for the Use of the County”.

54 labour force and suppliers left unpaid, so that “they and their families are much impoverished”.3

3. Recognising that more moneys had to be raised (to pay off the lawful creditors, and “to finish and compleat the said buildings for the use and accommodation of the said County”), and that this unsatisfactory state of affairs could not be rectified without “the assistance of Parliament”, the county justices sought and obtained the 1736 Act.4

4. The 1736 Act, in order to fulfil its purpose, authorised (in broad terms) the following steps: (a) the county justices at quarter sessions (held after 24 June 1737) to assess the amounts of money “justly due” to the various workmen, labourers and others for work, services and materials already supplied; to assess (based on an examination of “able and experienced workmen”) the sums reasonably needed to complete the Aylesbury gaol, court rooms and related buildings; and to assess the sums needed to defray the costs of obtaining an Act of Parliament;5

(b) to assess the amount of county rate which would need to be levied in order to raise the total moneys required, so long as the annual rate on each hereditament did not exceed 4d. in the £, and to apportion the total to be levied evenly across each town, liberty, parish, hamlet and the like within the county;6

(c) to effect collection, enforcement and accounting of the revenues in accordance with the mechanisms prescribed in the 1736 Act and in earlier legislation7, which legislation was specifically applied to the Buckinghamshire justices;8

3 The 1736 Act, preamble. 4 Ibid. 5 The 1736 Act, s.1. (The sections in the Act are not numbered but, for ease of reference, we have adopted a numbering arrangement based on the sequence of section side headings). 6 The 1736 Act, ss.2, 3. The town of Buckingham was specifically exempted from contributing to the costs relating to the new county gaol because it already supported alone a common gaol in the town: ibid., s.13. 7 Namely the 1698 Act (as made perpetual by the 1719 Act): see para 1 above. 8 The 1736 Act, ss.4-7, 9.

55 (d) the county justices to hold the ground to be acquired and the new buildings “for ever hereafter” in trust for “the publick use and benefit” of the county;9

(e) to enable the justices to contract with builders and others to complete the gaol, court rooms and ancillary buildings, to pay for all such works, and then to transfer any surplus moneys into the County Stock (to be applied for appropriate uses);10

(f) to require the justices to keep the gaol (once built and commissioned) secure for the imprisonment of “felons, debtors, and offenders”, and to permit the raising by local rate of such further moneys as became necessary to keep the gaol, court rooms and buildings “in good and sufficient repair” (and for strengthening the gaol);11 and

(g) to provide for a right of appeal by persons “aggrieved” (through assessment or overcharge) to the county justices sitting at quarter sessions for such order as “shall seem meet” to the justices, and for a time limit on any legal proceedings under the Act.12

Status of the 1736 Act 5. The 1736 Act was designed to supplement existing statutory powers enabling justices to build and repair gaols in their counties. Although the preamble to the Act does not mention the 1698 Act, it was probably under this national legislation that the justices had purported originally to acquire land and to start work. The 1736 Act appears to have been needed for two principal purposes: to pay out moneys retrospectively for debts incurred, and to raise moneys by rating precept on (for example) towns, parishes and liberties.13

9 The 1736 Act, s.8. 10 The 1736 Act, ss.10, 11. 11 The 1736 Act, s.12. 12 The 1736 Act, ss.14, 16. 13 The 1698 Act, s.1 provides for the charging of sums “upon the severall Hundreds Laths Wapentakes Rape Ward or other Divisions of the said County” but, by section 5, exempted from assessment for county gaols “any person inhabiting in any Liberty City Towne or Borough-Corporate which have common gaols for felons taken in the same”. It is not clear how, prior to the 1736 Act, the county justices purported to acquire land; the 1698 Act appears silent on that point.

56 6. The 1736 Act did, in the body of the Act, refer to and extend to the county justices the powers contained in the 1698 Act in order to facilitate implementation of its purposes.14

7. For the reasons explained below, because the Aylesbury gaol was decommissioned and demolished by 1849, the whole of the 1736 Act has become spent and may now be repealed.

Archive-based history 8. In the period from 1720 to 1723 the county quarter sessions resolved to build a new county gaol in Aylesbury, and authorised a series of three county rates for the purpose. The site of the existing gaol was purchased for construction of the new gaol. By 1726 the building works had gone into abeyance because of escalating debts (accrued since 1724 and amounting to almost £2,000) and lack of moneys to complete the project. The county justices also had doubts as to the legality of raising further sums by rate, and decided to petition Parliament for authorising legislation. The legislative process appears to have spanned the years 1731 to 1736, at which juncture the enabling Act was passed. During 1737, using their new powers, the justices ordered £3,916 to be raised by rate, and the accrued debts to be paid off. Contracts for continuation of the works were let, and the project was completed by about 1740.15

9. The county gaol at Aylesbury (in Buckinghamshire) is recorded as existing in 1837.16 It was inspected in 1841 and found seriously wanting.17 As a consequence, it was replaced by the county justices, and the gaol buildings were demolished by February 1849. The adjoining court buildings (fronting Market Square) were retained, and part of the cleared site was then used for the construction of judges’ lodgings. Today the court operates as Aylesbury Crown Court.18

14 The 1736 Act, s.6. 15 See Col. G.R. Crouch’s supplemental paper published in Records of Bucks, vol. XII, pt. 1 (1927) (the journal of the Bucks Archaeological Society). Col. Crouch was sometime clerk of the peace for the county, and his work appears to have been based on the quarter sessions records. We are grateful to Mr. Roger Bettridge, Buckinghamshire County Archivist, for this reference and for other historic details. 16 Second Report of the Inspectors appointed under the provisions of the [1835] Act 5&6 Will.4 c.38, To visit the Different Prisons of Great Britain (1837), pp. 286 - 299 (Buckinghamshire Aylesbury County Gaol). 17 The 1841 inspection was carried out by Mr Whitworth Russell (a Home Inspector of Prisons) and The Hon. and The Revd. Sidney Godolphin Osborne (a county justice).

57 10. The present prison in Aylesbury, operated by HM Prison Service, was opened at the Bierton Road site as a county gaol in 1847, and served as such until 1890 when it became a women’s prison. From then until 1989 it held, at different times, various different categories of offender. In 1989 (and continuing) the prison was designated as a long-term young offender institution.19

Extent 11. The 1736 Act applies locally only within the county of Buckinghamshire, in England.

Consultation 12. The Home Office, HM Prison Service, the Department for Constitutional Affairs, HM Courts Service and Buckinghamshire County Council have been consulted about this repeal proposal.

(32-195-452) LAW/005/002/06 01 February 2008

18 The obligation to maintain and repair Aylesbury Crown Court is held by HM Courts Service (within the aegis of the Department for Constitutional Affairs): see Courts Act 2003, s.3 (effective 1 April 2005: SI 2005 No. 910) for current provision and maintenance obligations. 19 See www.hmprisonservice.gov.uk/prisoninformation/locateaprison.

58 COUNTY GAOLS GROUP 2 - CAMBRIDGESHIRE ______Reference Extent of repeal or revocation ______1 Geo.4 c.lxxvii (1820) The whole Act. (Ely Sessions House and House of Correction Act)

7 & 8 Geo.4 c.cxi (1827) The whole Act. (Cambridge Gaol Act)

2 & 3 Vict. c.ix (1839) The whole Act. (Cambridge Gaol Act) ______

1 Geo.4 c.lxxvii (1820) (Ely Sessions House and House of Correction Act 1820) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.20 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.21 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. At Ely (in Cambridgeshire) in the early 19th century there existed two penal institutions: a house of correction (managed by the local justices) and a common gaol (belonging to the bishop of Ely).

20 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 21 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act).

59 3. The justices for the county of Cambridge (acting through general quarter sessions and the local assizes)22 in, or just prior to, 1820 formed the view that the existing house of correction in Ely was ”very decayed, insecure, and unfit for the safe custody of prisoners committed thereto” and needed replacing.23 At the same time the justices thought that the local sessions house (courthouse) was “very small, incommodious, and unfit for the due administration of justice”, and that it too should be rebuilt “for the service of the said Isle”.24

4. In order to secure the necessary authority to raise and expend moneys on the building project, the justices promoted the Act of 1820.25 The broad purposes of the Act were: (a) to authorise the carrying out of the Act’s requirements by a minimum of two justices for the isle, under the direction of the general quarter or special sessions;26

(b) to authorise the demolition of the existing sessions house and house of correction (both in Ely), and to rebuild them within or close to the city;27

(c) to authorise the sale or re-use of materials salvaged from the former buildings, and the sale of their sites (privately or by public auction);28

22 The assizes were held for the Isle of Ely. The area was treated as a separate administrative division within the county of Cambridge. 23 Preamble to 1 Geo.4 c.lxxvii (1820) (“the 1820 Act”), being “An Act for erecting a new Sessions House and House of Correction at Ely in the Isle of Ely, and for reimbursing to the Inhabitants of a Part of the said Isle the Charges of a Sessions House and House of Correction lately erected at Wisbech in the said Isle”. 24 The 1820 Act, preamble. 25 This 1820 Act also had a secondary purpose. A new sessions house and a house of correction had previously been built at Wisbech “for the service of the isle” but “unadvisedly” (ie. inadvertently) the costs of that project, which should have been borne by all the inhabitants of the isle, had been levied only on those living within the hundred of Wisbech and part of the hundred of Witchford. The Act sought to rectify this mistake by authorising reimbursement of the affected residents by payment “out of the public stock or rates of the said Isle”. The rebate was to designed to cover a backdated period of 20 years (maximum) and would be set-off against future liability to rates: the 1820 Act, preamble and ss.23, 24. 26 The 1820 Act, s.1. The justices were also permitted to appoint such committees as were necessary to supervise the various contracts and works (see below), and to limit their terms of reference and delegated authority: ibid., s.30. 27 The 1820 Act, s.2. The house of correction was to be provided for accommodating in safe custody “felons, vagrants, and other offenders, who shall be lawfully committed thereto”: ibid. The justices were authorised to erect ancillary offices, apartments, chapels, yards, wells and so on for both the gaol and the sessions house, and to fit out each complex with furniture and utensils.The Act provided a continuing maintenance obligation in respect of all the structures and fitments, to be activated “when and as occasion shall require”: ibid., ss.2, 18. 28 The 1820 Act, ss.3, 4. The purchase moneys were to be paid over to the treasurers for the isle of Ely, and were to be used to facilitate the purposes of the Act.

60 (d) to empower the justices to purchase such land and buildings as they “deemed necessary” for the purposes of the 1820 Act, to pay landowners for the value of the land taken and to provide compensation “for any loss or injury” which might be caused by the acquisitions (and to provide that all the costs and charges be borne from “the monies to be charged and levied under the authority of [the] Act”);29

(e) to provide mechanisms for determining land purchase values in default of agreement or where land title was defective, and for facilitating sales by persons and bodies with legal incapacity;30

(f) to provide that all land purchases should vest in the clerk of the peace for the isle of Ely (and his successors, each acting as trustee), together with the sessions house and house of correction at Wisbech and the new sessions house and house of correction at Ely once built;31

(g) to provide that each of the houses of correction and each of the sessions houses should be insured, maintained and furnished with moneys “out of the public stock or rates of the said isle”;32

(h) to authorise the justices to appoint (and, where necessary, dismiss) officers to deliver the Act’s purposes and to manage the sessions houses and the houses of correction (and the prisoners in the latter), and to make regulations governing the admission, classification and employment of prisoners in the houses of correction, the fees payable

29 The 1820 Act, s.5. This power to acquire did not extend to any lands or buildings owned by the palace of the see of Ely, or to premises belonging to the common gaol at Ely (except, in either case, with the diocesan bishop’s consent): ibid., s.39. 30 The 1820 Act, ss.6-15. The provisions included a mechanism for determining the quantum of purchase money or compensation payable by special jury, and mechanisms for making payment of such moneys into a special account at the Bank of England (to be distributed by order of the Court of Chancery) or to trustees for the benefit of those with legal incapacity. There was to be a rebuttable presumption that where lands were being purchased under the 1820 Act, the person or body in possession had lawful title: ibid., s.14. 31 The 1820 Act, ss.15, 16. 32 The 1820 Act, s.18. All furnishings and utensils were to vest in the justices for the isle: ibid., s.19. It was made an offence to cause damage to the sessions houses and the houses of correction (with a maximum penalty of transportation), or to “secrete, buy, receive, or take into pawn” without authorisation any of the furniture or effects from the buildings (maximum penalty £20 fine): ibid., ss.17, 20.

61 to the keepers, and the forfeitures for which the keepers would be liable in the event of neglect of duty;33

(i) to empower the justices to draw moneys for the fulfilment of the project (including promotion of the 1820 Act) “out of the public stock or rates of the said isle” as had accrued at the time of the Act’s passing; then to supplement that fund by levying a “special yearly rate” on the local inhabitants of the isle; and, finally, once those sources were exhausted, to draw moneys from “the general public stock or rates of the said isle” ordinarily levied;34

(j) to empower the justices to raise additional funds by mortgage secured on the special yearly rate;35 and

(k) to provide for the recovery of penalties imposed under the 1820 Act by forfeiture or gaol; to provide a limitation period and ancillary requirements in relation to legal proceedings; and to provide an appeal mechanism for those persons who were “aggrieved by any thing done or omitted to be done in the execution of [the] Act”.36

Status of the 1820 Act 5. The principal purpose of the 1820 Act was to authorise the construction of a new house of correction and a new sessions house in Ely.

6. As indicated below, it appears that the house of correction built pursuant to the Act was complete by 1821 and closed in 1878. Thereafter, the building was temporarily let for use as an armoury, extending an earlier part-letting. Abolition of

33 The 1820 Act, ss.21, 22. The rules were also to govern the provision of “aid and relief” to prisoners whilst in confinement and on discharge from custody: ibid., s.22. 34 The 1820 Act, s.24. The justices were authorised to levy “a special yearly rate or assessment in the nature of an isle or county rate, not exceeding one penny in the pound” based on the annual value of the various hereditaments, and the product of that rate was to be held as “a separate and distinct account". The special yearly rate could be charged until “the said several purposes of [the] Act shall be fully answered and satisfied: ibid., s.25. 35 The 1820 Act, s.26. Each mortgage, in prescribed form, was to be registered by the clerk of the peace for the isle. Mortgages so raised could be transferred or assigned by the lender, subject to additional registration: ibid., ss.26, 27. No lender was to be treated as preferential, although the justices had discretion to decide the sequence of discharge: ibid., s.28. Interest was to be paid to each lender “from time to time” in each year: ibid., s.29. 36 The 1820 Act, ss.32-38. Appeals were to lie to the general quarter sessions of the peace for the isle, the determinations of which were to “be final, binding, and conclusive to all intents and purposes whatsoever”: ibid., s.35.

62 the city’s common gaol in 1836 was expressed to be without prejudice to the continuing existence of the houses of correction at Ely and Wisbech.37

7. The Ely sessions house (also known as the shire hall) was built at the same time as the house of correction, and was sited close by. It presently houses Ely Magistrates Court, which falls under the aegis of HM Courts Service.

8. Accordingly, the 1820 Act is now spent, and may be repealed in whole.

7 & 8 Geo.4 c.cxi (1827) (Cambridge Gaol Act 1827) Background and purpose 9. In July 1823 the grand jury for the town of Cambridge reported to the town’s quarter sessions that the common gaol (situated in the parish of St. Andrew the Great) was “too small, insecure, and unfit for the proper accommodation of the prisoners usually confined therein”, that its limited space was “injurious to the health of the prisoners” and that “its present site was improper”.38 In October of that year the jury recommended that a new gaol be erected on a larger scale “so as to admit of the proper classification of the various prisoners”.39 The justices accepted that recommendation and promoted the 1827 Act to facilitate the building of the gaol with minimum delay.

10. The principal purposes of the 1827 Act (in broad terms) were these: (a) to authorise the town justices to build and fit out “a proper and sufficient new common gaol and house of correction” for the town of Cambridge which would provide rooms for the reception of “debtors, criminals, and others”, yards, out-offices, an infirmary and a gaoler’s residence;40

37 Liberties Act 1836 (6 & 7 Will.4 c.87), ss.13, 14 (now repealed). The amending Liberty of Ely Act 1837 (7 Will. 4 & 1 Vict. c. 53), ss.2, 7 (also repealed) confirmed the functioning of the Ely and Wisbech houses of correction as repositories for convicted prisoners, and the administrative status of the isle of Ely as a division of the county. 38 Preamble to 7 & 8 Geo.4 c.cxi (1827) (“the 1827 Act”), being “An Act for building a new Gaol for the Town of Cambridge, and for other Purposes connected therewith”. 39 The 1827 Act, preamble. 40 The 1827 Act, s.1. The layout and operational arrangements were to be designed to enhance “the separation, employment, and regulation of the prisoners confined therein”: ibid., preamble. The Act gave the justices power and discretion to do anything “requisite and necessary” to fulfil the Act’s purposes: ibid., s.1. Once constructed and operational, the new gaol was to be designated the common gaol and house of correction for (and within) the town of Cambridge for “so long as the same shall be so used and no longer”, and the town’s mayor, justices, coroners and other officials were to have full jurisdiction within it: ibid., ss.3, 21. Nothing in the 1827 Act was to affect or diminish the “rights, liberties, immunities, exemptions, franchises, and privileges” of the university or its constituent colleges or halls, or those of the Cambridge town corporation: ibid., s.56.

63 (b) to authorise the purchase of sufficient lands (to a maximum of two acres) for the gaol project, comprising either the parcel of allotment land described in the schedule to the Act or such other parcels of land situated in the town, or within one mile of the town’s boundaries, as appeared “proper or convenient” for the gaol;41

(c) to provide mechanisms to facilitate sales by persons or bodies with legal incapacity, to determine property valuations by special jury where landowners were absent or failed or refused to negotiate, and to place purchase moneys in a Bank of England account (to the order of the Court of Exchequer) or with trustees so that good title to the affected land could pass to the clerk of the peace;42

(d) to authorise the collection of building materials and the use of those materials (which were to be vested in the justices) in the construction of the gaol and house of correction43, and to make the justices responsible for the future repair and upkeep of the two institutions;44

(e) to raise moneys for the new gaol project by three methods:45

41 The 1827 Act, s.2. In the event that the justices could not secure acquisition by agreement, by “making or tendering satisfaction”, they were given powers of compulsory purchase: ibid. Land acquired was to be conveyed to and held in trust by the town’s clerk of the peace. Nothing in the 1827 Act was deemed to authorise the compulsory taking of any lands or walks owned by the university of Cambridge or its constituent colleges (or halls), or the erecting of any gaol structure within 200 yards of any public buildings or grounds owned by the university or colleges without those bodies’ prior consent, or the demolition of any dwellinghouse or building or the taking of any grounds adjoining any such house without the owner’s prior consent, or the taking of the then existing county gaol and house of correction and adjoining premises: ibid., s.2. 42 The 1827 Act, ss.4-18. The form of conveyance on sale was prescribed by the Act: ibid., s.18. There was to be a rebuttable presumption that the person in possession of affected land had lawful title to it and was entitled to receive the purchase moneys: ibid., s.13. On payment or legal tender of the agreed or determined purchase price, and in the event of non-conveyance of title, the justices were authorised to vest title in the clerk of the peace and to effect lawful entry: ibid., s.15. Special provision was made for the acquisition of interests owned by mortgagees and by leaseholders, tenants and other occupiers: ibid., ss.16, 17. 43 The 1827 Act, ss.1, 19. Unlawful interference with the materials, and causing malicious damage to the completed gaol complex, were both made actionable (the latter as a punishable “misdemeanor”): ibid., ss.19, 20. The gaol was to be constructed so that the outside walls would be surrounded by a strip of undeveloped land at least 30 feet wide (extended to 60 feet where the boundary walls abutted a public street), designed “to preserve a free circulation of air” around the gaol “at all times”. The intervening undeveloped space was to be used only for “garden, yard, or area” for the gaol: ibid., s.36. 44 The 1827 Act, s.21. The costs of furnishing the new gaol and house of correction (when completed), of future repairs and maintenance (and of maintaining the prisoners), and of paying for salaries and insurance, were to be borne from “such rates, stock, or funds of the said town of Cambridge as are now legally applicable to the like purposes in respect to the present [ie. the former] gaol”: ibid. The town mayor, with the gaoler and the keeper, was to be responsible for the prisoners in the town’s custody: ibid. Furniture and utensils in the new gaol were to vest in the town justices: ibid., s.42. Theft of these items, or receiving them as stolen goods, was made an offence: ibid., ss.42, 43. 45 All the moneys raised were to be used in the following order: for defraying the costs of obtaining the 1827 Act; for making the interest payments on the borrowed sums; for paying the land acquisition costs

64 (i) by the justices selling off (and by reinvesting the proceeds from) the redundant materials from the old gaol building and its furnishings;46

(ii) by the justices assessing and levying an annual rate to yield up to £4,000 per annum (with the total rate capped at £15,000) on the town’s land owners and occupiers, to be apportioned fairly between “each parish, ward, or precinct within the said town”;47 and

(iii) by empowering the justices to borrow moneys secured by mortgage on the additional rate (and providing for the method of discharge);48

(f) to provide mechanisms for the recovery of rates;49

(g) to permit the justices to employ gaolers, keepers, a governor, chaplain, surgeon and other appropriate officers (together with a treasurer or treasurers and collectors of rates); to take security for good behaviour in office from such appointees; and to pay from the additional rate reasonable “allowances and compensations” for the appointees’ services;50

and the costs of building and fitting-out; and, finally, for the “gradual discharge” of the principal moneys borrowed and accrued interest: the 1827 Act, s.34. 46 The 1827 Act, s.22. Any materials which could be reused in the new building were to be so deployed. The site of the old gaol could not be realised because it remained vested in the trustees of the Hobson’s Charity (based in Cambridge), “the said site having been originally gratuitously allowed to be built upon for the convenience of the said town”: ibid. 47 The 1827 Act, ss.23, 25. The upper limit of £15,000 was designed to cover not only the land acquisition and building costs, but also the costs entailed in securing the 1827 Act. The liability of the university, colleges and halls to pay the additional rates on the various buildings and lands in their “actual occupation and manurance” was specifically limited to the extent and level of their previous liability to contribute to the old gaol and house of correction: ibid., s.24. 48 The 1827 Act, ss.30-35. Mortgages were to be repaid with “legal or lower interest” (on a half-yearly basis), were to be in prescribed form, were to be assignable, were not to give priority to individual creditors, and were to be registered by the clerk of the peace: ibid., ss.30-32. All the mortgage borrowings were to be paid off within 10 years of completion of the new gaol and house of correction: ibid., s.35. 49 The 1827 Act, ss.26-29. In the event of default in payment of rates due, the appointed collector was empowered to apply for a warrant authorising the levying of distress on, and sale of, the liable person’s goods: ibid., s.26. Specific arrangements were set down for the payment of rates by tenants: ibid., ss.27, 28, and for apportioning liability for rates where a previous occupier moved away from the parish without making payment: ibid., s.29. 50 The 1827 Act, ss.37, 38. The justices were also able to remunerate the overseers, churchwardens and constables who were involved in helping to deliver the Act’s purposes.

65 (h) to require the justices (acting through general or quarter sessions) to make and display “rules, orders, and regulations” for the governance of the gaol and house of correction, and their prisoners51, and to ensure that quarterly returns were made by the gaolers and keepers of the persons in their charge, their offences and their “age, bodily state, and behaviour”;52 and

(i) to provide for the recovery of penalties imposed under the 1827 Act by distress on goods or committal to gaol, to provide for legal proceedings a time limit and ancillary arrangements, and to provide for appeal to county quarter sessions by persons “aggrieved” by steps taken under the Act.53

Status of the 1827 Act 11. The main purpose underpinning the 1827 Act was to authorise the construction of a new common gaol and a house of correction for the use of the town of Cambridge.

12. As indicated below, the old gaol was closed in or about 1829, the new gaol opened in that year, and was itself closed in 1878.

13. The 1827 Act made clear that the powers contained within it relating to operation of a gaol and of a house of correction were to expire once the ‘new’ facilities ceased to operate as such.54

14. Accordingly, the 1827 Act is now spent, and may be repealed in whole.

51 The 1827 Act, s.39. The rules were to cover, amongst other things: classification and management of prisoners, diet, clothing, monitoring, the enforcement of “cleanliness, temperance, and a decent and orderly behaviour”, so as to secure “a just and humane treatment” of the prisoners; the prevention of supply of commodities or liquor deemed improper by the authorities; restricting visitors who might seek to contravene the rules; and to lay down penalties for breach of the rules.The rules were not to “be contrary or repugnant to the laws of that part of Great Britain and Ireland called England” or to the 1827 Act: ibid. s.39. Prisoners under sentence of transportation were to be held separately: ibid., s.41. 52 The 1827 Act, s.40. 53 The 1827 Act, ss.44-55. The ancillary arrangements included those relating to witness attendance, service of notices, adequacy of form and the like. 54 The 1827 Act, s.3 (see above).

66 2 & 3 Vict. c.ix (1839) (Cambridge Gaol Act 1839) Background and purpose 15. By 1839, the town gaol in Cambridge, built pursuant to the 1827 Act powers, was complete. However, two issues had arisen which called for further enabling legislation.

16. First, in 1835 the town council had, by statute, acquired incorporated borough status. The borough justices had taken over responsibility for maintaining the town gaol from the county justices. This required some administrative adjustment.

17. Secondly, three secured loans remained outstanding. The municipal corporation was concerned that these should be re-secured, by bond, on the borough fund.

18. To this end, in 1839 the borough council obtained an Act55 designed to clarify certain aspects of the 1827 Act (relating to governance of the new gaol) which were “in many respects uncertain and undefined” and other aspects which had become “in other respects defective and insufficient for the purposes thereby intended”. This clarification was to be achieved by three routes: by repealing parts of the earlier Act, by reviving other provisions within it (by re-enactment), and by making amendments to the 1827 Act.56

19. The provisions of the (relatively short) 1839 Act were designed to achieve the following: (a) to repeal the provisions in the 1827 Act which empowered the justices to assess and then levy rates, but to preserve the justices’ powers for enforcing payment of rates already made, for responding to actions

55 2&3 Vict. c.ix (1839) (“the 1839 Act”), being “An Act to amend an Act of the Seventh and Eighth of King George the Fourth, for building a new Gaol for the Town of Cambridge, and for making further Provision for Payment of Creditors under the said Act.” The Act referred to here, is the 1827 Act. In its preamble the 1839 Act recited that the justices had fixed the assessment for the project at nearly £16,617. Almost £14,515 had been levied and received by way of rate. The total actually expended on the project was £14,187. Additionally, the justices had borrowed £8,000 (secured by mortgage on the rates), of which £4,500 had been repaid. The balance of £3,500 (plus interest accrued) was still owed to three named individuals.The gaol itself had been “long since completed” by the justices “according to the provisions of the said [1827] Act”: ibid., preamble. 56 The 1839 Act, preamble and s.1. All the provisions of the 1827 Act were expressed to be “in full force and effect, in such and the like manner in all respects, and to all intents and purposes, as if the same were repeated and re-enacted by this [1839] Act”, excepting those parts as were specifically “varied, altered, taken away, or repealed” by it: ibid., s.1. The Act was deemed not to detract from the “rights, liberties, immunities, exemptions, franchises, and privileges” of the university of Cambridge or any of its constituent colleges or halls: ibid., s.11.

67 challenging validity of a rate, and for remitting rates on the grounds of “poverty or distress”;57

(b) to provide for transfer of all moneys obtained under the 1827 Act powers from the justices’ treasurer to the borough treasurer “in aid of the borough fund”;58

(c) to recite, for the avoidance of doubt, the vesting in the borough justices of the statutory “powers of regulation” relating to the gaol (which was now designated the “gaol of the said borough of Cambridge” rather than simply the town gaol)59, and to require the justices of “assize, oyer and terminer, and gaol delivery” for the county to commit convicted offenders from the borough to the borough gaol to serve out their sentences of imprisonment or to await transportation or death;60

(d) to convert the security for the three debts and outstanding interest (incurred to facilitate building of the gaol) from mortgage on the gaol rates to bond under seal of the borough council;61 and

(e) to make certain mechanistic changes relating to costs and to rating.62

57 The 1839 Act, s.2. This section was not specific about parts or sections of the 1827 Act which were to be treated as repealed. In all probability, and in broad terms, the sections directly affected were sections 23 to 29 of that Act. 58 The 1839 Act, s.3. 59 The 1839 Act, s.4. The section was designed to eradicate doubts which had arisen in Cambridge as to whether the borough justices had properly acquired the same powers relating to gaol governance as were vested in the general or quarter sessions for the county. Hitherto it had been assumed that the powers vested in county quarter sessions extended also, as a result of the Municipal Corporations (England) Acts 1835 and 1837 [5 & 6 Will.4 c.76 (1835) and 1 & 2 Vict. c.78 (1837), both later repealed] to borough justices.The 1837 Act, ss.37, 38 had sought to provide that every borough council named in the schedules to the 1835 Act (which included Cambridge) should have the same powers relating to gaol building and regulation as justices in quarter sessions.These 1837 Act provisions had the effect of amending provisions in the 1835 Act, s.116. The 1839 Act, s.4 empowered the borough justices to hold their own quarter sessions for the purpose of regulating the gaol, subject to the proviso that any order involving expenditure had first to be confirmed and validated by the borough council. 60 The 1839 Act, s.10. Under the 1835 Act, s.114, in boroughs where borough quarter sessions were held, the relevant borough council was obliged to reimburse the county treasurer the costs of prosecution, punishment and conveyance of all offenders committed from the borough for trial at assize. Cambridge held its own quarter sessions and it “tend[ed] very much to the advantage and relief of the inhabitants of the said borough” that borough offenders be committed on conviction instead to the borough gaol: the 1839 Act, s.10. 61 The 1839 Act, s.6. Although the secured debts were for £1,000, £1,500 and £1,000 respectively (in favour of three named creditors), each new bond was only to provide security for up to £500 plus interest “and no more”: ibid. The bonds were to be repaid from the borough fund, with interest, at the rate of one per year (the sequence of discharge to be determined from the outset by lot): ibid., s.7. 62 The 1839 Act, s.5 repealed provisions in the 1827 Act (part of section 55) which allowed for the award of treble costs in certain legal actions under the 1827 Act. The 1839 Act, s.8 provided that the costs of

68 Status of the 1839 Act 20. The 1839 Act was simply an ancillary piece of legislation, designed to effect (and complete) transfer of powers relating to the town gaol from the county justices to the borough justices for Cambridge.

21. The whole structure of the short 1839 Act was linked to the powers and obligations laid down in the earlier 1827 Act.

22. Although the 1839 Act did not on its face contain any provision limiting its life, its purpose would have expired when the purpose behind the 1827 Act expired. As indicated above, the 1827 Act provided for the newly-constructed gaol to be designated a gaol for the town only whilst it was in use for that purpose. Once that use ceased, the designation and the on-going obligations would also have ceased.

23. As shown below, the Cambridge town (and later borough) gaol was constructed in 1829 and ceased to operate in 1878.

24. Accordingly, the 1839 Act is now spent, and may be repealed in whole.

Archive-based history 25. A new sessions house and a house of correction had been built on Lynn Road, in Ely, by 1821. The house of correction replaced a much older building where prison conditions were very poor. It was separate from the common gaol managed by the bishop of Ely (and now used as the Ely museum).

26. The sessions house comprised the main building, fronted with a columned portico, and two wings (one an infirmary, the other a chapel). The house of correction was sited behind the sessions house and comprised a governor’s house; two separate cell blocks - one for men and the other for women and small debtors; two work rooms, four day rooms and four airing yards.63

obtaining the 1839 Act, and those flowing from carrying-out the purposes of the 1827 Act, should be paid from the borough fund. The 1839 Act, s.9 made changes to the apportionment of rates to be borne by tenants and “occupiers at rack rent” when the borough council, from time to time, levied a “specific rate” to finance discharge of the issued bonds and to cover costs arising from operation of the 1827 and 1839 Acts: ibid. 63 See http://www.cambridgeshirehistory.com/cambridgeshire/TownsandVillages/Ely citing S.Lewis Topographical Gazetteer (1831).

69 27. The house of correction closed in 1878 following enactment of the Prisons Act 1877. The building was then used as an armoury for the local volunteers (consolidating an earlier part-use) until 1908. It has since been demolished.

28. The sessions house building is currently operating as Ely Magistrates Court under the auspices of HM Courts Service.64

29. In Cambridge, the old gaol was sited in St. Andrew’s Street, behind Hobson’s spinning house (which was a house of correction). The building was vacated around 1829 and replaced by a new gaol complex erected on the south side of Parker’s Piece.65 The debt for this new building was not paid off until 1847.

30. The new town gaol was closed in 1878 by the Home Secretary, and the site was sold to the borough council. The council demolished the building (disposing of the salvaged building materials) and let the land for a housing development (Queen Anne Terrace), which was completed around 1881. Today, the site is occupied by a multi-storey carpark and the YMCA.66

Extent 31. The 1820 Act applies locally only within the city of Ely in Cambridgeshire, in England.

32. The 1827 Act and the 1839 Act apply locally only within the city of Cambridge in Cambridgeshire, in England.

Consultation 33. The Home Office, HM Prison Service, the Department for Constitutional Affairs, HM Courts Service, Cambridgeshire County Council and Cambridge City Council have been consulted about this repeal proposal.

(32-195-452) LAW/005/002/06 01 February 2008

64 The obligation for maintenance and repair resides with HM Courts Service under the aegis of the Department for Constitutional Affairs: see Courts Act 2003, s.3 (effective 1 April 2005: SI 2005 No. 910). 65 In the previous year (1828) a drain had to be constructed across Parker’s Piece and Butt Green to relieve flooding in the foundations of the gaol. 66 See http://www.cambridgeshire.gov.uk/leisure/archives/holdings/m-p/prisons.htm

70 COUNTY GAOLS GROUP 3 - CHESHIRE ______Reference Extent of repeal or revocation ______28 Geo.3 c.82 (1788) The whole Act. (Chester Improvement Act)

47 Geo.3 Sess.2 c.vi (1807) The whole Act. (Chester Castle Gaol and other Buildings Act) ______28 Geo.3 c.82 (1788) (Chester Improvement Act 1788) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.67 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.68 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Cheshire (then known as the County Palatine of Chester), in 1784, the grand jury reported to the court of session and general gaol delivery for the county that the common gaol (located at Chester castle) was “insufficient, inconvenient, and in want of repair” and that, being a county gaol, responsibility for addressing the situation lay with the county’s inhabitants.69 The county justices, having considered the matter in general quarter sessions, decided that the existing gaol should be

67 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 68 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 69 Preamble to 28 Geo.3 c.82 (1788) (“the 1788 Act”), being “An Act for taking down and rebuilding the Gaol of the Castle of Chester, the Prothonotary’s Office, the Exchequer Record Rooms, and other Offices and Buildings adjoining or near to the said Gaol, and for making proper Yards and Conveniences thereto”. The short title of the Act, assigned by the Chronological Table of the Statutes, is the Chester: Improvement Act 1788.

71 demolished and rebuilt (with enlarged yards and accesses) either on its present site and land nearby land occupied by other buildings, or at “some other convenient situation”.70 This, and allied rebuilding, could not be effected without parliamentary authority.

3. To this end, the county justices promoted what was to become the 1788 Act. That Act authorised (in broad terms) the following steps: (a) the constituting of the county justices as commissioners charged with fulfilling the purposes of the 1788 Act;71

(b) the appointment (and dismissal) by the commissioners of officers, including a clerk and treasurer and a surveyor or surveyors, who were to be accountable for all books and papers in their possession;72

(d) the taking down by the commissioners and rebuilding of the old gaol (in whole or in part, including providing or extending, as appropriate, the “yards, outlets, and avenues thereof”), such work to be determined by the commissioners and carried out “at the publick expence of the inhabitants of the said county of Chester”;74

70 The 1788 Act, preamble. In addition to rebuilding the gaol with a cell complement designed to house prisoners adequately (including separating categories of prisoners), the justices decided that it might be necessary to demolish and rebuild the prothonotary’s office (which housed the court of session’s records), the shire hall, the exchequer court and record rooms, and other adjoining buildings. 71 The 1788 Act, s.1. Sections 2-4 of the Act provided for the regulation of commissioners’ meetings (adjournments, public notice, election of chairman, casting vote, keeping of minutes, and so forth), disqualification through personal pecuniary interest, and for appointment of sub-committees with executive power to supervise the works. 72 The 1788 Act, ss.5, 6. Although the officers were to be remunerated, they were also required to provide security for good conduct in office (and to forfeit moneys in the event of default, such as having a personal interest in any works contract let). Orders for removal had to be confirmed by a separate meeting of commissioners.The county justices were required to appoint an audit committee of commissioners to examine and certify the officers’ accounts. 73 The 1788 Act, s.7. 74 The 1788 Act, ss.8, 9. The commissioners were required to determine in a special meeting whether it was more appropriate to rebuild the gaol on the existing or on an alternative site. The alternative site (if chosen) was to be located within the county, or within the city of Chester, either near to the existing gaol in the castle yard (or within “the precincts or liberties of the castle of Chester”) or within the nearby “township or hamlet of Gloverstone” or on land called “The Nuns Gardens” within the city in the parish of St. Mary on the Hill, but nowhere else within the city: ibid. If the gaol were to be built on The Nuns Gardens, no part of it was to constructed within 40 feet of the city walls: ibid., s.8. In order to secure “a free circulation of pure and wholesome air” and to prevent “the gaol fever, and other malignant diseases”, the Act stipulated that there was to be a development-free zone around the entire gaol extending for 15 yards from the boundary wall. Within that zone there was to be no building or piling of materials or keeping of swine or generation of “offensive smells”, or other nuisances, or the growing of

72 (e) at public expense, the demolition and rebuilding elsewhere by the commissioners (if thought appropriate to facilitate the gaol-building project) of the prothonotary’s office, the shire hall, the exchequer court and record rooms, and other buildings adjoining the existing gaol;75

(f) the appropriation of part of the castle yard and grounds for the gaol project (on condition that the commissioners provided and maintained an alternative carriage road, to be laid from the existing castle gateway to a new gate accessing the inner ward; that the appropriation occur within two years; and that the new gaol be built within ten years);76

(g) in the event that further land be required for replacing the gaol, prothonotary’s office, shire hall, exchequer court and record rooms (and other buildings), the purchase by the commissioners of such land and payment for it (such land also to be transferred to, and held in trust by, the county’s custos rotulorum);77

(h) providing mechanisms for acquisition and transfer of land where the owners were either legally incapacitated, or were unwilling or unable

trees (breach of which prohibition could lead to enforcement action by the county justices and imposition of a penalty). Demolition or removal by the commissioners of pre-existing buildings or structures would give rise to a liability to compensate: ibid., s.26. The gaol itself was to be configured internally so that prisoners were segregated by gender, by misdemeanour and by remand or conviction status, and so that there was provided a chapel, an infirmary and a reception and cleansing unit (“a lazarette”) (the latter two in accordance with the statute 14 Geo.3 c.59 (1774)), and accommodation for bathing, working and for housing the gaoler, his family and his assistants: ibid., s.29. 75 The 1788 Act, s.10. The various civic buildings (if demolished) were to be repositioned near to their original location or “in some other convenient situation or situations in or near to the said castle of Chester”. Prior public notice had to be given of the special meeting to consider this step: ibid. 76 The 1788 Act, ss.11, 12. The Act recited the dimensions of the parcel of land so affected (using, as a reference point, the portico affixed to the county hall). A development-free zone was designated between the new carriageway and the gaol buildings.The affected castle land was in the ownership of the king who had signified his assent to the prospective appropriation (and which assent was recited in the Act): ibid., s.11. Once appropriated, the land parcel was to be vested absolutely in the custos rotulorum of the county, to be held in trust by him (acting as a corporation sole) and his successors for the 1788 Act’s purposes.The stipulated time limits for appropriation and completion of building ran from 1st August 1788. Failure to comply meant that the authority to appropriate would become “void and of no effect”: ibid., s.12. Presumably, if the gaol were not built to time, the appropriated land (and anything on it) would have reverted to the king. If other lands (in or near the The Nuns Gardens) belonging to the king were subsequently required for the building project, the Lords Commissioners of His Majesty’s Treasury were empowered to agree, after survey, a valuation and a sale of such lands to the gaol commissioners (the purchase moneys to be applied in accordance with the Crown Land revenues, etc. Act 1786 (26 Geo.3 c.87)): ibid., s.23. 77 The 1788 Act, s.13. Any lands so acquired and situated within the city or liberties of Chester were deemed to be part of the county of Chester: ibid.

73 to negotiate on compensation, or were unable for some reason to complete the sale to the commissioners;78

(i) the demolition by the commissioners of the constable’s “house or apartments”, and the extinguishment of his occupational right, but providing him with alternative accommodation or “reasonable satisfaction or compensation in lieu thereof”, so that he could continue his job as gaoler or keeper for the replacement gaol, and exercise the rights in his office “to the custody of the prisoners, in the gaol of the castle of Chester, and to the salary, fees, and perquisites appertaining to the said office”;79

(j) the regulation by the county justices of the gaoler’s and keeper’s fees (and the supplementing of those fees by “such salaries and allowances” as “shall appear reasonable”, subject to proper compliance by the recipients with “the bye-laws, rules and orders” of the gaol);80

(k) the extracting, without charge, of “soil, clay, sand, or gravel” from “any common or waste land, river, or brook” for the purposes of the 1788 Act, and the sale of any such materials found surplus to requirements;81

78 The 1788 Act, ss.14-20. These provisions covered: legal incapacity, arrangements for juries to ascertain and determine land valuations, payment and investment of purchase moneys, and taking of possession and title by the custos rotulorum. 79 The 1788 Act, s.21. The commissioners were also required to provide for the constable’s deputy. Disagreements over compensation for the constable were to be settled by a county jury in the same way that other non-agreed land compensation was to be determined: ibid. 80 The 1788 Act, s.22. Historically the constable and his deputy had received fees from debtors and other prisoners, and “incidental charges” from the county rate. The fees were regulated by a national 1758 Act (32 Geo.2 c.28) - cited in section 22 - which sought to provide relief for imprisoned debtors.However, the levying of such sums had the potential to “become oppressive and burthensome to poor prisoners” and to give rise to “frequent abuse” of the county rate: ibid. The solution was to set and exhibit a table of fees (to be reviewed by the justices in quarter sessions) and to award a supplemental salary as “recompence for any diminution of emolument in the office of gaoler or keeper of the said intended new gaol”: ibid. 81 The 1788 Act, s.24. The commissioners were also entitled to authorise their workmen to enter privately-owned land and to take away stone and other building materials, subject to their paying compensation, and to use any wharf or access to the River Dee “for the benefit of water carriage”. Where works were undertaken on publicly accessible lands, the commissioners were required to fence or backfill any pits dug for public and animal safety: ibid. All building materials assembled for the project were to be vested in the commissioners, and the commissioners were empowered to bring legal proceedings for theft or interference, and for wilful obstruction in their work or for malicious damage to buildings: ibid., ss.30, 31.

74 (l) the extraction of water from private lands by entering, surveying, cutting watercourses and constructing reservoirs, pumps and the like, for the purpose of supplying fresh water to the gaol “constantly and uninterruptedly”;82

(m) the fitting-out of the new gaol, and of the rebuilt prothonotary’s office, shire hall, exchequer court and record rooms, and other buildings, so that they would be available for operational use;83

(n) the provision of temporary accommodation within the city or the county for the gaol, and for other courts and offices, whilst demolition and rebuilding was in progress;84

(o) the designation of the new gaol as the common gaol for the county (and the replacement shire hall and exchequer court as facilities for the “county palatine of Chester”);85

(p) the raising of moneys by the commissioners for the building project both by precepting on the county rate (in accordance with 12 Geo.2 c.29 (1738) relating to county rates) levied on towns, parishes and the

82 The 1788 Act, s.25. The authority extended to the commissioners’ workmen entering lands subsequently, in order to clean and repair the installations (which, by then, would have vested in, and be held in trust by, the county’s custos rotulorum). Any unauthorised interference by others with the water installations was made an offence. The Act contained a specific proviso in section 25 that none of its provisions was to detract from any contractual liability on the part of the city of Chester waterworks company to supply water to the gaol (whether at the castle or at its new location) and to other publicly- maintained buildings, although the cost of all new piping would be borne by the inhabitants of the county. 83 The 1788 Act, s.27. The commissioners were authorised to employ workmen and contractors for both this task and in order “to pull down the houses or buildings so to be purchased, taken down, or removed as aforesaid, and to sell or dispose of the materials thereof”: ibid. The commissioners were also authorised to include, in any contract, provision for forfeiture of penalties and payment of damages in the event of contractor-default: ibid., s.28. 84 The 1788 Act, s.32. The temporary gaol facility would be deemed to be the common gaol for the county, pending relocation. The commissioners were empowered to fit-out for temporary use, at the expense of the county’s inhabitants, the various buildings occupied for county purposes. 85 The 1788 Act, s.33. All existing national laws which related to gaols were to apply to the new gaol as if they had been applied specifically to it: ibid., s.51. Once the gaol was complete, prisoners were to be transferred there from their temporary accommodation “with all convenient speed”: ibid. The gaol, together with the other municipal buildings (prothonotary’s office, shire hall, exchequer court and record rooms, and ancillary offices) were all to be kept in repair, and insured, “at the publick expense of the inhabitants of the said county”, but the various buildings were to be exempt from house and window tax, and the local rates on the lands were to be capped to the level applying as at their date of acquisition by the commissioners: ibid., s.35. As an alternative to the year-on-year payment of rates, land tax and lamp duty, the commissioners were authorised to pay a single lump sum to the relevant churchwardens, overseers of the poor, constables and tax collectors, equivalent to a maximum of 35 years purchase, subject to the arrangement being sanctioned by general quarter sessions (which lump sum would then be utilised “for the greatest and most equal benefit of the inhabitants” and the land owners and occupiers within the relevant parish or township): ibid., s.36.

75 like within the county,86 and by borrowing sums (to a maximum of £100 per loan advance) mortgaged on the county rate.87 The moneys so raised were to be used, first, for discharging the costs incurred in obtaining the 1788 Act, then for paying interest on the sums borrowed, and finally for the purposes of the legislation;88

(q) the regulation of the gaol and its occupants through the making of, and adherence to, byelaws which would govern the segregation of prisoners by type, the enforcement of “cleanliness, temperance, and a decent and orderly behaviour” amongst prisoners, and the securing for the prisoners “a just and humane treatment of them by the gaoler and his servants”;89

(r) the provision of facilities for prisoners of all categories to undertake work (to prevent idleness and debauchery), including supplying materials and supervision, the cost of which was to be borne by the county rates;90

(s) the appointment of two or more justices as gaol visitors to inspect the gaol at regular intervals so as to prevent “abuses” and, more particularly, to “examine into the state of the buildings, the behaviour and conduct of the respective officers, and the treatment and condition of the prisoners, the amount of their earnings, and the expences attending the said gaol”;91

86 The 1788 Act, s.37. 87 The 1788 Act, s.38. Each mortgage, which was repayable with interest on the principal sum, was capable of being assigned by its owner (without incurring additional stamp duty liability). Mortgages and assignments were to be registered with the treasurer to the commissioners.The form of mortgage was prescribed in the schedule to the 1788 Act: ibid. Yearly interest was to be paid to lenders out of the county rate fund by the county treasurer; and, on completion of the various new-build operations, the county justices were to repay to the lenders the principal sums borrowed, following a sequence to be established by lot, so that within 14 years the entirety of the loan would be discharged: ibid., ss.39, 40. 88 The 1788 Act, s.41. In the event that any balance remained, that amount should be applied and used “as part of the publick stock of the said county”: ibid. 89 The 1788 Act, s.42. The byelaws were to be made in accordance with the rubric set down by 32 Geo.2 c. 28 (1758). 90 The 1788 Act, ss.43, 44. A basic power was already provided in 18&19 Cha.2 c.9 (1666) relating to the relief of poor prisoners, but that legislation ring-fenced the rating of each parish (at 6d. per week) and the category of prisoner. The 1788 Act sought and obtained power to extend both the rating sum (without limit) and the categories (in essence, to all prisoners held in the new gaol). The county justices were authorised to employ a salaried taskmaster and ancillary officers in the gaol, whose remuneration would be incentive-based. They would be required to give security for their good conduct in office, and would be subject to dismissal or financial penalty for misbehaviour: ibid., s.44. 91 The 1788 Act, s.45. The visiting justices were required to report their findings to the general quarter sessions, which sessions were then under an obligation to rectify any abuses found. The powers vested

76 (t) the making of provision for the conduct of legal proceedings (including for the improper execution of warrants) where there was overlapping jurisdiction between city and county;92 and

(u) the providing for appeals to general quarter sessions by persons “aggrieved by any thing done in pursuance” of the 1788 Act, and for ancillary legal matters (such as the levying of distress to recoup fines and penalties, and the setting of time limits for proceedings).93

Status of the 1788 Act 4. The main purpose behind promoting the 1788 Act was to obtain authority to rebuild the existing county gaol. The 1788 Act also allowed for demolition and rebuilding of other civic facilities, such as the exchequer court, the shire hall and the office of the prothonotary. However, the operational detail in the Act focussed principally on the gaol.

5. The Act appears to have stood on its own. Although it imported, and drew upon, other provisions in national legislation (for example, as to the making of gaol byelaws and the regulation of gaol fees), the Act did not refer to, or rely on, earlier local legislation.

6. A very small portion of the 1788 Act has already been repealed (by the 1807 Act, s. 2: see below).

7. As indicated later in this note, the historic data shows that the old gaol in the castle was decommissioned around 1792 when its function was transferred to the new gaol sited in another part of the castle precinct. That later gaol eventually closed in 1884.

in the appointed visiting justices were without prejudice to the general power of justices in their own right to visit and report on sub-standard conditions: ibid. 92 The 1788 Act, ss.46-50. For the avoidance of future doubt, the county justices were specifically empowered for a period of 7 years to act in their official capacity within the bounds of the city of Chester, notwithstanding that the city was also a county in its own right: ibid., s.46. The clerk of the peace to the county and the county treasurer were each permitted to maintain offices within the city, and to act officially, “in like manner as they or any of them could or might do in case they respectively resided within the said county of Chester”, notwithstanding any other legal provision to the contrary: ibid., s.50. 93 The 1788 Act, ss.52-57. All legal proceedings were to be initiated in the county of Chester within 6 months of accrual of the cause of action: ibid., s.57.

77 8. The exchequer court was abolished in 1830, when its functions were transferred to the mainstream courts.94 The office of prothonotary was abolished in 1837.95 The shire hall building ceased to function in a civic governance capacity by the late 1950s and it was then used to house the law courts (which use continues today).

9. The powers contained in the 1788 Act have become spent, and the Act may now be repealed.

47 Geo.3 Sess.2 c.vi (1807) (Chester Castle Gaol and other Buildings Act 1807) Background and purpose 10. The 1788 Act had imposed on the county gaol commissioners time limits for the completion of two phases: (a) the appropriation of certain lands (before 1st August 1790), and (b) the finalising of the building project (by 1st August 1798).96

11. Although the necessary lands were acquired within time, and the gaol and other named buildings demolished, by 1807 the rebuilding works were not complete, and the commissioners required additional powers both to protect, and to finish, the project. To this end, an Act was promoted - and passed in July 1807 - to amend the 1788 Act and to provide various supplemental powers.97

12. The commissioners had commenced the rebuilding works within the castle precincts on the site of the old gaol, and had acquired various parcels of land.98 However, various matters remained outstanding: (a) the building works were not yet completed; and

(b) the castle yard needed extending, and other buildings and walls needed to be constructed, so that “a free circulation of air to the said gaol” could be secured, and “proper avenues and outlets” provided.

94 The county palatine court of exchequer was abolished and replaced by the Law Terms Act 1830 (11 Geo.4 & 1 Will.4 c.70), ss.8, 9 and 39. (The 1830 Act was itself later repealed by the Statute Law (Repeals) Act 1986, s.1 and sch 1). 95 Abolished by the Superior Courts (Officers) Act 1837 (7 Will. 4 & 1 Vict. c.30). 96 The 1788 Act, ss.10, 12 (see discussion above). 97 The Act was 47 Geo.3 Sess.2 c.vi (1807) (“the 1807 Act”), being “An Act for amending and enlarging the Powers of an Act, passed in the Twenty-eighth Year of His present Majesty, for taking down and rebuilding the Gaol of the Castle of Chester, the Prothonotary’s Office, the Exchequer Record Rooms, and other Offices and Buildings adjoining or near to the said Gaol”. 98 Preamble to the 1807 Act.

78 13. In order to proceed further, the appointed commissioners needed specific parliamentary authorisation to undertake the following: (a) to demolish and re-site within the castle the garrison’s existing “prevost, barracks, and guard room”, which facilities were no longer fit for purpose;

(b) to sell (for which there was no explicit power) some “small angles and parcels of land” which had previously been acquired - as part of larger acquisitions - but which had proved surplus to requirements; and

(c) to make early repayment of moneys borrowed on mortgage (using the surplus on the county rate), and to increase the rate of interest payable on certain existing loans.99

14. The 1807 Act sought to rectify these deficiencies by providing additional powers to the commissioners and to the custos rotulorum. The Act’s purpose was (in broad terms): (a) to confirm retrospectively the appropriation by the commissioners of parts of the castle grounds (to be held in trust by the custos rotulorum), notwithstanding the fact that “the building of the said new gaol and other offices by the said [1788] Act authorized to be erected, hath not been completed within the time prescribed by the said Act for that purpose”;100

(b) to repeal provisions within the 1788 Act which precluded the charging of additional stamp duty on the transfer or assignment of mortgages or securities;101

(c) to ensure a free circulation of air to the gaol by prohibiting construction of any building (excepting a boundary wall or gateway) within the north-west part of the castle yard;102

99 The 1807 Act, preamble. Under the 1788 Act, mortgages could only be discharged once the buildings had been completed and the procedure for phased redemption had been followed; and interest had been fixed at a rate of 4.5% p.a., whereas by 1807 the prevailing rate was 5% p.a. 100 The 1807 Act, s.1. 101 The 1807 Act, s.2. The provisions in the 1788 Act providing freedom from stamp duty appear to be those in section 38 of that Act. That section was not, however, repealed in whole by the 1807 Act because it dealt with other aspects of raising moneys on mortgage.

79 (d) to empower the custos rotulorum to sell lands acquired and held in trust when adjudged surplus to requirements;103

(e) to authorise the commissioners (i) to discharge all mortgages at any time they thought fit so that they would be paid off within 14 years of completion of the various works, notwithstanding the fact that construction of the project buildings was incomplete or that repayment did not adhere to the 1788 Act rubric (detailing the drawing of lots to determine the sequence of repayment),104 and (ii) on undischarged mortgages to increase the rate of interest payable from 4.5% p.a. to 5% p.a.;105

(f) to make provision for the adjourning or reviving of commissioners’ meetings by their clerk where the meetings started or became inquorate;106 and

(g) to make provision, on the acquisition of land by the commissioners (using the powers in the 1788 Act), for the transferring to the commissioners of good title where the vendor is either unable (for example, through legal disability or absence) or unwilling to execute the conveyance, and for the payment of the purchase moneys into the Bank of England.107

Status of the 1807 Act 15. The 1807 Act was directly linked in its purpose and operation to its predecessor Act of 1788. It was designed to plug gaps in the earlier legislation and to

102 The 1807 Act, s.3. 103 The 1807 Act, s.4. Sale was only to take place after resolution of the commissioners, and was to achieve “the best price or value in money” as could be obtained. The proceeds of sale were to be applied towards the 1788 Act’s purposes: ibid. Once issued, a treasurer’s receipt for moneys paid was to act as a “valid and effectual” discharge to the purchaser who would not be accountable for future handling of those moneys: ibid., s.5. 104 The 1807 Act, s.6. 105 The 1807 Act, s.7. The mortgages were to remain charged against the county rates and against any other funds available to the county justices for public purposes (including those relating to repair of public bridges and maintenance of the county highways): ibid., s.8. 106 The 1807 Act, s.9. This provision has the effect of amending or supplementing (but not repealing) section 2 of the 1788 Act which laid down the rubric for commissioners’ meetings. 107 The 1807 Act, ss.10-15. There was a rebuttable presumption that the person in possession of the land at the time of purchase was the lawful owner who could make out good title: ibid., s.14. The Act set out a mechanism (akin to that in other county gaol Acts of the period) whereby purchase moneys would be paid into the Bank of England (into the account of the Accountant General of the High Court of Chancery) to be invested or applied by order of the court or - in the case of lesser sums - by order of

80 extend the life of the 1788 Act’s appropriation powers, which had expired by August 1798. Without this additional legislation the gaol project would have foundered.

16. The rebuilt castle gaol closed in 1884, and was subsequently demolished.

17. The powers contained in the 1807 Act have become spent, and the Act may now be repealed.

Archive-based history 18. In 1783 the prison reformer John Howard visited Chester and reported on the condition of the county gaol housed in the medieval city castle (which he found severely wanting, especially as to the holding of prisoners in an enclosed and airless yard).

19. Following a competition to design a new gaol (won by Thomas Harrison) work started in or shortly after 1785. Although the inner bailey of the former castle was retained, the outer bailey and medieval shire hall were demolished and the stones were used in rebuilding the gaol, shire hall, courts, armoury blocks and barracks. Building of the gaol was completed by around 1792, although construction of the whole complex (including a new doric-columned gateway) was not completed until 1822.108 The new gaol was designed on the basis of delivering security, separation and ventilation, and debtors were housed apart from felons.

20. Contemporaneous evidence shows that the rebuilt gaol was functioning in 1843 and in 1861.109 It appears to have continued in operation until it was

appropriate trustees. By section 15 the court was given power to award the reimbursement of reasonable expenses where alternative lands had to be purchased for holding in trust. 108 See A Virtual Stroll Around the Walls of Chester: 11. Chester Castle at: www.bwpics.co.uk/castle.html, and www.bwpics.co.uk/castle2.html 109 See www.bopcris.ac.uk/cgi-bin/displayrec.pl?searchtext=chester&record=/bopall/ref6603.html (and ref6604.html) for Report of the Inspector of Prisons for the Northern District, on an inquiry into the Treatment of Prisoners in the Knutsford House of Correction (1843) Sessional paper 126, vol. xliii, which includes a quarterly report from the visiting justices of the county gaol at Chester castle; and the 1861 Census, referring to the district county gaol at Chester castle, at http://content.ancestry.co.uk/Browse/list.aspx?dbid=8767&path=Cheshire.Chester+Castle

81 decommissioned for the holding of civil prisoners in or about 1884110, and the main part was then demolished by 1902.111

21. The bulk of the gaol site was eventually redeveloped for the new County Hall, built between 1938 and 1957. Only the gaoler’s house, chapel and one row of cells presently survive. They are used by the county council for document storage. None of the buildings are used for prison purposes. The old shire hall (designed by Harrison) is used today as a courtroom within the Chester Crown Court complex.112 Its municipal function has ceased.

22. No prison within the remit of HM Prison Service operates today within the city of Chester.

Extent 23. Both the 1788 Act and the 1807 Act apply locally only within the county of Cheshire, in England.

Consultation 24. The Home Office, HM Prison Service, HM Courts Service, the Department for Constitutional Affairs and Cheshire County Council have been consulted about this proposal.

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110 See www.cheshirepast.net/georgevic_files/vicframes1_files/vic.htm, which cites 1872 on the authority of Hemingway History of Chester, i.244 and Rep. Com. Mun. Corp. p.2622, but compare www.angelfire.com/ok3/chester/imagedir/onecstle.htm, which refers to the county gaol within the castle closing in 1884. The county archivist (Ms Liz Green) suggests to us that 1884 is the proper date. A small military prison continued operating within the castle until 1893. 111 See www.angelfire.com/ok3/chester/imagedir/milldee.htm on the Dee Mills and the old Dee bridge. The gaol buildings had been purchased by Cheshire County Council in 1894. 112 The current obligation of maintenance and repair resides with HM Courts Service under the auspices of the Department for Constitutional Affairs: see Courts Act 2003, s.3 (effective 1 April 2005: SI 2005 No. 910).

82 COUNTY GAOLS GROUP 4 - CUMBRIA ______Reference Extent of repeal or revocation ______17 Geo.3 c.54 (1776) The whole Act. (Westmorland Gaol, etc Act) ______

17 Geo.3 c.54 (1776) (Westmorland Gaol, etc Act 1776) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout the country) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.113 That power, however, fell short of outright control. In the latter half of the 18th century the power also of gaol management started to be ceded.114 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Westmorland, having found the county gaol and shire hall “too small, and in many other respects inconvenient”, the county justices had purchased a site on long lease “in a more advantageous situation” and had built a new gaol on part of it (and had commenced building a replacement shire hall on the remainder).115 The cost was offset in part by selling the site of the old gaol and salvaged building materials, but there remained a shortfall.

3. In order to remedy this position the justices sought, and obtained, a local Act in 1776 which was designed retrospectively to authorise both the land sale and the

113 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 114 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 115 Preamble to 17 Geo.3 c.54 (1776) (“the 1776 Act”), being “An Act for defraying the Expence of building a new Gaol and Shire-hall for the County of Westmorland”. The former county of Westmorland was, in the 1974 local government reorganisation, subsumed into the newly constituted county of Cumbria.

83 purchase of an alternative site, and to sanction the expenditure associated with the new gaol.

4. In order to fulfil its purpose, the 1776 Act authorised a limited number of steps: (a) ratification of the purchase of the site for the new gaol and shire hall (at a location unspecified, but presumably within the administrative county);116

(b) sale of the site and materials relating to the old gaol;117

(d) finishing the construction of the new shire hall by 1 June 1778;119 and

(e) defraying from the general county rate the costs of land acquisition, completing the building works (for gaol and shire hall), and securing the passing of the 1776 Act.120

Status of the 1776 Act 5. The 1776 Act is relatively short. When enacted it seemed to stand alone, and it does not purport to rely on, or supplement, other statutory provisions. None are recited in it.

6. The purpose of the Act was, in part, to secure retrospective parliamentary sanction, and in part to secure prospective authority to complete the building task (which had to be undertaken within a defined timeframe).

116 The 1776 Act, s.1. (The printed version of the 1776 Act carries only side headings and not section numbers.The section numbers used in this note have simply been assigned informally to aid navigation through the Act’s text). 117 The 1776 Act, s.1. The Act spoke, seemingly erroneously, of “also the purchase of the scite and materials of the said old gaol”, rather than of its sale. 118 The 1776 Act, s.1. Should the specified sale (which was to take place on or after 1 June 1778) fall through, the justices were then “authorised to sell or otherwise dispose of the same for the benefit of the county, in such manner as they shall think fit”: ibid. 119 The 1776 Act, s.2. The justices were not simply authorised to complete the building but were “hereby required to cause the said new Shire-hall to be finished” by the given date: ibid. Whilst building was in train, the old shire hall was to continue in operation. The new gaol had already been completed and, presumably, was capable of being commissioned.

84 7. For the reasons explained below, the gaol had become available for occupation by 1771, and eventually was decommissioned in 1879. By the passing of the 1776 Act, the new gaol already existed. By 1778, the whole of the 1776 Act had become spent, and it may now be repealed.

Archive-based history 8. The Westmorland county gaol was erected in Appleby (alongside the courthouse) in 1770/71. At that time Appleby (now called Appleby-in-Westmorland) was the administrative centre for the former county. The adjoining shire hall was completed between 1776 and 1778. The new gaol replaced the old gaol facilities, then located on two sites - in the town’s castle and in an old chapel located at the western end of the river bridge.

9. The 1771 gaol was built in an area of the town known as The Sands (situated on the east side of the River Eden).121 It was extended in the 1820s and the 1870s. It ceased to function (and became redundant) by late 1878. Most of the buildings were demolished in 1893 (with the remainder disappearing in 1971). The site is presently occupied by the town’s police station.122

10. In 1837 it was recorded that the Appleby county gaol and house of correction in Westmorland were then operational institutions.123 The house of correction was a separate building erected around 1820 and demolished in or about 1893, quite possibly at the time of demolition of the main gaol.

11. No operational prison, under the aegis of HM Prison Service, exists today in Appleby. Cumbria is served by HMP Haverigg.

Extent 12. The 1776 Act applies locally only within the former county of Westmorland (now Cumbria) in England.

120 The 1776 Act, s.3. 121 See Mannix & Co., History, Topography and Directory of Westmorland (1851). The gaol buildings were described (at pp. 1-2) as “commodious buildings encompassed by a strong wall”, and incorporated a chapel and governor’s residence. 122 We are grateful to the County Archivist at the Cumbria Record Office for providing us with this information. 123 Second Report of the Inspectors appointed under the provisions of the [1835] Act 5&6 Will.4 c.38, To visit the Different Prisons of Great Britain (1837), Part II, pp.91-96.

85 Consultation 13. The Home Office, HM Prison Service and Cumbria County Council have been consulted about this repeal proposal.

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86 COUNTY GAOLS GROUP 5 - DEVON ______Reference Extent of repeal or revocation ______26 Geo.2 c.57 (1753) The whole Act. (Debtors’ Prison, Devonshire Act)

27 Geo.3 c.59 (1787) The whole Act. (Devon Gaol Act)

50 Geo.3 c.lxxxv (1810) The whole Act. (Devon County Gaol Act)

58 Geo.3 c.li (1818) The whole Act. (Exeter Gaol Act)

Exeter Gaol Act 1863 The whole Act. (26 & 27 Vict. c.lxxiii)

______26 Geo.2 c.57 (1753) (Debtors’ Prison, Devonshire Act 1753) Background and purpose 1. Until the very end of the 17th century, and into the early 18th, the power to build and manage county gaols was vested in the local sheriffs. It was only in 1698 that the local justices started to secure limited control of the county gaols124, a control which extended to building new facilities and repairing existing stock, but which fell short of the power to manage gaols and their inmates.

2. Many gaols at this time had fallen into disrepair (or were otherwise inadequate for their purpose) and their condition produced a significant health hazard.

3. In Devon the local justices sought, and in 1753 obtained, an Act of Parliament125 which was designed to supplement the public general Act powers contained in the 1698 Act. The justices petitioned on the basis that the present “gaol

124 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) (“the 1698 Act”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719). (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), and repealed by 4 Geo.4 c.63 (in 1823). Rebuilding of gaols was also provided for in the 1784 Act. 125 26 Geo.2 c.57 (1753) (“the 1753 Act”), being “An Act for raising a Sum of Money by a County Rate, for purchasing a proper Prison for Debtors in the County of Devon”.

87 for the confinement of debtors” in the county (some of whom had “debts to a great amount”) was unsuitable: it was no more than a leased house, situated in the parish of St. Thomas the Apostle on the outskirts of Exeter, which the county sheriff “hath for many years last past been obliged to hire”; it was “attended with constant and considerable expense”; it was “a great hazard” to the sheriff; and it was “inconvenient to the said county in general”.126 If the property were to be vested entirely in the sheriff (and was made subject “to his management, governance, and direction”), it “might be made fit and rendered commodious” for its purpose.127

4. The house and adjoining land was owned by the Custos and College of Vicars Choral attached to Exeter Cathedral, and had been let on an annual rental to the then keeper of the gaol for his lifetime (and on his death the property would revert to the Vicars Choral). The Vicars Choral and the gaol keeper were each prepared to sell their respective interests in the premises for capital sums, and the dispositions were approved by the Dean, Cathedral Chapter and Lord Bishop of Exeter. However, as the Act recited, without specific authority “neither such alienation can be effectually made, nor the consideration so stipulated or proposed to be given for the same, can be properly raised and secured”.128

5. The 1753 Act, in order to fulfil its purpose, authorised (in broad terms) the following steps: (a) the transfer, from the occupying gaol keeper, of the “messuage or tenement” used as “a gaol, ward, or prison, for debtors in the County of Devon” (and its adjoining grounds), and freed from all rights pertaining to the Vicars Choral, to various named trustees.129 The transfer would be effected subject to payment of stipulated sums of money;130

(b) the continuing use of the St. Thomas premises as a “common gaol, prison, or place of confinement for debtors”;131

126 Preamble to the 1753 Act. 127 The 1753 Act, preamble. 128 The 1753 Act, preamble. 129 The 1753 Act, ss.1, 2. The 1753 Act also provided a mechanism for the appointment of replacement trustees on the death of the original members: ibid., s.15. (The printed version of the 1753 Act carries only side headings and not section numbers.The section numbers used in this note have simply been assigned informally to aid navigation through the Act’s text). 130 The 1753 Act, ss.2, 3. 131 The 1753 Act, s.4.

88 (c) insofar as the 1753 Act failed to provide specific powers, the gaol to be repaired and maintained in accordance with “such ways, means, and methods” relating to the raising and use of “monies for building and repairing county gaols” as had previously been prescribed by the 1698 Act;132

(d) the “gaolers, keepers and officers employed” to be placed under the management and direction of the sheriff for the county (and to operate in accordance with same regime as applied to officials employed in “other common gaols and prisons in other counties, within this Kingdom”);133

(e) the county justices, meeting in quarter sessions, to be empowered to assess and raise moneys by rate to cover the purchase price of the premises, the annuity to the Vicars Choral and the promotion of the 1753 Act (which rate would be made in the manner which usually applied for repairs to the county “bridewell”, and which should not exceed 6d. in the £ based on annual property values within the county);134

(f) the mechanism for recovery by the Vicars Choral of any default in payment of the stipulated annuity (by court action against the county treasurer);135

(g) the mechanism by which the county justices should assess and levy (for the Act’s purposes) the rating precept on the various “hundreds, divisions, parishes, towns, hamlets, liberties, precincts, or places within the said county”, and the mechanisms for collection, enforcement and accounting of the revenues in accordance with the rubric of the 1753 Act and earlier legislation;136

(h) the raising of moneys to ensure that the buildings be kept “in good and sufficient repair” so that the gaol be rendered strengthened and

132 The 1753 Act, s.5. The 1698 Act is referred to above. 133 The 1753 Act, s.6. 134 The 1753 Act, ss.7-9. 135 The 1753 Act, s.10.

89 “secure for the safe custody of all such debtors as shall be thereto committed” (which moneys would be raised in the same manner as the principal moneys);137 and

(i) provision of a right of appeal by persons “aggrieved” (through assessment or overcharge) to the county justices sitting at quarter sessions for such order as “shall seem meet” to the justices, and for a time limit for any legal proceedings under the Act.138

Status of the 1753 Act 6. As is clear on the face of the 1753 Act, it was designed to supplement the general powers contained in the 1698 legislation. Its principal purpose was to authorise the raising and expenditure of moneys but, unlike other gaol Acts of this era, it was needed mainly to acquire and enhance an existing property rather than to undertake wholesale relocation or reconstruction.

7. The Act’s purpose was confined to facilitating provision of a gaol for civil debtors, rather than for those pending trial or serving sentences for criminal offences.

8. For the reasons explained below at paragraph 46, because the debtors gaol located at Exeter St. Thomas was decommissioned in 1853, and the buildings later demolished, the whole of the 1753 Act became spent and may now be repealed.

27 Geo.3 c.59 (1787) (Devon Gaol Act 1787) Background and purpose 9. By the latter half of the 18th century the impetus for gaol reform across the country was being felt in many separate counties, although still with varying degrees of success. The 1698 Act (see above) had been followed by Acts in 1758139 (which provided for the making of rules and orders for the improved management of gaols in counties and towns across England), in 1774140 (relating to the health of prisoners,

136 The 1753 Act, ss.11-13. The earlier legislation was identified as the 1698 Act, as made perpetual by the 1719 Act (see above) and “by any other Act whatsoever”. 137 The 1753 Act, s.14. 138 The 1753 Act, ss.16, 18. 139 32 Geo.2 c.28 (1758), being “An Act for Relief of Debtors with respect to the Imprisonment of their Persons; [etc]” and, more particularly, s.6 (which authorised the making of rules for the gaols belonging to the courts in Westminster Hall, and for those in the City of London, and in Middlesex and “Surry”, and for those in counties, cities and boroughs generally). 140 14 Geo.3 c.59 (1774), being “An Act for preserving the Health of Prisoners in Gaol, and preventing the Gaol Distemper”.

90 and the need to provide washing facilities and proper ventilation and cleaning), and in 1784141 (enabling county justices to build, rebuild or enlarge gaols).

10. In Devon, the county justices sought, and in 1787 obtained, an Act142 which enabled them to take charge of the “High Gaol” in Exeter (sited “near” the castle, probably within its grounds), and to undertake significant repairs to the building so that it could be brought up to a standard befitting “a publick and common gaol” for the housing of criminals.143 Those repairs (or any rebuilding) would be “in the same manner and upon the same footing as other gaols in this Kingdom are by law directed to be supported, maintained, and repaired, removed, or rebuilt”.144 The need, in particular, to enlarge the gaol stemmed from the “malignant fevers, and other disorders”, of which there were frequent outbreaks, caused by the number of prisoners confined in an inadequate space.145 This gaol was separate from the debtors gaol and was designed for holding “felons, and other offenders”.146

11. The 1787 Act, in order to fulfil its purpose, authorised (in broad terms) the steps set out below. The Act was needed, notwithstanding the existence of the recently passed 1784 Act147, because the proposal to sell and acquire land could not “be carried into execution without the aid and authority of an Act of Parliament”.148 The steps were: (a) the vesting in the county justices of the freehold of the gaol and appurtenant buildings, together with the keeper’s house (the previous

141 24 Geo.3 Sess.2 c.54 (1784) (“the 1784 Act”) - see above - being “An Act to explain and amend an Act, made in the eleventh and twelfth Years of the Reign of King William the Third, intituled, An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties [1698]; and for other Purposes therein mentioned”. These Acts were to be followed by enactments in 1789 and 1791 which sought to reinforce the gaol monitoring regime. 142 27 Geo.3 c.59 (1787) (“the 1787 Act”), being “An Act for making and declaring the Gaol for the County of Devon, called the High Gaol, a Publick and Common Gaol; and for discharging Denys Rolle and John Rolle, Esquires, and their respective Heirs and Assigns, from the Office of Keeper of the said Gaol; and for improving and enlarging the same, or building a New one; and also for taking down the Chapel in the Castle of Exeter; and for other Purposes therein mentioned”. 143 The 1787 Act, preamble and s.1. The 1787 Act was designed to transfer ownership of the Exeter gaol from its private owners (the Lord of the Manor of Bicton and his son), who had kept the gaol in repair, to the county justices who would hand the responsibility of keeper to the High Sheriff for the county: preamble to the 1787 Act. 144 The 1787 Act, preamble. 145 The 1787 Act, s.4. 146 The 1787 Act, s.4. 147 24 Geo.3 Sess.2 c.54 (1784): see above. 148 The 1787 Act, preamble and s.6. The 1787 Act nonetheless specifically applied the provisions contained in the 1784 Act “for the better effectuating and carrying into execution this present Act to all intents and purposes, except in such cases as are herein-before specially provided for”: ibid., s.6.

91 owner also paying a form of dowry of £1,000, and defraying the cost of obtaining the Act);149

(b) the holding of the gaol and buildings as “a publick common gaol for the said County” (to be kept by the county sheriff), and the maintaining of the buildings;150

(d) indemnification of the transferees of the gaol premises (the Rolle family) against liability for future repairs and the like;152

(e) the acquisition of adjoining garden land and other small parcels of land (from the Duchy of Cornwall and others) for the purpose of improving the entrance to the gaol, and linking the gaol and acquired land by partial removal of the castle wall. Failing this acquisition, “it may become necessary to build a new gaol in some other part of the county of Devon” (for which separate land acquisition powers were provided);153

(f) the construction of “all necessary drains or sewers through any parts of the said city and county”, and the construction of watercourses (which was made an obligation) so as to provide a fresh water supply to the gaol;154

149 The 1787 Act, preamble and s.1. The purpose of the £1,000 payment, made to the county treasurer, was to help provide towards “the repairing, rebuilding, or removing” of the gaol, in return for which the transferor, his heirs and assigns were “for ever freed and discharged from” holding the office of gaol keeper, expending moneys on the office, and contributing (except by way of rating liability) to any future repairs bill. 150 The 1787 Act, s.1. 151 The 1787 Act, s.2. The salary would be paid out of the county rate and the appointee would hold office “under such conditions and regulations” as the justices thought fit: ibid. 152 The 1787 Act, s.3. 153 The 1787 Act, s.4. Enlargement would be driven by the necessity to create more gaol space and to prevent the occurrence of “malignant fevers, and other disorders”. The land, once transferred, would be held for the justices by trustees nominated at the county quarter sessions.The need to build on an alternative site came to fruition as quickly as 1788, although realisation of the need for ratification did not occur until 1810: see the 1810 Act, discussed below. 154 The 1787 Act, ss.4, 5. The Act gave, in effect, compulsory purchase and construction powers to the justices to create a watercourse over private lands, and a continuing right to use surveyors and workmen to enter the relevant lands “for the purpose of cleaning, scouring, repairing, or amending” the watercourse and associated works: ibid., s.5.

92 (g) the demolition of a chapel in the grounds of the castle, in order to facilitate the creation of a “proper approach” from the gaol to the law courts sited within the castle precinct;155 and

(h) the provision of a right of appeal by persons “aggrieved by anything done under or by virtue of this Act” to the county justices sitting in general or quarter sessions for such order as “shall seem meet” to the justices, and for a time limit on any legal proceedings under the Act.156

Status of the 1787 Act 12. The 1787 Act (as a local Act) was designed to supplement the powers contained in the 1784 national Act. Its principal purpose was to acquire the freehold of the gaol, and some privately-owned adjoining land, so that the county gaol could be extended and enhanced on its existing site.

13. This Act (unlike the 1753 Act: see above) related to the gaol used for housing criminals rather than debtors or vagrants.

14. For the reasons explained below at paragraph 44, when the old castle gaol was decommissioned and replaced in 1796, the whole of the 1787 Act became spent and may now be repealed.

50 Geo.3 c.lxxxv (1810) (Devon County Gaol Act 1810) Background and purpose 15. The 1787 Act had indicated that, as an alternative to extending the gaol sited at Exeter castle (and assuming “a proper grant” of the adjoining garden land could not be obtained), the county justices might need “to build a new gaol in some other part of the county of Devon”.157 The Act did not, however, specifically empower the justices to acquire an alternative site, or to build on it.

16. In fact, after the passing of the 1787 Act, the justices decided that it would be more appropriate to acquire a separate piece of land in order to construct a new

155 The 1787 Act, s.7. Not only was the chapel inconveniently sited, but the building was “very much out of repair, and incapable of being completely repaired without a very considerable expence, … so as greatly to deface the said area”: ibid., s.7. Divine service for the quarter sessions would henceforward be celebrated in the Nisi Prius Court (or some other suitable appointed place in the castle), and the prebendaries would be eligible to read the liturgy in such place: ibid., ss.7, 8. 156 The 1787 Act, ss.9, 10. 157 The 1787 Act, s.4.

93 county gaol. In 1788 they purchased about eight acres of farm land in the parish of St. David’s in Exeter and in due course, on part of the land, they erected a new gaol and related buildings. Subsequently, and on the remainder of the land, they erected “a new bridewell or house of correction for the use of the said county”.158 Both these actions they purported to undertake through the 1787 Act (reinforced by the powers in the 1784 Act).159

17. By 1810 the justices (or others) had entertained doubts as to whether they were lawfully empowered to purchase the eight acres site and to build the gaol and house of correction, and to treat them as situated within the county of Devon rather than in the city of Exeter. In order to resolve this doubt and, more particularly, to ensure both that the actions were “sanctioned, settled, and confirmed by the Authority of Parliament” and that the land could also be used “for such other public county purposes as by the justices at the general quarter sessions of the peace for the said county of Devon shall from time to time be thought necessary or convenient”, the justices sought and obtained a confirmatory Act in 1810.160

18. The 1810 Act was a relatively short piece of legislation. In order to fulfil its purpose it authorised (in broad terms) the following steps: (a) that the land which had been purchased should be deemed to be within the county of Devon, and the gaol (declared to be “a public common gaol”) and house of correction buildings should be deemed to be vested in the Devon county justices;161

(b) that the various buildings were to be maintained and repaired by the justices in accordance with the law relating to other public and common gaols and houses of correction;162

(c) that the land should be used for its present purposes and for “such other public county purposes” as the justices (acting in quarter sessions) “shall think proper and direct”;163

158 Preamble to 50 Geo.3 c.lxxxv (1810) (“the 1810 Act”), being “An Act to explain and amend an Act of the Twenty-seventh Year of His present Majesty [1787], for making and declaring the Gaol for the County of Devon a Public and Common Gaol, and for other Purposes in the said Act mentioned”. 159 The 1810 Act, preamble. 160 The 1810 Act, preamble. 161 The 1810 Act, s.1. 162 The 1810 Act, s.1.

94 (d) that any legal proceedings against the justices, or the sheriff or other office-holders, on the ground of want of jurisdiction to commit to the new gaol or house of correction, would be rendered void (and the office-holders indemnified accordingly);164 and

(e) that the costs of obtaining the 1810 Act and “of carrying the several purposes thereof into execution” should be raised by county rate.165

Status of the 1810 Act 19. The 1810 Act had one primary purpose: to validate, retrospectively and legally, the steps relating to land acquisition and building which had occurred between 1787 and 1810.

20. In so doing, the 1810 Act extended the powers of the following Acts to the events then in hand: the 1787 Act, a 1782 Act166 relating to houses of correction, the 1784 Act relating to gaols, a second 1784 Act167 relating to houses of correction, a 1789 Act168 relating to gaols, and a 1791 Act169 relating to gaols. Each of these Acts was to be applied “for the better effectuating and carrying into execution this present Act” except insofar as the 1810 Act made specific provision.170

21. For the reasons explained below at paragraph 45, although the gaol continued to function, the house of correction sited at Exeter St. David’s was later decommissioned.

22. The purpose underpinning the 1810 Act was superseded once the county gaol was built and the whole Act, having become spent, may now be repealed.

58 Geo.3 c.li (1818) (Exeter Gaol Act 1818) Background and purpose 23. By the early 19th century the city of Exeter had long-acquired the status of both city and county in its own right, and was administratively separate from the

163 The 1810 Act, s.1. 164 The 1810 Act, s.2. The Act also made provision for the award of costs for actions brought “before the passing of this Act”: ibid., s.3. 165 The 1810 Act, s.5. 166 22 Geo.3 c.64 (1782). 167 24 Geo.3 Sess.2 c.55 (1784), which Act amended the 1782 legislation. 168 29 Geo.3 c.67 (1789). 169 31 Geo.3 c.46 (1791). 170 The 1810 Act, s.4.

95 county of Devon. At South Gate in Exeter (in the parish of The Holy Trinity) the city council owned and ran a gaol for the city. This gaol housed prisoners who had committed offences within the city limits.

24. The South Gate gaol (or Southgate gaol as it was known) had become “too small, and unfit for the proper accommodation of the prisoners usually confined therein, and [was] moreover extremely unwholesome, and inconveniently situated”.171 The city council therefore sought, and in 1818 obtained, an Act172 which enabled them to sell the existing gaol, to acquire a new site and to rebuild the gaol (as “the common gaol and house of correction” for the city173) on that site.

25. The 1818 Act recites in its preamble that the new gaol should be designed “for the separation, employment, and regulation of the prisoners therein”, but that this aim, and the overall project, could not be achieved “without the aid and authority of Parliament”. By this time, various public Acts for gaol rebuilding across the country were in place but, in the main, those tranches of legislation were directed to gaols managed by local justices (usually for the benefit of counties rather than individual towns or cities).

26. In order to fulfil its purpose, the 1818 Act authorised (in broad terms) the following steps: (a) the constituting of the mayor, recorder, aldermen and sheriff of the city (together with nine nominees) as commissioners who would oversee the design, building and allied operations;174

(b) providing mechanisms for the appointment of replacement commissioners and of executive officers, and the conducting of business meetings;175

171 Preamble to 58 Geo.3 c.li (1818) (“the 1818 Act”). 172 The 1818 Act, being “An Act for building a new Gaol and House of Correction for the City and County of the City of Exeter”. 173 The 1818 Act, s.18. 174 The 1818 Act, s.1. In particular, the commissioners would select the most appropriate site and ensure a proper water supply. The commissioners’ authority would expire as soon as the new gaol had been built and any mortgage moneys repaid (and the various powers under the Act would then vest in the city council): ibid., s.27. 175 The 1818 Act, ss.2-5.

96 (c) the keeping of accounts for moneys received and expended in connection with the gaol and house of correction, and the keeping separate of the offices of treasurer and clerk;176

(d) vesting of power in the commissioners to purchase the necessary land (to a limit of two acres), the land to be held by the city council for the purposes of the Act;177

(e) enabling persons or bodies with legal incapacity to sell and convey land and buildings (and creating a rebuttable presumption as to lawfulness of possession);178

(f) authorising the commissioners to build on the newly-acquired land “a convenient new common gaol and house of correction” with adequate facilities (including an infirmary) “for the confinement of criminals, debtors, and others”, together with residential accommodation for the gaoler and other gaol officers;179

(g) authorising the sale and disposal of the existing common gaol located at Southgate, and the effecting of legal transfer, and the application of the proceeds towards the land acquisition and construction project;180

(h) requiring the city council to be responsible for all running expenses for, and all ordinary repair costs for the fabric of, the new building (but not the cost of any rebuilding or extension which might later be required);181

(i) the raising of the necessary moneys (as assessed, but capped in total at £10,000) by requiring the local justices to levy an annual rate on the

176 The 1818 Act, ss.6, 8. 177 The 1818 Act, s.9. 178 The 1818 Act, ss.10, 14 and 15. Sections 11-13 of the Act made provision for the handling of different levels of compensation moneys payable to persons or bodies who were subject to legal incapacity (being a form of payment into trust sanctioned by the High Court). 179 The 1818 Act, s.16. The gaol and house of correction buildings were also to be fitted out “in a complete and effectual manner for the reception, security and health” of the prisoners.The commissioners were specifically authorised to contract with “such artificers, workmen, labourers, and others” as were needed to effect the job: ibid. 180 The 1818 Act, s.19.

97 city, in accordance with the usual procedure for levying county rates (which annual rate was not to exceed £2,500);182

(j) permitting the borrowing of moneys for the project (to a maximum of £5,000), to be secured by mortgage on the county rates, the payment of interest on the sums borrowed on appointed days, and the annual repayment of capital (at no less than £1,000 per year);183 and

(k) the appointment (and dismissal) by the city council of a gaoler and such other gaol officers as were considered necessary.184

27. Unlike under similar local Acts, no provision was made either for the handling of grievances by a judicial appeal mechanism, or for a limitation period for legal proceedings.

28. Once constructed and made operational, the gaol was to be designated “the common gaol and house of correction for the said city and county of the city of Exeter”, and responsibility for holding prisoners would rest with the sheriff of the city and county. The new facility was deemed to be within the city’s jurisdiction and would be used for the holding of prisoners committed there by “any court of record within the said city”.185

Status of the 1818 Act 29. The 1818 Act was designed to authorise disposal of the Southgate gaol, and to build elsewhere a new city gaol and house of correction. The Southgate site was disposed of in 1819, the replacement gaol having been constructed and commissioned under the same Act. This second gaol, in turn, was decommissioned in 1863.

30. The 1818 Act stood alone by not patently relying on, or extending, other legislation.

181 The 1818 Act, s.20. The circumstances giving rise to the need to rebuild, and which were specifically excepted, were destruction “by the King’s enemies, popular commotions, fire, earthquake, tempest, inundation, or other similar inevitable accident”: ibid. 182 The 1818 Act, ss.21, 22. 183 The 1818 Act, ss.23, 24 and 26 (and the schedule, which prescribed the forms of mortgage and transfer). The sequence of application of the various moneys raised (paying loan interest, paying for land acquisition, and so on) was set down in section 25. 184 The 1818 Act, s.28. 185 The 1818 Act, s.18.

98 31. The Exeter Gaol Act 1863 (see below) purported to repeal the 1818 Act, subject to two provisos.186 First, the 1818 Act would be treated as repealed only when “all the prisoners in the city gaol are removed therefrom to the county gaol”.187 The 1863 Act did not give a specific date for repeal, and there can be no guarantee from this distance that all the prisoners were relocated solely to the county gaol or to other institutions. The 1863 Act was also silent, in this regard, as to the prisoners held in the separate house of correction. Houses of correction were not abolished throughout England and Wales until 1865.188

32. Secondly, and more explicable, the repeal in the 1863 Act was stated not to have “any retroactive operation”.189

33. The published Chronological Table of Local Legislation190 shows the 1818 Act as being prospectively, but not actually, repealed by the 1863 Act.

34. The 1818 Act, having become spent and for the avoidance of future doubt, may now be repealed in whole.

Exeter Gaol Act 1863 (26 & 27 Vict. c.lxxiii) Background and purpose 35. The Exeter Gaol Act 1863 recited in its preamble that, pursuant to the 1818 Act, a new gaol and house of correction had been built in the city, and that prisoners (“as well criminals as debtors”) were still confined there.

36. The city council had formed the view that the city gaol and the house of correction were “inadequate for the purposes of classification and separate confinement of prisoners required by law, and cannot be made available for those purposes without undue expense”.191 By the time of the passing of the 1863 Act, national legislation had imposed a series of obligations on gaol managers. For example, in 1823, a wide-ranging Act had been passed consolidating and amending

186 26&27 Vict. c.lxxiii (1863) (“the 1863 Act”), s.24. 187 The 1863 Act, s.24. On satisfying the condition precedent “the recited Act [of 1818] shall be by this Act [of 1863] repealed”. 188 Prison Act 1865, ss.4, 56 (This 1865 Act was later repealed by the Prison Act 1952). The 1865 Act formally amalgamated gaols and houses of correction in a single institution, the “prison”. 189 The 1863 Act, ss.24, 26. Section 25 contained a general saving (made subject to the provisions in the remainder of the 1863 Act) for actions undertaken pursuant to the 1818 Act. 190 Vol. 1, Local and Personal Acts 1797-1860 (HMSO, 1996 and updated to Dec. 2003), p. 141. The Act’s short title is given in the text in bold type, denoting that it is still extant. 191 The 1863 Act, preamble.

99 the law relating to the building, repairing and regulating of various gaols and houses of correction, including those in Exeter.192

37. The solution was to decommission (and sell) the present city gaol, and to transfer the prisoners to the county gaol under a custody and maintenance contract entered into with the county justices. This needed specific statutory authorisation, which was granted by the 1863 Act.193

38. The purpose of the 1863 Act was to permit (in broad terms) the following steps: (a) the city corporation was empowered to enter into contracts with the county justices (when duly resolved by order) “for the maintenance, safe custody, and care in the gaol and house of correction for the county of Devon” of all prisoners so committed, and to meet the charges incurred;194

(b) the removal of all prisoners from the city gaol to the county gaol;195

(c) the future committal of prisoners (including those awaiting trial for criminal offences, those convicted, and “those committed on any civil process”) to the county gaol rather than the city gaol, at least for the duration of the custody contract;196

(d) the deeming of all prisoners detained in the county gaol, under the provisions of the Act, to be held “in lawful custody”;197

(e) applying the same gaol regulations to city prisoners as applied to county prisoners;198

192 4 Geo.4 c. 64 (1823), Section 2 of, and Schedule A to, this Act placed a statutory obligation on the towns and cities as listed (which included Exeter) to maintain “one gaol and one house of correction”; and the various rules and regulations relating to management practice were specifically applied to these institutions.The 1823 Act was amended by an Act the following year (5 Geo.4 c.85 (1824)) which dealt with the raising of moneys (and loan repayments) for the purpose of building and rebuilding gaols.Further changes were made to the 1823 and 1824 Acts by Acts in 1839 (2&3 Vict. c.56 (1839)) dealing, inter alia, with classification of prisoners, prison rules and approval of plans for prison building or alterations; and in 1842 (5&6 Vict. c.98 (1842)), inter alia, raising the monetary limit on the power to borrow. These Acts were eventually consolidated and amended in 1865 (by the Prison Act of that year). 193 The 1863 Act, preamble and s.1. 194 The 1863 Act, ss.2, 23. The first contract was to be for a minimum duration of ten years: ibid., s.3. 195 The 1863 Act, s.4. 196 The 1863 Act, ss.6-10. The city authorities were not, however, permitted under the contract to “use the county gaol as a lock-up house for night charges”: ibid., s.7.

100 (f) providing (both as to arrangements and costs) for the transfer of prisoners to other prisons or to courts;199

(g) indemnifying the county sheriff and the keeper of the county gaol from any liability towards the city corporation for accidental (rather than “wilful”) acts or defaults in respect of prisoners;200

(h) providing for the city authorities to inspect the county gaol and to make representations to the county justices on their findings;201

(i) compensating, by annuity payment, city gaol officers of longstanding (having not less than 15 years of service) for loss of employment arising by operation of the 1863 Act;202

(j) entitling the city corporation to continue to hold the city gaol land (as part of “their general corporate estates”, and freed from its restrictions on use) and, in its discretion, to sell the land and the building materials in whole or in part;203 and

(k) to apply the proceeds of sale towards the costs of the obtaining of the 1863 Act,204 and then principally towards “providing a new gaol and house of correction for the city” (and placing an obligation on the city corporation to have acquired, by 1865, up to four acres of land within the city as a replacement site).205

197 The 1863 Act, ss.12, 13. 198 The 1863 Act, s.14. 199 The 1863 Act, ss.15, 16. 200 The 1863 Act, ss.17-19. 201 The 1863 Act, ss.21, 22. 202 The 1863 Act, s.29. 203 The 1863 Act, ss.30-32. 204 The initial cost associated with the Bill would be payable out of the city rate or the city fund, but that expenditure would in due course be reimbursed from the proceeds of sale: the 1863 Act, s.39. 205 The 1863 Act, ss.33-35. Any balance remaining was to be used “towards the discharge of incumbrances on the corporate estates of the corporation”: ibid., s.33. Interestingly, the preamble to the 1863 Act was silent as to re-provision of the city gaol facility; indeed, it spoke specifically of the custody contract solution operating “instead of erecting a new gaol and house of correction”. Section 37 seems to have envisaged that the replacement gaol and house of correction would not actually be built until (“if and when”) the county justices “determine that prisoners from the city shall cease to be kept under this Act in the county gaol”. Once acquired, the site would simply be held in readiness for building a new gaol within the city confines should the need arise.

101 Status of the 1863 Act 39. The principal purpose of the 1863 Act was to decommission the then Exeter city gaol, which was sited at Rougemont. As indicated below at paragraph 47, this gaol did close in 1863.

40. The 1863 Act became spent, and may now be repealed.

Archive-based history 41. Because Exeter was both a city and (from 1537) a county in its own right, and a key administrative centre for the county of Devon, it was home during the 18th and 19th centuries to different court jurisdictions and different gaol regimes. The latter were divided into county and city-run gaols, and subdivided into gaols for the housing of prisoners convicted of crime or awaiting trial, and those who were debtors and vagrants.

42. Given Exeter’s county status, any gaol serving the separate county of Devon had to be sited outside the city boundary (although it needed to be within reasonable proximity of the principal courts for the county of Devon).

43. In 1837 the following three gaols were recorded as being operational: Exeter county gaol and bridewell; Exeter county debtors’ prison; and Exeter city gaol and bridewell.206

44. The old county gaol sited at Exeter castle had been in existence since 1518 when it had transferred from Bicton (a village to the south-east of Exeter), under the custody of the lord of the manor of Bicton. In 1787 (see above) the lord of the manor was relieved from responsibility by statute. The gaol was sited just to the south-east of the castle (although within the castle precincts). In 1788 the county quarter sessions received the “presentment” as to the condition of the High Gaol, and determined that it should be deconstructed and rebuilt on an appropriate site.207 The old gaol appears to have been decommissioned and demolished around 1796 to make way for a new independent chapel or meeting house on the site (the building for which still stands today).208

206 Second Report of the Inspectors appointed under the provisions of the [1835] Act 5&6 Will. 4 c.38, To visit the Different Prisons of Great Britain (1837), Part III, pp. 21-31. 207 See County Quarter Sessions order book entries for 1788 (QS 1/21, pp.229, 234). 208 The site of the old gaol (with certain buildings and materials) was purchased at auction by Mr Shirley Woolmer, to make room for the new chapel, on 1 March 1796 for £420: see G. Oliver The History of the

102 45. The new county gaol was built in the St. David’s parish on the New North Road around 1794-96 (opening in 1796).209 An adjoining house of correction (bridewell) was built between 1807 and 1810, and the appointed governor presided over both institutions. The Exeter St. David’s building was later remodelled and extended, in or around 1853, and was again the subject of additions before 1876. By 1878 this was the only functioning gaol in Exeter.210 The prison today operates under the auspices of HM Prison Service as HMP Exeter. Now with over 500 cells, it accepts and accommodates all adult and young offenders committed from courts in Devon and Cornwall (and west Somerset).

46. A debtors gaol seems first to have been established at Exeter St. Thomas in 1675. That county gaol was closed and demolished in 1818, and a new one (the sheriff’s ward) built on an adjoining site in that same year.211 This replacement, and more extensive, county gaol for debtors operated until 1853 when it, too, was closed (the buildings being first converted into a storehouse for the local militia, and later - in 1909 - the bulk were demolished).212 On closure, the imprisoned debtors were transferred to the Devon county gaol.

47. At South Gate in Exeter stood a city gaol (also demolished in 1819) which housed debtors (in the east wing) and felons (in the west wing). This gaol had been constructed in the 16th century by the city council (for the city’s use) under a charter from Edward VI. It was replaced by a new common gaol and house of correction for the city, to which prisoners were transferred in 1819. This city gaol was sited at Queen Street (in the Rougemont district of Exeter), where it survived until September 1863. It cost around £13,000 to construct. On closure, prisoners moved to the county gaol.213 The Queen Street site was later occupied by a large hotel.214

Extent 48. Each of the five Acts referred to in this Note (running from 1753 to 1863) apply locally only within the county of Devon in England.

City of Exeter (1861), pp. 190-193. See also County Quarter Sessions order book entries for 1796 (QS 1/22, p.108). These and other references have kindly been supplied to us by the Devon County Archivist (Mr John Draisey). 209 See County Quarter Sessions order book entries for 1796 (QS 1/22, p.118 - regulations for new gaol, and p. 120 - appointment of gaoler and chaplain). 210 See White’s Directory 1878-79, p. 333. 211 This gaol was constructed fronting on to Cowick Street in St. Thomas’, on the outskirts of Exeter. 212 See G. Calland A History of the Devon County Prison for Debtors in St. Thomas, Exeter (1999). 213 See W.J. Forsyth A System of Discipline: Exeter Borough Prison, 1819-1863 (1983). 214 See White’s Directory 1878-79, p. 333.

103 Consultation 49. The Home Office, HM Prison Service, Devon County Council and Exeter City Council have been consulted about these repeal proposals.

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104 COUNTY GAOLS GROUP 6 - ESSEX ______Reference Extent of repeal or revocation ______13 Geo.3 c.35 (1772) The whole Act. (Essex Gaol Act)

1&2 Geo.4 c.cii (1821) The whole Act. (Essex Gaols Act)

7&8 Geo.4 c.x (1827) The whole Act. (Essex Prisons Act) ______

13 Geo.3 c.35 (1772) (Essex Gaol Act 1772) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout the country) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.215 That power, however, fell short of outright control. In the latter half of the 18th century the power also of gaol management started to be ceded.216 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Essex, the local justices had secured an Act in 1770217 which permitted them to purchase land and then erect and furnish a new gaol for the county, so long as the net expenditure (giving allowance for reusable materials from the existing gaol) did not exceed £10,000. Two years into the project the justices, realising that the financial ceiling would “not be sufficient” to undertake land acquisition and to

215 11 Will.3 c.19 (1698) (“An Act to enable the Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784). Rebuilding of gaols was also provided for, after the Essex Gaol Act of 1772, in 24 Geo.3 Sess.2 c.54 (1784). 216 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 217 10 Geo.3 c.28 (1770), entitled “An Act for rebuilding the Common Gaol of the County of Essex”. This Act related to Chelmsford Gaol, and gave the county justices power to raise by rate precept the necessary moneys.(The later 1772 Act (see below) said, in a side heading to its preamble, that the

105 defray construction costs, sought and secured by an Act of 1772 (“the 1772 Act”)218 power to raise an additional £8,000 by levying a county rate.219 The total sum raised would then be adequate to fulfil “the purposes of the said former and this present Act”.220

3. The 1772 Act did not spell out on its face where the new gaol was to be sited within the county of Essex, but given the purpose of the Act (operating as an adjunct to the 1770 Act) the inference is that it would be built in Chelmsford. That inference is reinforced by the report of the proceedings of the committee of the House of Commons (in May 1771) which received and considered petitions lodged against an amending Bill. The Bill was designed to address the decaying state of, amongst other places, the common gaol for the county of Essex which was situated in Chelmsford.221 The report records that, following a finding of the Grand Inquest in 1767 to the effect that the then county gaol was “in very bad condition, in point of repair” and was “not sufficient, in its present state, either for securing the persons committed, or for the prevention of contagious distempers”222, the county justices had established a committee to do two things. First, “to survey and examine” the gaol and, secondly, to make recommendations to quarter sessions as to whether the gaol was capable of being “effectually repaired”, or whether its condition was such that “it must be pulled down and rebuilt” (and, if the latter, “to procure a plan and estimate for that purpose”).223 The upshot was that it was decided that the existing gaol was past repair and that a replacement would have to be built. After much searching for a suitable site (and unsuccessful negotiation with owners), and having already secured the passing of the 1770 Act, the justices finally achieved the opportunity to purchase the White Horse Inn (and grounds) in Chelmsford. On this site would be built a new county gaol and a public courthouse (and related facilities).224

power was to “borrow” moneys, but that seems to be an error). The 1770 Act was repealed in whole by the Statute Law Revision Act 1948, s.1, sch 1. 218 13 Geo.3 c.35 (1772), entitled “An Act for raising a further Sum of Money for the Purpose of rebuilding the Common Gaol of the County of Essex”. 219 The 1772 Act, ss.1, 2. (The printed version of the 1772 Act carries only side headings and not section numbers.The section numbers used in this note have simply been assigned informally to aid navigation through the Act’s text). The additional county rate was to extend to all boroughs and towns within the county: ibid., ss.4, 5. 220 The 1772 Act, s.1. 221 Journals of the House of Commons, 1770-71 Session, vol.33, pp.368-398 (1803 reprint), referred to below as “the 1771 Report”. 222 The 1771 Report, pp. 370-371. 223 The 1771 Report, p. 371. 224 October 1770 sessions: the 1771 Report, pp. 376-7. The various petitioners sought to show Parliament that the White Horse Inn site was inappropriate, and that the gaol should be rebuilt on its existing site which was situated at the end of Moulsham (a hamlet), on the outskirts of Chelmsford, beside the River Can. The river separated the old gaol from the town (see 1771 Report, pp. 396-7).

106 4. The justices also decided that implementation of the 1770 Act should be postponed, and that an amending Act be sought in the next Parliamentary session which would provide, amongst other things, for the abatement of rates for occupiers of “lands and tenements”, purchase of the necessary site and non-interference with the town’s water supply. It would also “repeal the last Act”.225

5. In order to fulfil its purpose, the 1772 Act authorised (in broad terms) the following steps: (a) for the county justices in general or quarter sessions “to assess such further sum and sums of money (over and above the aforesaid sum of ten thousand pounds provided to be raised by the said former [1770] Act) as they shall, from time to time, find necessary for the purposes of the said former and this present Act”, which assessments were not cumulatively to exceed £8,000;226

(b) for the justices to levy a rate (to collect the necessary sum or sums) by precepting proportionately on the boroughs, towns, parishes and other communities within their county (which sums, when collected, would be held by the county treasurer);227

(c) for the balance of any moneys raised under the 1770 or 1772 Acts, which remained unspent on the statutory purposes, to be transferred into the “County Stock” for any use to which that fund could lawfully be applied228, and for all receipts and expenditure to be regularly accounted for;229 and

(d) for any person who believed him or herself “overcharged” or otherwise “aggrieved” to appeal to the justices, sitting in session, for an order which to them “shall seem meet”.230

225 The 1771 Report, pp. 376-7. In the event, the 1772 Act did not repeal the 1770 Act. 226 The 1772 Act, ss.1, 2. 227 The 1772 Act, s.2-5. The Act expressly provided that nothing contained in it was intended to give the county justices “any power or authority” in the boroughs, towns and the like “which they had not before”: ibid., s.5. 228 The 1772 Act, s.6. 229 The 1772 Act, s.7. 230 The 1772 Act, s.8.

107 Status of the 1772 Act 6. The 1772 Act made patent that it operated as a measure which supplemented (and was dependent upon) the extant 1770 Act.231 The 1772 Act made no separate provision for the purchase of land or the erection of buildings.

7. For the reasons explained below at paragraphs 20 to 23, the whole of the 1772 Act may now be repealed on the basis that its original purpose (to raise moneys, to acquire a site and to erect a new gaol building) was fulfilled and it has become spent.

1 & 2 Geo.4 c.cii (1821) (Essex Gaols Act 1821) Background and purpose 8. Gaol accommodation, by the early 19th century, needed to be expanded in Essex, both by extending the existing prisons in the county and by construction of an additional gaol. By an Act of 1821 (“the 1821 Act”)232, the county justices, following “a Presentment by the Grand Jury” (at the county assizes held in 1819), were empowered to purchase “ground and buildings” and to raise money for this purpose by levying a county rate.233

9. The 1821 Act specifically acknowledged that its purpose was to supplement powers - inadequate for the present objects - contained in a public general Act of 1784234, which itself was designed to supplement and amend a public general Act passed in 1698 enabling “the Justices of the Peace to build and repair Gaols in their respective Counties” and to carry out allied purposes.235

10. The 1821 Act provided that the “additional gaol” to be erected, and the enlargement of, and improvements to, the “existing prisons”, should conform to “the directions” contained in the 1784 Act.236 The Act set a ceiling of £40,000 to be raised

231 The 1772 Act, s.7 provided that “a fair and just account shall be made and wrote out of all monies received and paid by virtue and in pursuance of the said former and this present Act”. 232 1&2 Geo.4 c.cii (1821), being “An Act for building an additional Gaol for the County of Essex, and for enlarging, improving, and altering the existing Prisons for the same County”. 233 Preamble to the 1821 Act. The county rate would be imposed by the justices for the county sitting “at their General Quarter Sessions assembled”. 234 24 Geo.3 Sess.2 c.54 (1784), entitled “An Act to explain and amend an Act, made in the eleventh and twelfth Years of the Reign of King William the Third, intituled, An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties; and for other Purposes therein mentioned”. See the 1821 Act, preamble and s.3. 235 11 Will.3 c.19 (1698) (see reference above). The 1821 Act was designed also, by way of catch-all provision, to supplement “any other Act or Acts now in force”: preamble to the 1821 Act. 236 The 1821 Act, s.3.

108 in aggregate by the justices to secure its purposes237, but this figure did not include the costs of future repair of the “additional gaol”.238 The “additional gaol”, once built and operational, was to be treated as “an additional or subsidiary Public and Common Gaol for the said County of Essex”.239

11. In order to fulfil its purpose, the 1821 Act authorised (in broad terms) the following steps: (a) purchase of land by the county justices to be used as a site for “an additional gaol” for the county, clearing the land of existing buildings as required, and erecting the new gaol complex and its infrastructure;240

(b) undertaking enlargements, improvements and alterations as necessary of existing prisons in the county;241

(d) enabling the justices, where an interest-owner failed to negotiate on the purchase price of land or buildings, or to accept the purchase moneys, or to make good title, to proceed by jury valuation, followed by payment into the Bank of England (to be applied by direction of the High Court of Chancery)243 and then vesting of title;244

(e) permitting resale of acquired land which became surplus to requirements, subject to that land first being offered back to the

237 The 1821 Act, ss.23, 26. No rate on a property in any one year was to exceed 3d. in the £: ibid., s.26. 238 The 1821 Act, s.23. Repair costs were to be raised as provided for in the Act of 1784: ibid., s.23. 239 The 1821 Act, s.20. The additional gaol would house criminals, debtors, vagrants and persons awaiting trial. For the avoidance of doubt, justices within boroughs and towns falling outside the county jurisdiction were specifically authorised to commit to the gaol prisoners who had been remanded in custody pending trial or convicted of offences: ibid., s.28. 240 The 1821 Act, ss.1, 4. The power also extended to entering into any necessary contracts “for effecting the purposes of this Act”: ibid., s.1. 241 The 1821 Act, s.1. 242 The 1821 Act, s.5. 243 Where the sum was £20 or less the justices were empowered to apply the moneys for the benefit of the non-compliant owner as they thought fit: the 1821 Act, s.11. 244 The 1821 Act, ss.6-15. On passing of title by this route the justices were then able lawfully to take possession of the relevant land, and the previous owners or occupiers were thereupon “divested of all right in and to the same and every part thereof”: ibid., s.15.

109 original proprietor for purchase (and any refusal to repurchase being evidenced by affidavit);245

(f) permitting sale and disposal (by public auction or otherwise) of existing gaol sites which, through implementation of the powers in the 1821 Act, had become redundant;246

(g) empowering the county sheriff to transfer prisoners to the additional gaol, when complete, from other places of custody (and to remain liable for their continuing custody);247

(h) empowering the justices “to visit and superintend” the additional gaol, and to order moneys to be spent on necessary repairs;248

(i) enabling the county justices (acting in general or quarter sessions) to raise the money to implement the Act’s purposes through a rating assessment to be precepted proportionately on each town, parish, hamlet or place within the county of Essex;249 and

(j) maintaining and authenticating a separate annual account of all moneys paid and received under the 1821 Act’s provisions.250

Status of the 1821 Act 12. For the reasons explained below at paragraphs 20 to 23, because the Springfield gaol was financed, built and fitted-out as provided for in the legislation, the whole of the 1821 Act may now be repealed.

7 & 8 Geo.4 c.x (1827) (Essex Prisons Act 1827) Background and purpose 13. By 1827 the county justices had, under the powers in the 1821 Act, acquired approximately six acres of land and had erected thereon an “additional gaol” for the county. However, the sum of £40,000 (the statutory upper limit) had been found to

245 The 1821 Act, ss.16, 17. 246 The 1821 Act, s.18. 247 The 1821 Act, s.20. 248 The 1821 Act, ss.22, 23. The repair bill was not to exceed £100 in any one year, which sum was to be treated as additional to the £40,000 authorised for the main purposes of the Act: ibid., ss.22, 23. 249 The 1821 Act, s.26. The Act provided a right of appeal to quarter sessions (but not beyond) for persons “who shall apprehend themselves overcharged or otherwise aggrieved”: ibid., s.33.

110 be “insufficient” to fund both the new building and the “enlarging, improving, and altering” of certain other prisons in the county, which necessitated the seeking of further powers.251

14. In 1827 an Act was passed (“the 1827 Act”)252 which remedied the situation. It provided that, having acquired the necessary land and built the new gaol (at Springfield, on the outskirts of Chelmsford, in Essex), the justices could now acquire further land and build a new house of correction “in the Half Hundred of Beccontree in the said County”.253 This house of correction would be built pursuant to powers in a public general Act passed in 1823254 and those powers already contained in the 1821 local Act.255

15. The 1827 Act further provided that the cost of purchasing a site in “Beccontree” for the new house of correction, of building the institution, and of altering, enlarging and repairing other gaols within the county should be defrayed from a further sum (“not exceeding in the whole forty-five thousand pounds”)256 which would be raised by imposing a supplementary county rate.257 The justices were also authorised to create a cordon sanitaire around the Springfield gaol by purchasing up to three acres of land which would be used so as “to prevent the erecting of buildings which might be found inconvenient to the said new erected gaol”.258

16. The 1827 Act expressly applied to its present purposes (more specifically, the powers of acquisition and resale of land and buildings) all the powers contained in

250 The 1821 Act, s.32. 251 7&8 Geo.4 c.x (1827), preamble. 252 7&8 Geo.4 c.x (1827), being “An Act for enabling the Justices of the Peace for the County of Essex to raise Money for defraying certain Expences incurred under an Act, passed in the First Year of the Reign of His present Majesty, intituled An Act for building an additional Gaol for the County of Essex, and for enlarging, improving, and altering the existing Prisons for the same County; and for amending the said Act, and for extending the Powers thereof, and for other Purposes relating thereto”. 253 The 1827 Act, preamble and s.1. 254 4 Geo.4 c.64 (1823) (“the 1823 Act”), being “An Act for consolidating and amending the Laws relating to the building, repairing, and regulating of certain Gaols and Houses of Correction in England and Wales”. 255 The 1827 Act, preamble. 256 This expression seems to suggest, in its context, that the justices were being authorised to raise a further £45,000 over and above the £40,000 previously sanctioned. The 1827 Act, s.11 (see below) speaks of the various purposes mentioned in this Act being assessed for rating “so as the whole of such assessments [for the purposes] shall not exceed the sum of forty-five thousand pounds”. 257 The 1827 Act, preamble and s.1. Each “purpose” was to be assessed in a specific sum, and the cumulative assessment would then be rated (by the justices sitting in general or quarter sessions) proportionately on towns, parishes and so on, and collected in accordance with the statutory law relating to county rating. No rate in any one year on any one property was to exceed 2d. in the £: the 1827 Act, s.11. 258 The 1827 Act, s.2.

111 the 1821 Act which related to purchase and resale; those powers were to be construed “mutatis mutandis”.259

17. In order to fulfil its purpose, the 1827 Act authorised (in broad terms) the following steps: (a) the purchase (freehold or leasehold) of any land and buildings by the county justices which it seemed appropriate to acquire in order to erect the new house of correction (together with ancillary buildings and facilities), or to extend any other gaol or house of correction in the county pursuant to powers contained in the 1823 Act (see above);260

(b) where persons or bodies had legal incapacity to sell or convey land, the payment into the Bank of England of the purchase moneys (to be applied by direction of the Court of Exchequer), and (by virtue of the 1821 Act) the power to effect transfer of title;261

(c) where a landowner refused to accept payment, or was not able to make good title, or was unable to be traced, the justices could lawfully effect transfer of title by paying the moneys due into the Bank of England (subject to control or disposition by the Court of Exchequer);262

(d) the raising of sufficient moneys for the purposes of the 1827 Act by assessing the sum or sums required (by the justices sitting in general or quarter sessions), and levying a county rate by precepting proportionately on every town, parish and the like within the county;263

259 The 1827 Act, s.4. 260 The 1827 Act, ss.1, 4. Purchase of land or buildings under the 1827 Act was deemed to be a purchase under the 1823 Act: the 1827 Act, s.3. 261 The 1827 Act, s.5 (and the 1821 Act, s.5). Section 5 of the 1827 Act relates to purchase moneys of £200 or above; similar arrangements (but with less court intervention) are set out for purchases valued at less than £200: ibid., ss.6, 7. 262 The 1827 Act, s.8. There is a statutory rebuttable presumption that the person in possession of the relevant land has lawful title: ibid., s.9. 263 The 1827 Act, s.11. No rates in any one year were to exceed 2d. in the £ on any single rated property: ibid., s.11. If the aggregate sum raised (not to exceed £45,000) was spent on the various statutory purposes, but a surplus remained, that surplus would be transferable to the County Stock: ibid., s.13.

112 (e) the maintaining and authentication of annual accounts showing income and expenditure under the Act’s provisions;264 and

(f) affording a right of appeal, to quarter sessions, to any person who believed they had been overcharged or was otherwise aggrieved by the operation of the legislation.265

Status of the 1827 Act 18. It was provided in the 1827 Act that nothing in that Act was to repeal or interfere with any powers contained in the Acts of 1823 or 1821, “except so far as may be necessary to give effect to the powers and provisions contained in this [the 1827] Act”.266

19. The whole of the 1827 Act may now be repealed on the basis that its provisions (which related principally to the erection of a house of correction) have become redundant.

Archive-based history 20. The county gaol for Essex appears to have been rebuilt in Chelmsford in 1777 in Moulsham Street.267

21. It was superseded by a new gaol (opened by 1828, and extended in 1848), sited about a mile from Chelmsford town centre, at Springfield Hill. This gaol (at 200 Springfield Road) continues to be used by HM Prison Service as a prison for category B local offenders and as a young offender institution.268

22. The former gaol, and adjoining house of correction, sited at Moulsham Street were used to accommodate female prisoners and debtors, for whom there was no accommodation in the 1828 Springfield Gaol. After the Springfield Gaol was extended in 1848 (and the female prisoners and debtors transferred to it), the Moulsham Street buildings were emptied and sold for demolition.269 Those vagrants

264 The 1827 Act, s.15. Ancillary rating provisions are contained in sections 17-19. 265 The 1827 Act, s.16. 266 The 1827 Act, s.20. 267 www.oldtowns.co.uk/Essex/chelmsford.htm; www.bbc.co.uk/essex/360/prison.shtml; and information kindly provided (for both the Chelmsford and the Becontree sites) by archivists in the Essex County Record Office. 268 www.hmprisonservice.gov.uk/prisoninformation/locateaprison. 269 The Chelmsford gaol and house of correction were still in existence in 1837: see Second Report of the Inspectors appointed under the provisions of the Act 5&6 Will 4 c.38 [1835], To visit the Different

113 and paupers who had been accommodated in the adjoining house of correction were transferred in 1838 to a new Union Workhouse in Wood Street, Chelmsford (leaving the former house of correction redundant).270 Between 1848 and 1859 the original gaol site was cleared, and an armoury, depot and parade ground were constructed on the land.271

23. The position in Becontree272 was similar. Local quarter sessions approved the purchase of land for construction of a new house of correction in 1828.273 It was built at Little Ilford between 1829 and 1831 (replacing the previous house of correction at North Street, Barking, built in 1791-92).274 The Little Ilford house of correction was reorganised in 1860 to take prisoners on remand and those serving short-term sentences. It closed in 1878 and was demolished soon afterwards.275

24. Houses of correction (as separate institutions) were abolished throughout England and Wales by the Prison Act 1865.276

Extent 25. The 1772, 1821 and 1827 Acts apply locally only within the county of Essex, in England.

Consultation 26. The Home Office, HM Prison Service and Essex County Council have been consulted about this repeal proposal.

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Prisons of Great Britain” (1837), pp. 300-322 (Essex Springfield County Gaol), pp. 322-332 (Chelmsford County Gaol and House of Correction). 270 The new building housed 400 paupers, and replaced a workhouse originally sited in New Street, Chelmsford. 271 White’s Essex Directory (publ. 1848); Hilda Grieve The Sleepers and the Shadows, Vol. 2: From Market Town to Chartered Borough 1608-1888. 272 The spelling of “Beccontree” has since changed to “Becontree”. 273 Sessions papers (Essex Record Office) Q/SBb 492 (1828) including orders for plan of new building and for purchase of land. 274 Victoria County History of Essex, Vol. 5, pp.243, 244. 275 Victoria County History of Essex, Vol. 6, p. 164. 276 Prison Act 1865, ss.4, 56 (which was later repealed by the Prison Act 1952, s.54(2), sch 4, pt I). The 1865 Act formally amalgamated gaols and houses of correction in a single institution, the “prison”.

114 COUNTY GAOLS GROUP 7 - GLOUCESTERSHIRE ______Reference Extent of repeal or revocation ______21 Geo.3 c.74 (1781) Sections 1 to 40, 64 to 75, (Gloucester Gaol Act) and Schedule.

25 Geo.3 c.10 (1785) The whole Act. (Gloucester Gaol Act)

53 Geo.3 c.clxxx (1813) The whole Act. (Tewkesbury Gaol Act) ______

21 Geo.3 c.74 (1781) (Gloucester Gaol Act 1781) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout the country) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.277 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.278 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. This repeal note deals with the underpinning legislation for three separate penal institutions: (a) the city gaol for the city of Gloucester;

(b) the county gaols and houses of correction for the county of Gloucestershire; and

277 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols.Both the 1698 Act and the 1784 Act were later repealed by the Gaols, etc. (England) Act 1823 (4 Geo.4 c.64), except insofar as they applied to the penitentiary at (amongst other places) Gloucester. The Gloucester penitentiary was not a designated gaol or house of correction (see the 1823 Act, ss.1, 2, 76).

115 (c) the town gaols and house of correction for the borough of Tewkesbury.

3. By the late 18th century, the mayor and common council of the city of Gloucester (which city also had county status) had become concerned to replace the common gaol of the city for several reasons. First, the gaol was sited so that it straddled “one of the principal streets”, thereby causing obstruction to the free passage of wagons, carriages and their passengers; and, secondly, given the age of the building, it was “otherwise very inconvenient and incommodious” and had “gone to decay”.279 The city council needed authority to build a new city gaol “in some convenient and healthy situation” within the city boundary, and at the same time to demolish three of the city’s gateways (and adjoining buildings) to facilitate the movement of traffic.280

4. In order to fulfil its purpose, and more particularly that relating to the new city gaol, the 1781 Act authorised (in broad terms) the following steps: (a) the appointment of a number of commissioners, who would be responsible for overseeing the building of the new gaol, demolishing the gateways, and acquiring the parcels of land necessary for the development;281

(b) the rubric for the conduct of commissioners’ meetings;282

(c) the appointment of paid officers to facilitate execution of the Act’s purposes, and the mechanisms for holding officers to account;283

278 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act 1758) and in 1791 by 31 Geo.3 c.46 (Gaols Act 1791). 279 Preamble to 21 Geo.3 c.74 (1781) (“the 1781 Act”), being “An Act for erecting a new Gaol, and for removing certain Gateways, in the City of Gloucester; and for amending the several Acts passed for the Maintenance and Support of the Poor of the said City, and lighting, paving, and regulating the Streets there”. 280 The 1781 Act, preamble. The three gateways were sited at Upper Northgate, Lower Northgate and Southgate. They were each deemed too “low and inconvenient”: ibid. 281 The 1781 Act, s.1. Sections 2-6, 10 and 11 set out the manner by which commissioners were initially to be nominated or elected (for example, by parish meeting), their qualifications for office, and the mechanism for the appointment of replacement commissioners. 282 The 1781 Act, ss.7-9. This covered election of chairman, use of the casting vote, quorum for meetings, public notice of meetings, and so on. 283 The 1781 Act, ss.12, 13.

116 (d) authorising the commissioners to negotiate for, and acquire, the parcels of land and buildings which they “adjudge necessary for the purpose of erecting the said intended gaol”, and to undertake the street-widening works;284

(e) providing a mechanism for the transfer of land where the owner had legal incapacity or where the owner failed (or refused) to agree a purchase price or to transfer good title;285

(f) empowering the commissioners to build on acquired land “a convenient gaol for the confinement of criminals, debtors, and others”, together with a gaoler’s residence and ancillary buildings;286

(g) authorising (after relocation and re-housing of the prisoners) demolition of the existing gaol and salvage of the materials, either for re-use in construction of the new gaol or for sale (and application of the proceeds towards the project);287

(h) empowering the commissioners to raise the necessary moneys by borrowing up to £2,100, with capital repayment within seven years secured on the local rates;288

284 The 1781 Act, s.14. The power to acquire land (as set out in this section) was limited initially to acquisition by agreement. The parcels of land to be acquired were described in the schedule to the Act. They included houses and gardens at the Southgate (and in Lower Southgate Street), together with the Northgate and existing city prison (in Upper Northgate Street). These parcels were to be supplemented by the acquisition of such other houses and lands “near or contiguous to” the scheduled properties as may be thought “necessary”: ibid., s.14. However, none of “the money to arise by virtue of this Act” was to be applied towards purchasing Northgate, the city prison, Lower Northgate or Southgate: ibid., s.75. 285 The 1781 Act, ss.15-18. Where the parties failed to agree a purchase price, the value was to be ascertained by “a jury of twelve indifferent men of the said city of Gloucester”: ibid., s.16. On payment of the ascertained purchase money, freehold title was deemed to vest in the commissioners free of all encumbrances, and the commissioners were entitled to take possession. Separate provision was made for the taking of land subject to mortgage or tenancy by the giving of six months’ written notice (with power to take possession in default by issue of a “precept”, ie. a warrant): ibid., ss.19, 20. 286 The 1781 Act, s.21. Once operational the new gaol was to be designated “a publick and common gaol for the said City of Gloucester, and County of the same City” (to be managed by the city sheriffs), and it was to be maintained in the same manner as the previous city gaol: ibid. 287 The 1781 Act, s.22. 288 The 1781 Act, s.24. Payment of interest on the loan was to be effected by levying an annual or quarterly rate on each of the parishes both within and without the city bounds, the amount to be determined by the annual rateable value of the constituent properties.(This power did not, however, extend beyond the county of the city of Gloucester: ibid., s.25). The relevant churchwardens and overseers of the poor were to undertake collection: ibid., s.24. The rate was also to cover certain poor relief costs which would fall on the county stock for the city: ibid., s.30. Sections 28 and 29 of the Act purported to extend previous legislation (4 Geo.3 c.60 (1763) (Gloucester Poor Relief and Lighting Act 1763), now repealed) which had failed to provide that those places which lay outside the city, and fell within the county of Gloucester(shire), but which traditionally had contributed towards the city rate,

117 (i) providing an appeal mechanism for those persons who believed themselves unfairly assessed or rated (and laying down limitation periods for proceedings);289 and

(j) providing for the defraying of the costs of promoting the 1781 Act (and a previous Bill).290

5. In addition to the powers relating to the new gaol, the 1781 Act contained a miscellany of powers relating to other (but unconnected) municipal governance and town improvement matters, such as: (a) sanctions for non-attendance at meetings, or failure to act, by poor relief guardians;

(b) street lighting arrangements (and rating collection);

(c) cleaning and paving of streets (including extension of paving), together with removal of street nuisances (and rating collection);

(d) parochial ownership of the soil in streets;

(e) prohibiting the slaughtering or dressing of livestock in any building fronting the various principal streets of the city;

(f) prohibiting the exposing for sale of livestock (except pigs) in any of the principal streets;

(g) requiring provision of gutters and rainwater down-pipes for properties sited on the principal streets (and providing default powers);

(h) regulating the construction of party walls by prescribing minimum standards;

should continue so to contribute (and for this purpose would fall within the jurisdiction of the city justices and guardians of the poor). 289 The 1781 Act, ss.31-33, 65, 66 and 73. The Act also laid down much mechanical detail relating to giving of evidence, non-attendance of witnesses, publication of the rates, parish provision for illegitimate children and the mentally incapable, levying distress, and the annual closing of accounts by the mayor and city aldermen (for the city’s county stock) and by the guardians of the poor (for the workhouse): ibid., ss.34-40, 69. 290 The 1781 Act, s.64. The costs were to paid from the city’s “vagrant money or poor’s rates”: ibid.

118 (i) regulating the muzzling and freedom to roam of dogs;

(j) retrospective levying of paving charges on empty properties fronting streets;

(k) requiring employed scavengers to remove refuse and ashes from houses by cart, and to give warning by ringing a bell; and

(l) requiring the appointment of properly qualified city surveyors.291

Status of the 1781 Act 6. The 1781 Act had a dual purpose: to provide for the rebuilding of the city gaol, and to provide for a range of city governance and improvement matters.

7. As indicated below, the replacement city gaol seems to have been built in Southgate Street under the terms of the 1781 Act. Notwithstanding the building and later extension of a new (county) gaol, the city gaol did not close until 1858.

8. The separate county gaol (situated on the site of the castle) was built in 1791 and substantially rebuilt in 1840. Today it functions as HMP Gloucester.

9. The remaining town improvement provisions in the 1781 Act - although probably superseded by miscellaneous local government statutory provisions, culminating in modern public health and highways legislation - are omitted from the present repeal proposals.292

10. Sections 1 to 40 and 64 to 75 of, and the schedule to, the 1781 Act have become spent, and may now be repealed.

291 These various non-gaol related functions were set out in the 1781 Act at sections 41 to 63 (and are not presently proposed for repeal). In section 47 of the 1781 Act there is reference to part of 17 Geo.3 c.68 (1777) (Maismore Bridge, Severn Act 1777, referred to in the 1781 Act as the “Paving Act”, which provided for the compulsory paving of four principal streets in the city) and, more particularly, to the failure by parish surveyors to make a rating contribution to the cost of obtaining the 1777 Act. The 1777 Act has been repealed in part (by the Maismore Severn Bridge Act 1813 (c.v), s.1), but those sections which refer to street paving are still extant. 292 Minor repeals of town improvement provisions in the 1781 Act had already been effected by the Local Government Supplemental Act 1865 (No.3) (c.41), Sch confirming a provisional order.

119 25 Geo.3 c.10 (1785) (Gloucester Gaol Act 1785) Background and purpose 11. Although authority to rebuild the gaol serving the city of Gloucester had been given to the city council by the 1781 Act, that authorisation did not extend to gaol provision for the surrounding county area.

12. The county justices were concerned that they had insufficient gaol accommodation in the county of Gloucestershire for prisoners convicted of “transportable crimes” which accommodation would be equipped to keep them to “hard labour”.293 In 1779 national legislation had been passed authorising the construction by the state of two centralised “penitentiary houses” which were to serve the various “circuits and places” within England and Wales for this purpose.294 In the meantime it was anticipated that prisoners subject to transportation would be committed to houses of correction or “other proper places, within each county” which would be temporarily designated penitentiary houses.

13. By 1785 the two national penitentiary houses had not been built, and nor had a house of correction within the county been converted or fitted-out. It had now become a matter of “great publick utility” that a house of correction be built for use as a penitentiary house for “the small proportion of offenders which will be receivable therein from the circuit to which the county of Gloucester belongs”, together with “a new county gaol, and several houses of correction”.295

14. The 1785 Act was designed (in broad terms) for the following purposes: (a) the designation of the county justices as commissioners charged with building, and empowering them to build, a new gaol, a penitentiary house and “certain new houses of correction” for the county;296

293 Preamble to 25 Geo.3 c.10 (1785) (“the 1785 Act”), being “An Act for building a new Gaol, a Penitentiary House, and certain new Houses of Correction, for the County of Gloucester, and for regulating the same”. 294 19 Geo.3 c.74 (1779) (Transportation, etc. Act 1779), referred to in the preamble to the 1785 Act. The 1779 Act was repealed by the Statute Law Revision Act 1871 (c.116), s.1 and sch. It appeared that the 1779 Act set a quota for referred prisoners for each county. 295 Preamble to the 1785 Act. The building of the new county gaol and houses of correction was seen as “absolutely necessary”: ibid. Although in 1823 Gloucestershire was designated a county where “one common gaol” and “at least one house of correction” were to be maintained (and the city of Gloucester a place where one gaol and one house of correction were to be maintained), the continuing operation of “the penitentiary at Gloucester” was also preserved: see the Gaols, etc. (England) Act 1823 (4 Geo.4 c.64), ss.2, 76 and sch A. The 1823 Act consolidated and amended earlier national legislation on gaols and houses of correction in England and Wales.However, its repeal provisions relating, amongst other things, to penitentiaries were specifically expressed not to extend to Gloucester’s penitentiary: ibid., ss.1, 76. 296 The 1785 Act, s.1.

120 (b) providing the justices with power to appoint replacement commissioners and setting down eligibility criteria;297

(d) providing the commissioners with power to appoint appropriate officers (with remuneration) to facilitate execution of the 1785 Act, and setting out the terms of their service (and, more particularly, the role of their clerk);299

(e) requiring the commissioners “with all convenient speed, after the passing of this Act” to identify a suitable site within the city of Gloucester for co-locating and building the three new institutions, together with additional sites elsewhere in the county for the construction of four more houses of correction which would be “commodiously situate” (having particular “regard to the airiness, dryness, and healthiness of the situation, the accommodation of water, the avoiding all ill smells, and being over-looked”);300

(f) authorising the commissioners to purchase the freeholds of the necessary sites so that the buildings could be erected with sufficient clear space on their perimeter;301

(g) providing mechanisms for the transfer of land vested in persons or bodies with legal incapacity (including settling disputed valuation by

297 The 1785 Act, ss.2-4. 298 The 1785 Act, ss.5, 6. The commissioners were required to maintain minutes of their proceedings (which were to be available for public inspection), and were empowered to appoint sub-committees to “superintend, regulate, and controul”, and “see to the due performance” of, contracts for the construction work: ibid., s.6. 299 The 1785 Act, ss.7, 8. 300 The 1785 Act, s.9. The various institutions were to be sited away from the centres of “populous” towns, but sufficiently close to a town for the purposes of “accommodation and security”: ibid. One of the five new houses of correction was to be located as near to the county hall in Gloucester as was compatible with the various requirements.The locations were only to be deemed approved when confirmed by a second meeting of the commissioners (and the rights and privileges of the borough of “Tewksbury” in this process were specifically reserved): ibid., s.10. 301 The 1785 Act, s.11. The land was to be conveyed to the county’s custos rotulorum (keeper of the rolls), acting as a corporation sole, and to be held as part of the county of Gloucester. The cordon sanitaire was to extend for 15 yards from the institutions’ boundary walls.

121 jury)302 and providing for the dealing with land owned by the King “in right of his Crown”;303

(h) authorising the commissioners to empower their “agents or workmen” to remove building materials from “any common or waste land, river, or brook” near to the building sites (for free) or from other owned lands (on payment of compensation)304, and to enter lands and divert watercourses so as to supply the gaol complex with a constant and uninterrupted supply of fresh water;305

(i) providing for the creation of a public footway and a development-free zone around the perimeter of the gaol complex;306

(j) authorising (and requiring) the commissioners to erect without delay, and fit-out, a new gaol, penitentiary house and house of correction “contiguous to each other” and surrounded by a detached outside wall, together with four houses of correction on other sites;307

302 As provided for in 24 Geo.3 Sess.2 c.54 (1784). 303 The 1785 Act, ss.13, 14. King George III owned the freehold of Gloucester castle which, in 1785, housed the county gaol. The castle land was partly in the possession of the then Constable of the castle (Benjamin Hyett) “in right of his office”, and partly in possession of trustees, held on lease. The Act permitted the King, on application by the commissioners, to make a grant of fee simple (freehold) to the county’s custos rotulorum (as trustee) of such part of the castle and its grounds as might be required for building the new gaol, penitentiary house and house of correction (and the commissioners would also then purchase the Constable’s interest): ibid., s.14. Once transferred, the land and buildings were not to be liable for increased rates or rent or for any house or window tax, “any Act or Acts of Parliament to the contrary notwithstanding”: ibid., s.15. 304 The 1785 Act, s.16. Any pits or quarries created were to be properly filled up or fenced off afterwards for reasons of public safety: ibid. Ownership of materials used in the building operation was to vest in the commissioners: ibid., s.25. 305 The 1785 Act, s.17. New watercourses were to vest in the custos rotulorum as trustee. Workmen were also to be authorised, as need arose, to enter upon such lands “for the purpose of cleansing, scouring, repairing, or mending such cut, channel, drain, watercourse, reservoir, or other works”: ibid. The commissioners were required to pay compensation for any damage caused to landowners, which could be settled by the county justices in quarter sessions if the amount were disputed or the landowner refused to treat or was absent or had legal incapacity: ibid., s.18. 306 The 1785 Act, ss.19, 20. The purpose of the prohibition on development (including depositing dung, hay, straw, and rubbish, or keeping swine, or allowing trees to grow) across a 15 yard zone was to create a cordon sanitaire around the gaol to secure “a free circulation of pure and wholesome air, and thereby preventing the gaol fever, and other malignant diseases”: ibid., s.20. 307 The 1785 Act, s.21. The commissioners were authorised to enter into contracts for the works of new- build and of demolishing existing houses or buildings: ibid. In ensuring that the different institutions were fit for their purpose, the commissioners were to have regard to requirements relating to the need for separation in gaol of prisoners by gender and by category (debtors, felons, remand prisoners), for the provision of solitary confinement, and the provision of a chapel, infirmary (two or more rooms, pursuant to statute 14 Geo.3 c.59 (1774)), baths, suitable workplaces, airing grounds, “sufficient offices and apartments” for the gaoler and his staff, and the provision of a “lazarette” for medical examination and washing of incoming prisoners and their clothing. Similar requirements pertained to the houses of correction (pursuant to statutes 22 Geo.3 c.64 (1782) and 24 Geo.3 Sess.2 c.55 (1784)) and the penitentiary (to be “adapted to promote the purposes of punishment by solitude and labour”): ibid., ss.22-24.

122 (k) providing for the temporary holding of prisoners in appointed “places of confinement” in the county, the designating of the new gaol (on completion) as the common gaol for the county (with responsibility for upkeep to be consistent with arrangements for other county gaols in England), and the transfer to the new gaol of all prisoners in the county sheriff’s custody when given notice of fitness to receive;308

(l) providing for the county justices to supervise the operation of the five new houses of correction309, including making regulations governing employment and punishment of prisoners, transferring existing prisoners, decommissioning the former houses of correction, and repairing and maintaining the new institutions in accordance with “the laws and statutes of the realm”;310

(m) providing for the county justices to manage the penitentiary house for the county as soon as completed and operational;311 to appoint a salaried governor and other necessary staff;312 and to make byelaws for the classification, segregation, maintenance, employment and treatment of prisoners (subject to the provisions of existing legislation relating to transportable offenders, and also to their not depriving any existing convict of statutory allowances for maintenance or support to which he or she was previously entitled);313

308 The 1785 Act, ss.27, 28. 309 In accordance with 17 Geo.2 c.5 (1743). 310 The 1785 Act, s.29. The county justices were authorised to appoint “an experienced surgeon or apothecary”, on a salary, to attend the houses of correction and the new penitentiary, and to report back at each sessions on the “state of the health of the prisoners under his care”: ibid., s.30. 311 The 1785 Act, s.31. The clerk of the peace was required, on completion of the penitentiary, to issue a certificate from quarter sessions to the justices of assize as to its readiness for the reception of prisoners (being those convicted and sentenced to imprisonment with hard labour, or granted a royal pardon conditioned with imprisonment and hard labour): ibid. The penitentiary was also to be used as a holding gaol for prisoners convicted and sentenced to transportation, pending such transportation (although this did not preclude the sending of such prisoners to one of the national penitentiary houses which were to be created under the Act of 19 Geo.3 c.74 (1779), subject to not exceeding the county’s allocation): ibid., ss.32, 33. Transfer of a hard labour prisoner by the sheriff to a penitentiary house was to be certified by the governor to the clerk of the peace (and the certificate would be held with the sessions records): ibid., s.34. 312 The 1785 Act, s.43. In fixing a salary for the “governor or taskmaster” the justices were to have regard to the “quantity of work done and performed in such penitentiary house” as an incentive to the post-holder “to see that all persons under his custody be regularly and profitably employed”: ibid. The appointee was to be liable (by forfeiture of deposited security or fine) for any negligence or misbehaviour in office (in the same manner as the governor of a house of correction under 7 Ja.1 c.4 (1609) and 17 Geo.2 c.5 (1743)): ibid. The governor and his assistants were to have the same powers over prisoners as a sheriff or as a gaoler (except as to more serious disciplinary offences which were to be referred to the visiting justices for determination): ibid., s.55. 313 The 1785 Act, s.44. The legislation on transportation was 19 Geo.3 c.74 (1779). The byelaws had to be confirmed by the justices of assize for the county.

123 (n) authorising the commissioners to defray the cost of building the new gaol complex and houses of correction (a) by borrowing (secured by mortgage on the county rates)314, or (b) by sale of annuities, to raise such sums as appeared necessary “at legal or lower interest”;315 and to cover the costs of maintenance, repair and general running from the county rate (as provided for by the county justices and the county treasurer) in line with the statutory arrangements for houses of correction in the county;316

(o) requiring the promulgation of byelaws for the classification and segregation of prisoners and regulation of prisoners’ behaviour within the county gaol;317

(p) empowering the county justices to provide “a stock of such materials as they find convenient for the setting poor prisoners on work” in order that their lack of employment did not lead to debauchery and their being “instructed in the practice of thievery and lewdness”;318 and enabling the justices to subsidise from the county rate those poor prisoners who lack the means to provide themselves with such food and clothing on their release from the county gaol as is necessary to provide “the support of health”;319

314 The county rates were to provide up to £2,000 each year for the purpose of servicing the interest payments on the sums borrowed and payment of the annuities as described below: ibid., s.37. 315 The 1785 Act, s.35. The moneys were to be raised through loans by mortgage, to be taken in tranches (each not to exceed £100), or by sale on an annuity basis, spread over a maximum of 25 years (and minimum of 13) “or for the life of the purchaser”. The forms of loan mortgage and annuity charge were prescribed, and the mortgages and annuities could be assigned by their owners to any third party, so long as the assignment was registered: ibid., ss.35, 36 and sch. Moneys were only to be raised by annuity sale after the commissioners had given public notice of their intention to seek bids: ibid., s.36. Sections 37-39 of the Act set out the mechanics for paying interest on the loans and discharging the annuities, and prescribed how the annual sum of £2,000 was to be applied (ie. in defraying costs of obtaining the 1785 Act, paying interest and annuities, servicing the cost of gaol construction and, finally, in creating a sinking fund). 316 The 1785 Act, s.47. 317 The 1785 Act, s.40. The byelaws were designed to establish and enforce “a proper police” within the new gaol, and their manner of enactment had to mirror that laid down in 32 Geo.2 c.28 (1758), a national Act, which regulated the handling of prisoners arrested and held for indebtedness in county- based gaols. 318 The 1785 Act, s.41. The profits arising from the poor prisoners’ labours were to be utilised for their “relief” (and, as a consequence, to mitigate the cost falling on the parish or parishes). This provision was designed to extend limited powers in this regard contained in the earlier, and now repealed, 18&19 Cha.2 c.9 (1666) (cited in the 1785 Act as 19 Cha.2 c.4 [Ruffhead’s edition]). 319 The 1785 Act, s.42. This provision built on 14 Eliz.1 c.5 (1572) relating to vagabonds and relief of the poor, and on 32 Geo.2 c.28 (1758) dealing with debtors’ imprisonment, both now repealed.

124 (q) requiring the county justices annually to appoint visiting justices for the gaol, penitentiary and houses of correction;320 and

(r) dealing with a range of miscellaneous matters,321 including providing an appeal mechanism (to quarter sessions) for any person who “shall think himself or herself aggrieved by any thing done in pursuance of this [1785] Act”.322

Status of the 1785 Act 15. The 1785 Act focussed solely on provision of gaol, penitentiary and houses of correction for the county of Gloucestershire (as distinct from the city of Gloucester).

16. The purpose of this Act was to authorise the building and subsequent operation of the various penal institutions within the county. Apart from reference to a national Act passed in 1779 relating to the arrangements for transportation of felons (itself now repealed), the 1785 Act stood alone.

17. As indicated below, the county gaol in Gloucester - and probably the penitentiary - had been erected at the castle by 1791 (and the adjoining house of correction by 1816). That gaol now operates as a local prison under the aegis of HM Prison Service. The house of correction has since disappeared.

18. The whole of the 1785 Act has become spent, and may now be repealed.

53 Geo.3 c.clxxx (1813) (Tewkesbury Gaol Act 1813) Background and purpose 19. By 1813, the Borough Council for the town of Tewkesbury had formed the opinion that the town gaol (designated the common gaol within, and serving, the

320 The 1785 Act, s.48. The appointed visitors were required to visit and inspect their relevant prison at least three times each quarter, and to report at each quarter sessions on their findings as to the state of the buildings, conduct of officers, and condition of the prisoners, and on any remedial steps they had taken. This did not preclude other justices from visiting and examining a particular institution if need arose, and reporting on any abuses found: ibid. 321 The 1785 Act, ss.49-60. These included prohibiting the sale of liquor in the new gaol or penitentiary house; regulating fees chargeable by gaolers; providing power to award an annuity (funded from the county rate) to any diligent gaoler who ceased through ill-health to be capable of performing his duties (but applying a complete prohibition on the appointment of women to the office of gaoler in the county gaol: ibid., s.51); applying the provisions of 12 Geo.2 c.29 (1738) to the raising of moneys for the purposes of the 1785 Act from the county rates; and applying all other national provisions to the building and running of the new institutions and the transfer of prisoners. 322 The 1785 Act, s.56. All legal proceedings were to be subject to a six months’ commencement limitation period: ibid., s.59.

125 borough and parish of Tewkesbury) was unfit for its continuing purpose of holding prisoners because: (a) it was “inconveniently situated, too small, and not properly constructed”;

(b) through age it had become “very ruinous and gone to decay”;

(d) it was “prejudicial and dangerous to the health of the prisoners confined therein” through lack of “outlet or airing ground” and of “fit and proper conveniences”.323

20. In consequence, the local office-holders decided that the solution was to build a new town gaol, house of correction and penitentiary house “with proper buildings and accommodations, on some open, airy, and convenient spot or piece of ground” in the borough.324

21. In order to fulfil its purpose, the 1813 Act authorised (in broad terms) the following steps: (a) that various office-holders and named individuals be appointed as commissioners with responsibility to carry the Act into effect;325

(b) that meetings of commissioners be held in accordance with the Act’s rubric;326

323 Preamble to 53 Geo.3 c.clxxx (1813) (“the 1813 Act”), being “An Act for erecting a new Gaol, House of Correction, and Penitentiary House, in the Borough of Tewkesbury, in the County of Gloucester”. 324 The 1813 Act, preamble. 325 The 1813 Act, s.1. The Act also made provision for the selection and appointment of replacement and of additional commissioners; and laid down the qualifications for holding a commission appointment: ibid., ss.2-5. 326 The 1813 Act, ss.6-12. The Act covered the mechanics of calling commissioner meetings, appointing the chairman (and handling of the casting vote), and the taking and keeping of signed minutes. 327 The 1813 Act, s.13. Officers were to be held to account for all moneys handled by them (and a default procedure was laid down): ibid., s.14. The appointed clerk was to represent the commissioners in any legal proceedings (and to be indemnified against personal liability for costs or damages): ibid., ss.15, 16.

126 (d) that the commissioners should “with all convenient speed after the passing of this Act” identify a suitable site within the borough for building a new gaol, house of correction and penitentiary house;328

(e) that the commissioners be authorised to contract for the purchase of such land (and all houses and buildings on it or within 15 feet of the intended boundary wall) so as to build the gaol, house of correction and penitentiary house, and to leave an undeveloped zone (for free circulation of air) around it;329

(f) that where owners were bodies or individuals with legal incapacity, they should be enabled to sell and convey their interests to the borough; and where owners failed or refused to negotiate on the sale price, a jury should be called to hear evidence and to assess a value so that compensation could be paid (and land title transferred);330

(g) that the commissioners should build on the site, once purchased, “a convenient new common gaol, with a penitentiary house and house of correction, and sufficient outcourts and outlets thereto respectively” plus fittings and furnishings (to confine criminals, debtors and others), together with an integral gaoler’s house; and that they should be empowered to employ such workmen as were necessary on the project;331

(h) that the new gaol should be designated the common gaol for the borough and parish of Tewkesbury (and, on completion, it should be

328 The 1813 Act, s.17. The rather exacting criteria for selection were that the site should be commodious, have a situation which offered “airiness, dryness, and healthiness” and a proper water supply, and which avoided “all ill smells”. It also had to be sited ”at a proper distance” from the town centre, and yet within reasonable proximity to the town hall: ibid. Once identified, the site had to be confirmed at a second commissioners’ meeting: ibid., s.18. 329 The 1813 Act, ss.20, 56. The Act specifically prohibited the demolition of houses without the owners’ consent: ibid., s.19. 330 The 1813 Act, ss.21-23. Where compensation had been assessed it was then lawful for the commissioners to pay the assessed sum into the Bank of England (in the name of the Chancery Court) or - for sums below £200 - into the hands of trustees, and to take possession and effect transfer of title (to the borough’s bailiffs). The same applied where the owner was missing, or failed to make good title or execute the conveyance or accept the purchase moneys: ibid., ss.24-30. Likewise, mortgagees and tenants could be dispossessed on six months’ notice: ibid., ss.31, 32. 331 The 1813 Act, s.33. The component functions were all to be housed in a single building under one roof. The building materials were to be vested in the commissioners, who could bring criminal proceedings for any theft of, or damage to, such materials: ibid., s.34. Likewise, any person causing the new gaol buildings to be damaged could be convicted of a felony: ibid., s.35.

127 handed to the borough’s bailiffs who would maintain and manage it);332

(i) that the existing gaol (vested in the Tewkesbury borough council) should, on transfer of its prisoners, be demolished by the commissioners, and the site and materials be used for street-widening or churchyard-enlargement;333

(j) that the new house of correction should, on completion, be handed to the borough’s justices, acting in general quarter sessions, to manage and regulate (although the borough’s bailiffs would be responsible for appointment of the keeper);334

(k) that the commissioners be authorised to raise the necessary moneys to cover the costs of building and running the gaol by assessing and levying an annual precept on the local rate (to a maximum of £3,000 for the purpose of the building project, the fitting-out of the buildings and the promotion of the 1813 Act)335, and by borrowing moneys by mortgage secured on the rates (to a maximum of £2,500) “for the more speedy and effectual carrying into execution the purposes” of the Act;336

332 The 1813 Act, s.36. The bailiffs were to be responsible for the appointment and removal of the keeper and other officers for the gaol, house of correction and the penitentiary house, and to take recognisances for good behaviour: ibid., s.58. The powers and duties of the gaol keeper(s) and of the governors of the house of correction and the penitentiary house were to be coterminous: ibid., s.60. 333 The 1813 Act, s.37. The commissioners were specifically empowered by the Act to undertake either of these functions.If any part of the site (or of the salvaged building materials) were not to be used for one of these purposes, the commissioners were authorised to effect sale and to apply the proceeds towards the present project: ibid. 334 The 1813 Act, s.38. The justices were responsible for laying down the rubric relating to the conduct of prisoners, and for ensuring that future maintenance of the institution complied with national legislation (and, more particularly, 17 Geo.2 c.5 (1743) (Justices Commitment Act 1743)): ibid., ss.38, 59. Under the latter provision the borough justices were required to make regulations for, amongst other things, “receiving, separating, classing, dieting, cloathing, maintaining, employing, reforming, governing, managing, treating, and watching all offenders and other prisoners of all descriptions” confined in the house of correction and penitentiary house (and, seemingly, in the gaol also). 335 The 1813 Act, ss.39, 40. The borough justices in quarter sessions would levy the actual rate on individual properties within the borough, and collection would be undertaken by the parochial churchwardens and overseers of the poor: ibid., s.39. Sections 41-50 set down, amongst other things, the mechanisms for recovery of rates on non-payment, on default by the collecting officers, in respect of tenants, and where arrears had accrued. 336 The 1813 Act, s.51. Each mortgage (in prescribed form) was to be in a £100 unit, repayable with annual interest added to the principal sum, and discharged in a predetermined sequence: ibid., ss.51- 53. A minimum of £400 was to be paid off each year: ibid., s.55. By section 54 of the 1813 Act, the moneys raised under the Act were to be applied to defraying the costs of promoting the Act, in servicing the interest payments on moneys borrowed, in paying for the lands to be acquired, in discharging the cost of building and fitting-out the various institutions (including the maintenance expenses), and in paying salaries and other charges.Any balance remaining was to be applied to repayment of the

128 (l) that all streets leading to the new gaol, house of correction and penitentiary house should be designated public highways and maintained accordingly;337

(m) that at their quarter sessions the justices should appoint annually two of their number to be visitors of the gaol and other institutions for the purpose of inspecting the state of the buildings, the behaviour of the officers and the treatment of the prisoners, and reporting back to the general quarter sessions on their findings;338 and

(n) that an appeal mechanism should be put in place whereby any person aggrieved by any conviction or order under the Act could seek from quarter sessions such award of “restitution, damages, and costs” as the justices deemed proper, and that time limits should apply for all legal proceedings.339

Status of the 1813 Act 22. The principal purpose of the 1813 Act was to authorise the construction and operation of a new gaol, house of correction and penitentiary for the borough of Tewkesbury, and to decommission the old town gaol. Apart from one reference to national legislation relating to the management of houses of correction (see footnote 334 above citing the Justices Commitment Act 1743, now repealed), the 1813 Act appears to stand on its own.

23. As indicated below, the new town gaol was built around 1817 to the north of the Oldbury area of Tewkesbury. The gaol appears to have been closed in 1854.

24. The whole of the 1813 Act has become spent, and may now be repealed.

principal by stages.Once the project was complete, and all the debts discharged, the powers and responsibilities of the commissioners would cease and would transfer to the borough justices: the 1813 Act, s.68. Books of accounts would be maintained throughout: ibid., ss.68, 79 and 80. 337 The 1813 Act, s.57. 338 The 1813 Act, s.61. Any abuses reported were to be considered immediately ”at the sessions at which such report shall be made”, and remedial steps taken: ibid. Gaolers had to make, at each quarter sessions, a written return on all prisoners in his charge, which return would first be examined by the visitors: ibid., ss.62, 63. 339 The 1813 Act, ss.73, 76.

129 Archive-based history 25. Down the centuries Gloucester had at least two gaols: one, a city gaol, located at the east gate until its demolition in 1778;340 the other, a county gaol, situated at the castle, near to the waterfront. The county gaol appears to have been constructed between 1782 and 1791 (at a cost of almost £35,000) on the site of the old castle.341 A house of correction was built adjoining the county gaol in about 1816.342

26. The new city gaol (a separate institution) was built in Gloucester in the 1780s pursuant to the 1781 Act. It was located in Southgate Street, south of St. Kyneburgh’s hospital (on land at the corner of Southgate Street and Kimbrose Lane).

27. The county gaol in Gloucester, sited at Barrack Square, is now in use as HMP Gloucester (within the auspices of HM Prison Service). It functions as a category B adult local prison and young offender remand centre. The wing for young offenders was added in 1971.343

28. The Gloucester city gaol closed in 1858 because of its lack of suitability in terms of size, security and sanitation. Prisoners were then transferred to the more commodious county gaol. The city gaol buildings were demolished in the early 1860s, and the site was redeveloped in 1866.344

29. In Tewkesbury, a town gaol, house of correction and penitentiary were erected in 1816 pursuant to the 1813 Act, in Bredon Road on a site north of Oldbury. The corporation of the Borough of Tewkesbury had, since 1609 or 1610, been granted power under royal charter to provide (and had provided) a local gaol.345

340 See Victoria County History, Gloucestershire vol.11, p.244 at www.institutions.org.uk/prisons/England/GLS/gloucestershire_prisons.htm. From this same source it appears that a second city prison was located at the inner north gate during the 16th century. 341 See www.institutions.org.uk/prisons/England/GLS/gloucestershire_prisons.htm. According to this source, the county gaol was designed to house hardened criminals and juvenile offenders in separate accommodation. It was later (1845-55) enlarged to hold debtors separately, and to segregate male and female prisoners.The former castle was located at a site in North Hamlet in Gloucester. 342 See www.institutions.org.uk/workhouses/england/gloucs/gloucester_workhouse.htm. 343 See www.hmprisonservice.gov.uk/prisoninformation/locateaprison. 344 See www.institutions.org.uk/workhouses/england/gloucs/gloucester_workhouse.htm and Victoria County History, Gloucestershire, vol. 11 (cited above). 345 The charter was granted by King James I: see http://archive.tewkesbury.gov.uk/about/history/index.asp. The former gaol appears to have been located at the Abbey belltower for nearly two centuries.

130 30. Tewkesbury gaol appears to have been operating at its new location up until 1853.346 It was decommissioned in 1854 and seems then to have been demolished.347

Extent 31. The 1781, 1785 and 1813 Acts apply locally only within the county of Gloucestershire in England.

Consultation 32. The Home Office, HM Prison Service, Gloucestershire County Council, Gloucester City Council and Tewkesbury Borough Council have been consulted about this repeal proposal.

(32-195-452) LAW/005/002/06 01 February 2008

346 See www.nra.nationalarchives.gov.uk/nra/searches/sidocs.asp?SIR=O93198 for details of accounts, vouchers, prisoners’ work books in the period 1816 to 1853 (held in the Gloucestershire Records Office); and also www.institutions.org.uk/prisons/England/GLS/tewkesbury_gaol.htm for the 1847/48 12th Report of Inspectors of Prisons – Southern & Western District, vol. 35 referring to the Tewkesbury Borough Gaol and House of Correction. 347 See Victoria County History of Gloucestershire, vol. 8, p.148.

131 COUNTY GAOLS GROUP 8 - GREATER LONDON (NORTH) ______Reference Extent of repeal or revocation ______7 Geo.3 c.37 (1766) Sections 4 to 10. (Thames Embankment Act)

18 Geo.3 c.48 (1778) The whole Act. (Newgate Gaol and Sessions House Act)

25 Geo.3 c.97 (1785) The whole Act. (City of London Improvement Act)

26 Geo.3 c.55 (1786) The whole Act. (Middlesex Gaol Act)

44 Geo.3 c.lxxxiv (1804) The whole Act. (London Debtors’ Prisons Act)

52 Geo.3 c.ccix (1812) The whole Act. (Debtors’ Prison for London and Middlesex Act)

55 Geo.3 c.xcviii (1815) The whole Act. (Debtors’ Prison for London and Middlesex Act)

______

7 Geo.3 c.37 (1766) (Thames Embankment Act 1766) Background and purpose 1. In the 18th century the Corporation of the City of London (“the corporation”) (acting through their Common Council) were responsible for the provision and operation of various gaols within the city, including the Newgate Gaol.

2. Throughout England county justices, who had become responsible for local gaol administration, took forward (with varying degrees of enthusiasm) a programme of gaol reform. In particular, they sought specific powers to expand and improve prison accommodation, especially where gaols had fallen into disrepair and had become a significant health hazard.

132 3. In a multi-purpose Act passed in 1766348 the corporation had been empowered, amongst other things, to rebuild the existing Newgate gaol which was “so ill-contrived as not to admit of a sufficient supply of fresh air and water, from which circumstances the same was in general unhealthy, and often visited with a malignant fever called The Gaol Distemper, the fatal effects of which had sometimes extended beyond the prison walls; and that the said gaol was so old and ruinous as to be incapable of any effectual alteration or repair”.349 The estimated cost of replacement on the same or an alternative, but nearby, site was put at £50,000.

4. The corporation sought powers, therefore, “with all convenient speed to pull down the said gaol of Newgate, and to remove, dispose of, or destroy, the materials thereof, as they should think fit (having regard to the health and safety of His Majesty’s subjects) and to build a spacious and commodious new gaol, upon or near the place where the [then] gaol [stood]”, utilising the moneys realised on sale of the materials where appropriate.350 The corporation also sought authority to improve the street access to both the new gaol (once constructed) and to the sessions house located in the Old Bailey.351

5. The new gaol was to be designated the “county gaol of and for the said City of London, and of and for the said County of Middlesex”.352 The 1766 Act empowered the corporation to build the new gaol and to acquire “such houses, lands, tenements, or hereditaments, as they shall judge fit to be purchased, removed, or pulled down” for that purpose.353 To that end, various powers were provided for the raising of the capital finance for the scheme through borrowing and levying of taxes.354

348 7 Geo.3 c.37 (1766) (Thames Embankment Act 1766) (“the 1766 Act”), being “An Act for completing the Bridge cross the River Thames, from Black-Friars, in the City of London, to the opposite Side in the County of Surry, and the Avenues thereto on the London Side; for redeeming the Tolls on the said Bridge, and on London Bridge; for rebuilding the Gaol of Newgate in the said City; for repairing the Royal Exchange within the same; [and for various other purposes relating to river embanking, paving and levying of import duties].” This Act extended powers to raise moneys (by borrowing and by imposition of tariffs) contained in earlier legislation relating to the City of London. 349 Description taken from the preamble to the 1766 Act as repeated (with minor variation) in the lengthy preamble to 18 Geo.3 c.48 (1778) (“the 1778 Act”), for which see below. 350 The 1766 Act, s.4 and the 1778 Act, preamble, referring back to the 1766 Act. The 1778 Act was “An Act for impowering the Mayor, Aldermen, and Commons, of the City of London, in Common Council assembled, to raise, upon the Credit of the Surplusses to arise out of a certain Fund, commonly called The Orphans Fund, the Sum of Forty thousand Pounds, towards discharging the Debt incurred in rebuilding the Gaol of Newgate, and a Sessions-house adjoining, and for completing the said Gaol, and building an Infirmary thereto; and other the Purposes therein mentioned”. 351 The 1766 Act, s.5. 352 The 1766 Act, s.7. The existing gaol served not only as the county gaol but also as “the general prison for smugglers and debtors to the Crown, from all parts of the Kingdom”: ibid., preamble, and the 1778 Act, preamble. 353 The 1766 Act, s.10 and the 1778 Act, preamble. 354 The 1766 Act, ss.35-44. These sections related to the raising and appropriation of moneys not only for the Newgate gaol scheme, but also for other schemes encompassed by the 1766 Act, such as

133 Status of the 1766 Act 6. The greater part of the 1766 Act is still in force.355 Only portions of the Act relate to Newgate gaol and the raising of moneys in connection with the rebuilding project.

7. Newgate gaol was closed in 1902 and subsequently demolished. The Central Criminal Court (known as the Old Bailey) was built on its site and opened in 1907.

8. That part of the 1766 Act which dealt exclusively with Newgate gaol (sections 4 to 10 inclusive) may now be repealed on the basis that its purpose (as illustrated by the historical note at paragraph 48 below) was overtaken by events, and the relevant sections have become spent.

18 Geo.3 c.48 (1778) (Newgate Gaol and Sessions House Act 1778) Purpose and background 9. By 1778 the corporation had “given up to the publick the freehold of a very large and extensive tract of ground of considerable value” to facilitate the building of “a new, spacious, and commodious gaol” (Newgate gaol) and, in so doing, had expended the capped sum of £50,000 allocated under the 1766 Act (plus further moneys, drawn from the city’s reserves, purchasing several houses in the Old Bailey “in order to make the new gaol more healthy”).356 The corporation now believed that the creation of an infirmary for the gaol “would greatly contribute to the health of the prisoners, and thereby be of great publick utility”.357 The corporation already owned a suitable site adjoining the new gaol building, but required a further £40,000 to complete the gaol, build the infirmary and pay off indebtedness to the city’s cash reserves. This additional money had to be secured before the expiry of the time limit (laid down by successive tranches of previous legislation) for the special raising of moneys by import duty.358

completing the Blackfriars river bridge, building a Thames embankment and repairing the Royal Exchange. For this reason, these sections cannot safely be repealed now within the narrow confines of the present repeal task. 355 The 1766 Act was extended by the Temple Bar Improvement Act 1811, s.16; and section 51 of the 1766 Act was repealed in part by the Corporation of London (Rating of Reclaimed Lands) Act 1920, s.2. 356 The 1778 Act, preamble. 357 The 1778 Act, preamble. 358 The import duty was levied on coals and culm coming through the port.

134 10. As a consequence of this, the corporation secured the 1778 Act, which legislation had the following as its principal purposes: (a) the lawful completion, “with all convenient speed”, of the new gaol building, and erection of the infirmary on the adjoining appropriated land;359

(b) the raising of an additional sum of £40,000 by borrowing “upon the credit of” a special fund (known as the Orphans Fund);360

(d) authorising the application of £20,000 of the additional sum towards completion of the new gaol and its infirmary, and application of the remaining £20,000 towards reimbursing the city’s cash reserves which had previously been drawn upon;362 and

(e) authorising the relevant sheriffs to move prisoners in their charge to the new Newgate gaol, even though it might not yet have been completed.363

Status of the 1778 Act 11. The whole of the 1778 Act is still in force.

12. Newgate gaol existed in various forms from 1188 onwards. Its final incarnation was completed around 1782. It was closed in 1902 and the building demolished shortly thereafter.

359 The 1778 Act, s.1. (The printed version of the 1778 Act carries only side headings and not section numbers.The section numbers used in this note have simply been assigned informally and sequentially to aid navigation through the Act’s text). 360 The 1778 Act, s.2. “Upon the credit of” appears to mean “on the security of”. Lenders were to be entitled to receive redeemable annuities at a specified rate: ibid., s.3, and were to be given written bonds evidencing their investment: ibid., s.4. 361 The 1778 Act, ss.5-9. Any deficiencies which might occur in the payment of interest were to be made good by drawing on the city’s “Chamber” (ie its corporate fund). 362 The 1778 Act, s.10. The total of £40,000 was to be utilised for these two purposes only. Any surplus which might result was to be paid into the Orphans Fund, and the City Chamberlain was to keep full accounts (for audit) of all borrowings and expenditure: the 1778 Act, ss.11, 12 and 19. The Act also laid down provisions relating to the appointment and remuneration of necessary clerks and officers to facilitate the construction process; provisions for the avoidance of misappropriation of moneys; an exemption on issued bonds from payment of duty; and a limitation period on any legal action resulting from the Act’s provisions. 363 The 1778 Act, s.22.

135 13. The whole of the 1778 Act is now spent, and may be repealed.

25 Geo.3 c. 97 (1785) (City of London Improvement Act 1785) Background and purpose 14. The corporation held the two compters, at Poultry and at Wood Street, for the imprisonment of debtors and other prisoners committed by the sheriffs courts. Much of the Wood Street compter (and ancillary offices) was held on long lease from the Dean and Chapter of St. Paul’s Cathedral.364 By 1785 the corporation had formed the view that each gaol was both “very small, close and confined” and, by virtue of the effluxion of time, “in a very ruinous condition, and much decayed”, so that each had become unfit for their purpose.365 Against this backcloth the corporation decided that demolition and replacement was the only available course, the new gaols to be erected “in a more open, airy, and commodious situation, on a suitable spot of ground, in some more convenient place within the said City”.366 However, that course, which would improve prisoner health and security, required “the aid and authority of Parliament”, now sought through the 1785 Act.

15. In broad terms the 1785 Act had the following as its principal purposes: (a) the authorisation of the corporation (acting through its Common Council) to pull down the two existing compters and to build replacement gaols on a specific site off Giltspur Street (in St. Sepulchre’s parish in the ward of Farringdon Without);367

(b) authorising the acquisition of the necessary land, and the clearing of the site (including demolition of such houses or buildings as may be necessary);368

364 The lease ran from Michaelmas day 1777, and imposed a repairing covenant on the tenant corporation: preamble to the 1785 Act (see below). 365 Preamble to 25 Geo.3 c.97 (1785) (“the 1785 Act”), being “An Act to enable the Mayor and Commonalty and Citizens of the City of London to pull down the Poultry and Wood-Street Compters, and to purchase certain Ground and Buildings within the said City for the Purpose of rebuilding the same”. 366 The 1785 Act, preamble. 367 The 1785 Act, s.1. The site was more fully described in the Schedule to the Act as lying between Newgate Street and Giltspur Street in the City. Should the new site prove insufficient to accommodate two gaols, the corporation were authorised to build one of the replacement compters on the site of one of the existing gaols: ibid., s.19. 368 The 1785 Act, s.1.

136 (c) providing a mechanism for valuing and transferring individual interests for acquisition where an owner failed to negotiate or to make good title;369

(d) providing compensation to the incumbent of the parish church for the loss of tithes which were charged on buildings liable to be demolished (by transferring the charge to the city’s funds, and providing for quarterly payment);370

(e) designating the two replacement gaols as the “Two Compters of the City of London”, for use by the sheriffs of London for the custody of “debtors and prisoners” and for such as uses as were customary in the original compters;371

(f) empowering the corporation to salvage and reuse materials from the existing gaols when demolished, or to sell the materials and apply the proceeds towards the cost of building the new facilities;372

(g) requiring the corporation, having demolished the Wood Street compter (and assuming that a new gaol did not have to be built in its place), at its own expense to build a dwelling house or houses on the site for letting and habitation;373 and

(h) laying down time limits for implementation of the 1785 Act374, and for the bringing of legal proceedings under the Act.375

369 The 1785 Act, ss.2-16. The Act provided for (amongst other steps) conveyance by those under legal disability, valuation and award of compensation by an empanelled jury sitting as part of the Aldermanic Court, payment of purchase moneys into the Bank of England (where refusal by, or inability of, owner to make good title) with automatic vesting of title, the investing of proceeds “in trust to pay the interest and dividends arising therefrom”, the reinvestment of funds derived from properties held in trust, and the handling of lesser interests. 370 The 1785 Act, s.17. 371 The 1785 Act, s.18. The sheriffs were also empowered to transfer prisoners to the new facilities when complete. 372 The 1785 Act, s.20. 373 The 1785 Act, s.21. The corporation was to retain its obligation to repair and “uphold” the buildings and to ensure that the Dean and Chapter received an equivalent annual rental. 374 The 1785 Act, s.21 (two years from demolition of the compter for building houses at Wood Street), and s.24 (ten years from the passing of the Act to acquire the necessary lands, failing which the Act itself would become void). 375 The 1785 Act, s.28.

137 Status of the 1785 Act 16. The 1785 Act appears to stand alone. Although it was designed to remedy a deficiency caused by the condition of two existing compters in the city, it did not refer to previous legislation relating to those two gaols (or to any legislation).

17. The Poultry compter may not have been rebuilt under the 1785 Act, but in all probability the Giltspur Street compter was built pursuant to it because it opened by 1791.

18. As can be seen from discussion of the 1804, 1812 and 1815 Acts below, and the available historic data, the Poultry compter seems to have ceased functioning by 1815, and the Giltspur Street compter by 1854. Given the need to seek enactment of the later Acts, it seems probable that the powers contained in the 1785 Act were only partially used. The powers on the face of the 1785 Act were, in any event, time- limited.

19. The whole of the 1785 Act is now spent, and it may be repealed.

26 Geo.3 c.55 (1786) (Middlesex Gaol Act 1786) Background and purpose 20. In the late 18th century the county justices for Middlesex (which county, at that time, embraced a large part of modern London to the north of the Thames) had taken note that the county house of correction was “in a ruinous state, insecure, and not large enough, or sufficiently airy, for the number of prisoners usually confined therein, or capable of answering the general purposes of a house of correction”.376

21. The justices had identified a site for rebuilding and relocating “a proper and commodious house of correction”, but were concerned that the cost of land acquisition and rebuilding would be “very considerable” and, if raised by levying a county rate, would place “a heavy burden upon the present inhabitants of the said county”.377

22. The justices promoted what became the 1786 Act in order to obtain powers to raise the necessary moneys. In summary the 1786 Act authorised the following:

376 Preamble to 26 Geo.3 c.55 (1786) (“the 1786 Act”), being “An Act to enable the Justices of the Peace for the County of Middlesex to raise Money, in Manner therein mentioned, for erecting a House of Correction within the said County”.

138 (a) the Middlesex justices to raise money to purchase the land and undertake building works by selling annuities (ie a form of bond) secured on the county rates;378

(b) annuity holders would be preferential creditors against the county rate fund, would receive annual dividends free from “all tares and deductions whatsoever”, and would have their investment evidenced by written grant;379

(d) the annuity purchase moneys were first to be applied by the justices in paying off all expenses associated with promotion of the 1786 Act, and the balance was then to be used for buying the site, erecting the building “with all necessary and proper conveniencies thereto”, and in fitting it out;381

(e) the justices to levy a county rate which not only would fund “the general purposes of the said county” but also would underwrite the cost of paying the various annuities;382 and

(f) the justices to sell or let the current house of correction (and site), together with “certain ground and tenements” adjoining which had been let to the Quakers, and apply the proceeds towards the cost of rebuilding the house of correction and supplementing the rates for the payment of the annuities.383

377 The 1786 Act, preamble. 378 The 1786 Act, s.1. The annuities could last for the lifetime of the purchaser or his or her nominee, and their survivors, and would be granted in such manner as the justices decided appropriate. 379 The 1786 Act, s.2. The written form of grant was prescribed in the same section. 380 The 1786 Act, s.3. The transfer would only take effect on registration (the form of which was also prescribed in the section). 381 The 1786 Act, s.4. Any remaining surplus was then to be used in paying the annuities. 382 The 1786 Act, s.5. The justices were to appoint a paid treasurer to handle the funds, and to ensure that all financial transactions were properly recorded in accounts which would be laid before each general or quarter sessions for approval: ibid., ss.6, 7. 383 The 1786 Act, s.8. Should any of the newly acquired land not be required for its purpose, the justices were empowered also to sell or let that (the moneys arising to be applied in like manner).

139 Status of the 1786 Act 23. The 1786 Act did not recite by name any previous legislation. But it did provide, specifically by section 9, a saving for any powers given under “any former Acts of Parliament to justices of the peace, respecting houses of correction”. This may have been intended to refer to the general powers given previously under Acts of 1741, 1743, 1782 and 1784.384 The last two Acts, in particular, probably triggered promotion of the 1786 local powers Act.

24. The Middlesex Gaol Act 1786 did not on its face indicate an identified site for rebuilding of the house of correction. But, as explained below at paragraph 49, the house of correction was probably built at Cold Bath Fields in Clerkenwell (now Mount Pleasant) in 1794 and closed in 1877. Both the building - having been demolished by 1889 - and its function, no longer exist.

25. On this basis, the purpose of the 1786 Act is now spent, and the 1786 Act may be repealed in whole.

44 Geo.3 c.lxxxiv (1804) (London Debtors’ Prisons Act 1804) Background and purpose 26. Early in 1804 the corporation received a report as to the state of the Poultry compter, one of its debtors’ gaols, sited within the city. That report found that the gaol was “in such a state of decay, as to become inadequate to the safe custody of the debtors and prisoners therein confined, and extremely dangerous, as well to the lives of the said debtors and prisoners as to other persons resorting thereto”.385

27. Faced with this situation, the corporation sought Parliamentary authority to transfer debtors and prisoners from the gaol to other secure premises whilst works were in train “for the rebuilding or repairing of the said compter, or providing another compter”.386 The very short 1804 Act enabled the following steps to be taken: (a) permitting the city sheriffs to effect the transfer of existing prisoners from the Poultry gaol to “the Giltspur-Street Compter, or to such other safe, secure, and convenient place within the said City as shall be

384 These Acts were, respectively: 15 Geo.2 c.24 (1741), 17 Geo.2 c.5 (1743), 22 Geo.3 c.64 (1782) and 24 Geo.3 Sess.2 c.55 (1784). 385 Preamble to 44 Geo.3 c.lxxxiv (1804) (“the 1804 Act”) being “An Act for enabling the Sheriffs of the City of London to remove the Debtors and Prisoners in the Poultry Compter to another Place of Confinement in the said City”. 386 The 1804 Act, preamble.

140 approved of” by the corporation’s assembled Common Council, and likewise to hold future committed prisoners in the same manner;387

(b) permitting the sheriffs to transfer their offices and records from the Poultry gaol to the alternative premises for the duration of the works; and

(c) permitting the sheriffs to return the prisoners to the Poultry gaol “when and so soon as a new Poultry Compter shall be built or provided, or the present Poultry Compter of the said City of London, or any part thereof, shall have been rendered safe, and fit, and commodious, for the reception of prisoners”.388

28. The 1804 Act provided no powers to undertake the rebuilding works, or to raise moneys to defray the expenses. The corporation may have relied on other (possibly national)389 powers to undertake the physical works, although no other Acts were cited in the 1804 legislation.

Status of the 1804 Act 29. The purpose of the 1804 Act was narrow: to permit the transfer and return of prisoners between gaols, in order to release current pressure on the Poultry compter.

30. The Giltspur Street compter (or civic gaol) was built around 1791, and was fully operational at the time of the passing of the 1804 Act. However, as indicated at paragraph 50 below, by 1855 it had been decommissioned and demolished.

31. The whole of the 1804 Act is spent, and it may now be repealed.

387 The 1804 Act, s.1. (The printed version of the 1804 Act has only side headings for sections, but does not carry section numbers.The section numbers used in this note have simply been assigned informally to aid navigation through the Act’s text). 388 The 1804 Act, s.1. Section 1 of the Act anticipated the possibility that not all the prisoners in shrieval custody could later be returned to the Poultry compter, only “so many of them as can be respectively secured and kept secure in such Poultry Compter, when rebuilt, provided, or repaired as aforesaid”. 389 Akin, for example, to the powers contained in an Act of 1784 (24 Geo.3 Sess.2 c.54, which Act was directed principally to county justices). The powers in the 1785 Act (see above) had probably long- expired as they were time-limited.

141 52 Geo.3 c.ccix (1812) (Debtors’ Prison for London and Middlesex Act 1812) Background and purpose 32. The corporation formed the view in the second decade of the 19th century that a new gaol needed to be constructed in order to relieve pressure on four other gaols in the area. To this end the corporation promoted a Bill resulting in a detailed Act of 1812.390

33. The four existing gaols were: Newgate (used as the common gaol for both London and Middlesex county to confine felons, offenders and “other persons in the custody of the sheriffs”)391; Poultry and Giltspur Street compters (which were used not only for housing civil prisoners - presumably debtors in the main - but also felons, other offenders, night custody prisoners and others “confined for further examination”)392; and Ludgate prison (used for confining debtors of some social standing).

34. The corporation prayed in aid of their Bill the need for a house of correction to serve the city and the opportunity, which constructing a new gaol would create, of reutilising the existing gaol accommodation. The corporation had previously obtained power through a 1785 Act (see above) to demolish the Poultry and Wood Street compters and to rebuild on other land within the city confines.393 Those powers, however, were insufficient to sustain the present project. In particular, the corporation needed Parliamentary authority to acquire land abutting Whitecross Street, to raise sufficient moneys for the acquisition and building project, and to convert (and redesignate principally for criminal use and use as a house of correction) the former gaols.394

35. In order to fulfil its purpose, the 1812 Act authorised (in broad terms) the following steps:

390 52 Geo.3 c.ccix (1812) (“the 1812 Act”), being “An Act for building a new Prison in the City of London, for removing thereto Prisoners confined under Civil Process in the Gaol of Newgate and the Two Compters of the said City, and also the Prison of Ludgate, and for converting the Building now containing the said Two Compters and Ludgate into a Gaol for Criminals in the said Two Compters, and into a House of Correction for the said City of London”. 391 Preamble to the 1812 Act. Newgate was seen as having insufficient capacity for the number of prisoners housed there, causing “great inconvenience to such prisoners, and danger of contagious disorders”: ibid. 392 Preamble to the 1812 Act. It was felt desirable that civil and criminal prisoners should not be held together. 393 See above for the 1785 Act (25 Geo.3 c.97). This 1785 Act is specifically recited in the preamble to the 1812 Act. 394 The 1812 Act, preamble. The corporation needed to raise the (in those days) very significant sum of £95,000.

142 (a) the acquisition of the necessary land in the St Giles-without- Cripplegate parish, and the construction of a new gaol (together with residential accommodation for the gaol keeper or keepers, and ancillary office space);395

(b) in the event of failure to secure purchase of land by private treaty, the corporation was authorised to purchase compulsorily (after payment into the Bank of England of the assessed purchase price), and then to undertake such demolition as was necessary.396 The power to purchase was time-limited to five years from the passing of the 1812 Act;397

(c) the disposal of any acquired parcels of land which later proved to be surplus to requirements398, and the reuse (or sale) of any building materials salvaged from demolished buildings;399

(d) the raising of moneys solely for the project by selling interest-yielding redeemable annuities (in effect borrowing) worth up £95,000, secured on the city’s Orphans’ Fund, and evidenced by written bond;400

(e) the employment, and regulation, of clerks and other officers in order to handle all aspects of the project;401

395 The 1812 Act, ss.1, 2. Schedule 1 to the Act set out the details of the several plots of land (and buildings) to be acquired. Section 1 provided that the new gaol was to be designed to contain “four separate and distinct parts or prisons” for the confining of different categories of prisoner (with subdivisions for male and female, and day and night, accommodation, plus work “apartments”, separate infirmaries, proper bathing arrangements, and a chapel). The new gaol was to be accessed from White Cross Street. 396 The 1812 Act, s.2. Sections 3 to 23 set down a code for purchase (both by treaty and compulsorily), governing such issues as partial acquisition of a landholding, authorising land transfer where the landowner was under a legal disability, time-limiting claims, handling untraced and non-compliant owners (and assessing compensation), providing mechanisms for vesting good title and paying compensation (including with court sanction), and conveying mortgaged land. 397 The 1812 Act, s.4. 398 The 1812 Act, s.24. The moneys thereby released were to be repaid to the Orphans’ Fund maintained by the corporation under other statutory powers. 399 The 1812 Act, s.25. 400 The 1812 Act, ss.30-38. If at any time the Fund were to be insufficient to honour the various calls upon it, any deficit would then be made good from the city chamber (ie. its main account): ibid., s.35. The cost of promoting the 1812 Act was also to be reimbursed from moneys raised and received under it: ibid., s.88. 401 The 1812 Act, ss.39-41. The Act also made provision for the proper handling of, and accounting for, moneys.

143 (f) the making good by the corporation to the parish of lost land tax and rating revenues caused by the demolition of acquired houses or buildings;402

(g) once constructed, the new gaol was to be known as the Debtors Prison for London and Middlesex, and was to operate on the basis that it be sub-divided into four parts, each part of which was to replicate the function of one of the four former gaols;403

(h) prisoners held in the designated parts of the new gaol were not to be liable for process relating to other jurisdictions in the gaol (and the respective sheriffs were not to be held liable for the safe custody of persons other than those specifically committed to them)404 and, once transferred, they were to be subject to the same management regime as pertained in the previous gaol;405

(i) on completion of prisoner transfer, Newgate gaol was to be redesignated solely for criminal use406, and part of the two compters, together with part of Ludgate prison, were likewise to be converted and used for housing criminal prisoners, including those apprehended at night or detained “for further examination” (the gaol to be known as the Giltspur Street Prison);407

(j) the conversion of part of the two compters and Ludgate gaol into a house of correction by the Court of Aldermen (including the defraying of the cost by the corporation), ensuring that separate accommodation

402 The 1812 Act, s.47. 403 The 1812 Act, s.48. One part was designated for civil process prisoners in the custody of the sheriff of Middlesex (seemingly housed at Newgate); two further parts were designated to replace the existing two compters used for securing civil process prisoners in the custody of the city sheriffs; and the fourth part was designated the replacement for all the functions of the former Ludgate prison. Civil process included committals for contempt: ibid., s.57. Once construction was complete, all the relevant prisoners were to be transferred from their existing gaols: ibid., s.50. Additionally, criminal process prisoners who would have been held in the former two compters would be held in that part of the new gaol designated as the replacement facility for the compters and for Ludgate prison: ibid., s.49. 404 The 1812 Act, s.51. Moreover, no sheriff was to have any civil liability for any criminal prisoner unless so ordered by a court (and communicated to the sheriff): ibid., s.52. 405 The 1812 Act, s.54. This regime included the right to benefit from privileges, charitable aid and gifts.The proviso did not, however, apply to prisoners from the two compters: ibid., s.55. 406 The 1812 Act, s.56. 407 The 1812 Act, ss.59, 60, 61 and 63. A further part of the three gaols was to be converted into a house of correction for the city: ibid., s.59. Whilst the conversion works were in hand the prisoners were to be held temporarily in “such safe, secure, and convenient place” within the city as the Court of Aldermen should approve: ibid., s.62.

144 was set aside for those “committed for punishment by hard labour” (with “mills, looms, utensils and implements” and “materials for manufactures” for use by women prisoners);408

(k) management and governance of the new gaol, the Giltspur Street prison and the house of correction, including ensuring that the facilities were kept washed and clean, constantly ventilated, and the prisoners to be bathed prior to leaving the establishments “on any occasion whatsoever”409; appointing (and dismissing) keepers, officers, governors or taskmasters, the latter to have the legal powers available within the county establishments410; laying down the rubric for the conduct of the officials and the running of the gaols (including securing good order and discipline);411

(l) providing an inspection regime by appointed visitors (a minimum of five aldermen) to review the state of the buildings, conduct of the officers, and treatment of the prisoners;412

(m) providing for the appointment (and dismissal) of Church of England chaplains, and of experienced physicians, surgeons or apothecaries, to each of the gaols;413 and

(n) providing a mechanism for appeal to quarter sessions by persons aggrieved by actions taken under the 1812 Act.414

408 The 1812 Act, s.64. The corporation was to have management of the house of correction with the same powers as were then available to county justices: ibid., s.65. 409 The 1812 Act, s.66. 410 The 1812 Act, s.67, 68. 411 The 1812 Act, ss.69-79 and 85, and sch 2 (rules for the house of correction). 412 The 1812 Act, s.80. The visitors were empowered to make written report to the Court of Aldermen on any perceived abuses, and the court was obliged to give “immediate consideration” to the matter and to “adopt the most effectual measures for inquiring into and rectifying such abuses” as circumstances would permit: ibid. The keepers and governors of the several institutions had to make written returns of prisoners in their charge, counter-signed by the visitors, and also to lodge with the court an annual sworn certificate in prescribed form attesting to compliance with the 1812 Act’s requirements: ibid., ss.81-84 and sch 3. 413 The 1812 Act, s.86. 414 The 1812 Act, s.91. The 1812 Act also provided for recovery of penalties imposed (by distraint on goods), for ouster of jurisdiction for want of technical form, and for litigation time limits.

145 Status of the 1812 Act 36. The whole of the 1812 Act is still in force, with the exception of one section. Section 46 (which provided for the reimbursement of the Rector or Vicar of the Parish of Saint Giles without Cripplegate for tithes lost on buildings that were to be demolished under the Act, which instead would be charged against other corporation revenue sources) was repealed by the Saint Giles Cripplegate Tithes Act 1826, s. 11.415 The 1812 Act was designed to secure more power than was afforded to the corporation in the 1785 Act (see above).

37. The powers contained in the 1812 Act were specifically extended to the 1815 Act (by section 7 of the 1815 Act: see below), the purposes of which were directly related.

38. As indicated at paragraph 52 below, the gaol at Cripplegate was later decommissioned (in 1870) and, by 1876, the building had been demolished and the site redeveloped.

39. Accordingly, the 1812 Act is now spent, and may be repealed in whole.

55 Geo.3 c.xcviii (1815) (Debtors’ Prison for London and Middlesex Act 1815) Background and purpose 40. By 1815 the corporation had, under powers granted in 1812, started work on building a new gaol for the city, which was intended to replace the accommodation in four other gaols used for “prisoners confined under civil process”.416 This new gaol (and its allied offices), situated on a piece of land in the parish of St. Giles without Cripplegate417, originally was designed to contain “four separate and distinct parts or prisons” which would reflect the gaols (and the jurisdictions) they replaced.418 Thus, one part was to be designated to receive prisoners who would have been committed by the Mayor and Aldermen’s Court (under civil process) to the custody of the

415 7 Geo.4 c.liv (1826) (“the 1826 Act”), being “An Act for extinguishing Tithes and Customary Payments in lieu of Tithes and Easter Offerings within the Parish of Saint Giles Cripplegate, in the Liberties of the City of London; and for making Compensation to the Vicar for the Time being in lieu thereof”. The 1826 Act was itself repealed in whole by the City of London (Various Powers) Act 1950, s.18 and sch 2. 416 Preamble to 55 Geo.3 c.xcviii (1815) (“the 1815 Act”), being “An Act to amend an Act of His present Majesty, for building a new Prison in the City of London, and for removing thereto Prisoners confined under Civil Process in the Gaol of Newgate and the Two Compters of the said City, and also the Prison of Ludgate”. The 1812 Act, to which the 1815 Act referred, was 52 Geo.3 c.ccix (wrongly cited as c.109, and not c.209, in the 1815 Act’s side heading), for which 1812 Act see above. 417 The gaol was to be known as the debtors prison for London and Middlesex. It was located at White Cross Street in the city.

146 Middlesex sheriff; two parts were designated to replace the function of the two city compters (probably the Poultry and the Giltspur Street compters); and the remaining part designated to replace the function of the former Ludgate prison.419

41. The new gaol also was to contain separate accommodation for male and female prisoners, plus “sufficient apartments and places for the use of such prisoners as might be willing to work for their maintenance while in confinement”, separate “infirmaries or sick wards”, and “proper and distinct airing grounds”.420

42. Once building work on the project had started, and had made “considerable progress”, practical considerations then intervened. It became clear that the inflexible four-part subdivision required under the 1812 Act was less than sensible, and that the statutory requirement should be repealed and replaced. Experience showed, first, that one designated part may become overcrowded whilst another (or others) may be under-occupied; and, secondly, that separate airing grounds would be “too small and confined to afford sufficient air and exercise” for the occupying prisoners. The 1815 Act was promoted, therefore, to remedy the situation.

43. The 1815 Act’s primary purpose was simply to unpick certain of the statutory restrictions. Thus, it provided that: (a) the 1812 Act’s requirements relating to physical sub-division of accommodation and airing grounds were to be repealed;421

(b) prisoners confined under different custodial regimes within the new gaol might be held in any part of that gaol (it now being treated as a joint prison);422

418 The 1815 Act, preamble. 419 The preamble to the 1815 Act made clear that, although committal of debtors by a court was to a new building under one roof, nonetheless the various committing jurisdictions were to remain separate (so that, once committed, a prisoner would not be liable to be charged with process relating to another jurisdiction, and the relevant sheriff would only be responsible for prisoners specifically committed to his custody). 420 The 1815 Act, preamble. 421 The 1815 Act, s.1. Section 2 of the Act contained, however, a saving for the other facilities, in particular provision of work places, gender-separated infirmaries, and the provision of “proper and distinct airing grounds for the men and the women”. 422 The 1815 Act, s.3. The flexibility for holding prisoners allowed for “the intermixture of prisoners confined under different custodies” within the outer wall of the prison “or inclosure thereof”: ibid.

147 (d) the remaining parts of the 1812 Act were specifically saved by the 1815 Act.424

Status of the 1815 Act 44. The debtors gaol at Whitecross Street, Cripplegate was built between 1813 and 1815 (under the 1812 Act), and closed around 1870 (see paragraph 52 below). It was subsequently demolished, and the site redeveloped.

45. The 1815 Act was designed solely to amend the principal empowering legislation, the 1812 Act, which itself is now spent (see above).

46. The whole of the 1815 Act is now spent, and it may be repealed.

Archive-based history 47. The cities of London and Westminster, and the county of Middlesex, in the 18th and 19th centuries contained a range of gaols built and maintained for different purposes: the housing of debtors, of vagrants and of criminals.

48. Newgate gaol was first built in the 12th century, and rebuilt three times (in 1672, in 1770-78 and finally, following the Gordon Riots of 1780, in 1780-82). The gaol abutted Old Bailey. Internal alterations were carried out around 1857-58425, and the gaol finally closed in 1902 (and was demolished). The present Central Criminal Court was built on the site and opened in 1907. Newgate gaol was used principally as a common gaol for felons taken in the City of London.

49. The Middlesex house of correction was built in 1794 at Cold Bath Fields in Clerkenwell. It may have been constructed from a previous gaol on the site. It was probably built pursuant to powers in the 1786 Act, but the Act itself was silent as to the location of the new facility.426 New buildings were added shortly after 1865.427

423 The 1815 Act, s.4. The prisoners were to continue to be managed as if they were in their original gaols and to benefit from any “charities, gifts, benefits, and advantages whatsoever” to which they may have been entitled had they been housed in their former gaols: ibid., s.5. 424 The 1815 Act, s.7. The costs falling on the Common Council of promoting and obtaining the 1815 Act were to be covered by the powers contained within the 1812 Act: ibid., s.6. 425 www.institutions.org.uk/prisons/England/LDN/newgate_prison.htm, citing The Builder, Vol. 26, 1 February 1868, p. 73. 426 The house of correction was managed by the county justices for Middlesex: see House of Commons Committee Appointed to Enquire Into the State of His Majesty’s Prison in Clerkenwell, Journals of the House of Commons (Abbot Collection), Vol. 54, Session 1798-99.

148 This house of correction remained in existence until 1877 (and the buildings finally demolished in 1889).428 Although the institution reputedly started life as a ‘short sharp shock’ regime (imposing hard work over a relatively short stay), by 1819 it apparently had become a general gaol for criminals, where the keeper and chaplain felt prisoners left in a state worse than better for their confinement.429 The site was later occupied by the Mount Pleasant Postal Sorting Office (located now within the London Borough of Islington).

50. The Poultry compter (a debtors’ gaol) was in existence before 1724430 and was still operational in 1799.431 It appears to have been located in Cheapside in the city, and it ceased to operate in 1815.432 Its function seems to have been replaced by the Giltspur Street compter (itself in existence by 1799, and probably built between 1787 and 1791).433 This gaol, which was managed by the corporation, was operational in 1818434 and closed in 1854.435 The buildings were demolished in 1855, and the site was later occupied by the Viaduct Tavern at the junction of Newgate Street and Giltspur Street.436

51. The sheriffs courts, which had specific jurisdiction relating to debtors who were liable to be committed to the two compters at Poultry and at Giltspur Street, were formally abolished in 1977.437

427Middlesex County Sessions (November 1865) decided to raise £20,000 towards the cost of erecting new buildings at Coldbath Fields, over and above the £65,000 previously authorised: The Builder, Vol. 26, 6 June 1868, p. 419. 428 www.ph.ucla.edu/epi/snow/1859map/middlesex_prison_a2.html. 429 www.londonancestor.com, citing S.Leigh New Picture of London (publ. 1819). 430 Written protections in offices of Poultry Compter, 1724 at www.bopcris.ac.uk/bop1700/ref681.html. 431 www.londonancestor.com citing P. Boyle Boyle’s View of London, and its Environs (publ. 1799). 432 See H.A. Harben A Dictionary of London (1918). We are grateful to Howard Doble, senior archivist with the Corporation of London, for this reference. We are advised also that registers of charges, in respect of the Poultry compter and held in the archive, do not survive beyond September 1815. 433 www.victorianlondon.org (‘prisons’), citing Mogg’s New Picture of London and Visitor’s Guide to its Sights (publ. 1844). By 1844 the Giltspur Street gaol was used for holding vagrants, night-time drunks and prisoners awaiting trial. The Poultry compter’s functions may, in 1815, have transferred alternatively to the London and Middlesex debtors prison. 434 www.bopcris.ac.uk/bopall/ref2962.html, citing Reports from the Select Committee on the State of the Prisons within the City of London and Borough of Southwark, Parliamentary Sessional Papers, 1818, vol.8. 435 It was still in being in 1839 (www.oldtowns.co.uk/Middlesex/london-pt6.htm, citing a report of that year), but appears to have been decommissioned around 1850 (according to www.victorianlondon.org/publications5/prisons-05.htm, citing H. Dixon London Prisons (1850), pp. 7-10). Harben (see above) put the closure date at 1854, with demolition the following year. This seems the more likely chronology. 436 The tavern (opened 1869) was so named because of its proximity to the newly operational Holborn Viaduct. It is said that some cells of the former gaol remain on the site, and were used as cellar accommodation. 437 By the Administration of Justice Act 1977, sch 4.

149 52. The London and Middlesex debtors prison in Whitecross Street (on the corner of Fore Street) in Cripplegate was built on the site of the former Peacock Brewhouse between 1813 and 1815, so that debtors could be held separately from convicted felons.438 The gaol closed in 1870, and in 1876-77 the Midland Railway Company built a goods terminus on the site (which, in turn, was destroyed by air-raid in the Second World War).439

Extent 53. All seven Acts referred to in this note (running from 1766 to 1815) apply locally only within the City of London, and the London Borough of Islington, in England.

Consultation 54. The Home Office, HM Prison Service, the City of London Corporation and Islington London Borough Council have been consulted about this repeal proposal.

(32-195-452) LAW/005/002/06 01 February 2008

438 By 1838 this gaol was one of five prisons used exclusively in London for the holding of debtors. 439 www.easterling.btinternet.co.uk/london_sweden/john_easterling-1787_1853_.htm, citing J. Easterling Families of England.

150 COUNTY GAOLS GROUP 8 - GREATER LONDON (SOUTH) ______Reference Extent of repeal or revocation ______31 Geo.3 c.22 (1791) The whole Act. (Surrey Gaol Act) ______

31 Geo.3 c.22 (1791) (Surrey Gaol Act 1791) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout the country) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.440 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.441 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Surrey, in 1791, the county justices formed the view that the existing common gaol of the county (situated in St. George’s parish, Southwark) was “ill adapted for the proper confinement of the many felons and debtors usually lodged therein, and is too small”.442 Moreover, the structure “being an ancient building, is greatly gone to decay, and [was] incapable of being properly repaired and enlarged”.443

3. The justices based this view on the findings of the grand jury which had met at the Kingston county assizes in March 1790 and had then presented its findings.

440 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 441 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 442 Preamble to 31 Geo.3 c.22 (1791) (“the 1791 Act”) being “An Act for building a new Common Gaol and Session House, with Accommodations thereto, for the County of Surrey, and for disposing of the present County Gaol, and the Ground thereto belonging”. 443 Ibid., preamble.

151 The justices resolved that a replacement “publick and common gaol” for the county444 should be constructed, together with a new sessions house and “other accommodations to answer the publick purposes of the said county”.445 The gaol and sessions house were to be co-located on a freehold site (measuring 3.5 acres) situated near Horsemonger Lane in Newington (within St. Mary’s parish).446 The site was seen as “commodiously and conveniently situated for the purpose of erecting such gaol, with proper offices and requisites, and a session house with proper accommodations”.447

4. The 1791 Act authorised the Surrey county justices to purchase and develop the site.448 To this end the Act spelt out (summarised here in broad terms) the following powers and purposes:449 (a) that the justices be empowered to purchase all legal interests in all “houses, buildings, grounds, and other tenements or hereditaments” (as were necessary for siting the gaol and sessions house) situated on the south side of Horsemonger Lane running from the Turnpike Road (near Stones End); and all the land to the west of the intended gaol, up to and including the Turnpike Road (from Stones End to Newington Turnpike), so that a “proper avenue” could be created from the Turnpike Road to the west flank of the new gaol and sessions house;450

(b) that the justices should first meet (after giving of public notice, and with a quorum of five) to put the Act into effect on 25 May 1791,451 and thereafter at regular intervals;452

444 The 1791 Act, s.7. 445 The 1791 Act, preamble. The common gaol for the county was to be used for the “confinement of criminals, debtors, and others”: ibid., s.5. 446 Horsemonger Lane, Newington later became Union Road, sited off the Newington Causeway. Union Road no longer exists, but the gaol appears to have been built on land adjoining Bath Terrace and Rockingham Street (in the SE1 postal district). Both these roads still exist. 447 The 1791 Act, preamble. The additional facilities were to include “a proper place for the residence of the gaoler”: ibid., s.5. 448 Ibid. 449 The powers in the 1791 Act relating to the building and operation of the new Surrey gaol were expressed to be supplemented by all the powers then existing in national legislation relating to county gaols: the 1791 Act, s.17. 450 The 1791 Act, s.2. The land was to be conveyed to 22 named trustees (and their heirs): ibid. Power was given to the justices to appoint (in general quarter sessions) replacement trustees when the number of original trustees dropped (by death) to “under the number of six”: ibid., s.6. 451 The 1791 Act was also to commence on this date: the 1791 Act, s.3. 452 The 1791 Act, s.3. Authenticated minutes were to be kept for each meeting held.

152 (c) that interest-holders with insufficient legal capacity be authorised to convey their land title to the gaol trustees. In the event of the justices and vendors failing to agree a purchase price, provision be made for determining valuation of the land by a special 12-man jury making recommendation to the justices;453

(d) that the new “convenient gaol” and sessions house be built (following a justices’ resolution to that effect), the former for the purpose of confinement and “safekeeping” of debtors and criminal offenders. Both of these buildings were then to be “insured, maintained, supported and repaired” in accordance with the national legislative powers available for the maintenance and repair of other gaols in the kingdom;454

(e) that on completion of the new gaol facility, the sheriff be empowered to transfer all prisoners within the existing gaol to the new one, and that the old gaol (then deemed to be vested in the justices) be demolished;455

(f) that the county justices be required in general quarter sessions to assess the overall cost of land acquisition, demolition and new-build; to compute a rate to be apportioned amongst “every town, parish, hamlet, and place” within the county; and then to levy and collect that rate (in accordance with national legislation relating to county rating456);457

(g) that the justices be authorised to defray the cost of building the new gaol and sessions house by borrowing (secured by mortgage on the

453 The 1791 Act, s.4. The jury was to reach its valuation decision after examining relevant witnesses on oath and, if necessary, conducting a site inspection: ibid. In the event that the assessed sum could not be paid direct to the relevant vendor or vendors (because of their absence or refusal to accept), the trustees were empowered to lodge it with the clerk to the peace. Good title would then be deemed vested in the trustees: ibid., s.5. 454 The 1791 Act, s.7. On the demise of the then existing national legislation relating to the maintenance of gaols (extended by the 1791 Act to include the Newington sessions house), the obligation to maintain and repair what, today, is the Inner London Crown Court building passed from the Surrey county justices to - eventually - the Lord Chancellor and Secretary of State for Constitutional Affairs: see Courts Act 2003, s.3 (effective 1 April 2005: S.I. 2005 No. 910) for current provision and maintenance obligation. 455 The 1791 Act, s.7. The materials salvaged from the old gaol were to be used for “building or finishing” the new gaol; and the site sold (with the proceeds being put towards the cost of building the new gaol and sessions house): ibid. 456 12 Geo.2 c.29 (1738) (County Rates Act 1738) and related Acts.

153 county rates or by sale of annuities)458 such sums as appeared necessary, at “legal or lower interest”;459

(h) that a prohibition be placed on increasing from its previous level any land-related tax (including house or window tax) due in respect of the newly acquired site or newly constructed buildings, notwithstanding provisions in any existing Acts of Parliament;460

(i) that a prohibition be placed on the erection of any building, or the piling of any “pole, timber, earth, dung, hay, straw, wood, rubbish, or other thing” over 6 feet high, or the keeping of swine, within 40 feet of the gaol’s outside wall (or the allowing of any tree to grow within the designated zone);461

(j) that the justices be authorised to appoint on salary (and dismiss) a treasurer and a surveyor;462 and

(k) that an appeal mechanism be put in place whereby any person “aggrieved by any thing done in pursuance of [the 1791] Act” could seek, on written notice, a determination from quarter sessions.463

457 The 1791 Act, s.8. 458 The county rates were to provide up to £2,427 each year for the purpose of servicing the interest payments on the sums borrowed, and the payment of the annuities (as described below): the 1791 Act, s.13. 459 The 1791 Act, s.12. The loans by mortgage were to be taken in tranches, each not less than £100 (cf. Gloucester Gaol Act 1785, s.35, where the amount was not to exceed £100), or on an annuity basis spread over “any term of years not exceeding twenty-five years” or the purchaser’s lifetime. The form of mortgage was prescribed, and the mortgages and securities could be assigned by their owners to any third party, so long as the assignment was registered: ibid., ss.12, 13 and sch. The annual sum of £2,427 was to be applied in (a) paying the costs of obtaining the 1791 Act, (b) paying interest and annuities, (c) discharging the costs of purchasing the necessary land and erecting and “fitting up” the buildings, and (d) lastly, creating a sinking fund: ibid., s.15. Section 14 laid down the procedure for discharging mortgages or annuities. 460 The 1791 Act, s.9. 461 The 1791 Act, s.10. The purpose of the restriction was to secure “a free circulation of pure and wholesome air” around the gaol in order to prevent “the gaol fever, and other malignant diseases”. Discontinuance or removal could be effected by the justices by service of an enforcement notice and payment of a penalty for non-compliance: ibid. Any interference with the gaol building or the sessions house was made a punishable felony: ibid., s.11. 462 The 1791 Act, s.16. The treasurer was to be required to provide security for good performance in his office. The clerk of the peace (or his deputy) were to be required to take the minutes of all meetings held in the furtherance of the 1791 Act: ibid. 463 The 1791 Act, s.19. This appeal route lay where “no particular method of relief hath been already appointed”: ibid. The 1791 Act applied a six month limitation period to the commencement of all legal proceedings under the Act: ibid., s.21.

154 Status of the 1791 Act 5. The 1791 Act had two main purposes: to build and operate a new county gaol in Newington (then in the county of Surrey and now in the London Borough of Southwark); and to build a new sessions house.

6. Although the 1791 Act incorporated other existing national legislation into its provisions464, in terms of local powers it appears to have stood alone.

7. The provisions relating to the county sessions house were much narrower than those applying to the gaol. In essence they extended only to purchasing the relevant portion of land; building the sessions house; repairing and maintaining it; and raising the necessary capital and revenue moneys.465 Apart from the on-going commitment of repair and maintenance, the other obligations expired fairly shortly after completion of the building and fitting-out processes. The sessions house still operates today as the Inner London Crown Court. The obligation to repair and maintain the courthouse building passed in time to HM Courts Service (within the aegis of the Department for Constitutional Affairs).

8. The county gaol was built between 1791 and 1799, opening in the latter year. It closed in 1878 and the building ceased to exist when demolished in 1880.

9. The whole of the 1791 Act has become spent, and may now be repealed.

Archive-based history 10. The Surrey county gaol (known originally, until around 1859, as the Horsemonger Lane gaol)466 was opened in Newington in 1799. Prisoners were transferred to it from the first Marshalsea gaol467 and from the Surrey bridewell (house of correction).468 It functioned as a gaol for criminals and for debtors.469

464 The 1791 Act, ss.8 (as to rating powers), 17 (as to county gaol powers). 465 See para 4 above. 466 Horsemonger Lane became Union Road by 1859, and today is Harper Road, SE1. 467 See Crime and Punishment at http://www.london-footprints.co.uk/wkcrimesadd.htm 468 Ibid. 469 The previous county gaol (known as the White Lion gaol) was located next to St. George’s churchyard in Southwark. This gaol site, in due course, was sold (in 1799) and then used as the new Marshalsea prison (from 1811). The borough library today stands on the site. [Information courtesy of Stephen Humphrey, the Local History Library Archivist for Southwark Council]

155 11. The new county gaol was located off Newington Causeway, adjoining Bath Terrace and Rockingham Street, and was sited to the south-east of the new sessions house.470

12. The gaol closed in 1878 and was demolished in 1880. Four years later, part of the site was laid out as a children’s playground.471

13. No prisons operating under the auspices of HM Prison Service today are located in the London Borough of Southwark.

14. The sessions house was completed and became operational by 1794. It was later rebuilt and enlarged on the same site on several occasions to provide additional court accommodation: in 1875, between 1913 and 1917, in 1958 and finally in 1974. The court house (approached via the original gateway fronting on to Newington Causeway) became the Inner London Sessions in 1964 and the Inner London Crown Court in 1971. The present complex, housing ten courts, is protected for planning purposes as a listed building.

Extent 15. The 1791 Act applies locally only within the London Borough of Southwark in England.

Consultation 16. The Home Office, HM Prison Service, the Department for Constitutional Affairs, HM Courts Service and Southwark London Borough Council have been consulted about this repeal proposal.

(32-195-452) LAW/005/002/06 01 February 2008

470 See Guardian Unlimited: Forgotten Tribe at http://books.guardian.co.uk/extracts/story/0,6761,1252913,00.html. For a description of the prison regime at Newington see Old Towns: London in 1839 at http://www.oldtowns.co.uk/Middlesex/london- pt6.htm 471 See Crime and Punishment (cited above at note 467). The park is called Newington Gardens, although it is still known locally as Jail Park.

156 COUNTY GAOLS GROUP 9 - HAMPSHIRE ______Reference Extent of repeal or revocation ______41 Geo.3 c.cxxxii (1801) The whole Act. (Winchester Gaol Act)

45 Geo.3 c.xliv (1805) The whole Act. (Portsmouth Gaol Act) ______

41 Geo.3 c.cxxxii (1801) (Winchester Gaol Act 1801) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.472 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.473 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In the city of Winchester (in Hampshire), by 1801, the common gaol (“or bridewell”) for the city had “lately been taken down” because it had “become very ruinous from length of time and inadequate to the purposes for which it was intended”.474 In its stead “a new and more commodious [facility had been] in part erected”.475 However, two practical difficulties had intervened.

472 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 473 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 474 Preamble to 41 Geo.3 c.cxxxii (1801) (“the 1801 Act”), being “An Act for completing the Common Gaol now building in and for the City of Winchester, and for purchasing certain Buildings within the said City for widening the Avenues thereto”. 475 The 1801 Act, preamble.

157 3. First, several houses and buildings stood close to the new gaol premises. If they remained in situ their existence would “be a great publick inconvenience”, both to the operation of the gaol and to the use of “the common street or way on which they bound”.476

4. Secondly, the city corporation had inadequate funds to complete the building of the gaol, and insufficient money or powers to purchase the buildings (and appurtenant land) for the purpose of demolition and clearance.

5. To rectify these difficulties, the city corporation promoted the Winchester Gaol Act of 1801.477 The broad purposes of the 1801 Act were as follows: (a) to provide for the appointment of the mayor, aldermen and bailiffs of the city as commissioners to carry the 1801 Act into effect;478

(b) to authorise the appointment (and, if necessary, dismissal) by the commissioners of a “clerk, treasurer, collector, and other officer, or person” as the commissioners deemed appropriate;479

(c) to authorise the commissioners to purchase various houses or buildings specified in the Act for the purpose of clearance and creation of open ground (which clearance they were to effect “within the space of twelve calendar months from the passing of this Act [i.e. by 1 July 1802], or as soon afterwards as conveniently may be”);480

476 Ibid. 477 The 1801 Act, preamble and s.1. 478 The 1801 Act, s.1. The commissioners (with a quorum of three) were obliged to transact their business through regular meetings held within the city limits.Meeting dates were to be publicised; the chairman was to have a casting vote; revocation of previous resolutions was to be subject to a special procedure; and minute books were to be maintained and made available for limited public inspection (with minutes signed by commissioners present): ibid., ss.1-4. 479 The 1801 Act, s.5. All the appointed officers were obliged “from time to time”, and as often as specifically required, to account in writing for moneys received on the commissioners’ behalf and, in default, to answer before a justice (who was empowered, where there was a financial shortfall, to order distraint or imprisonment for up to 6 months, the latter “without bail or mainprize”, until the default was made good or a composition was reached with the commissioners): ibid., s.6. 480 The 1801 Act, s.7. The section set out by name the interests to be acquired, and indicated that “all which houses or tenements are situate at the lower end of the High Street, within the said City, and on the south side thereof”: ibid. The materials salvaged from the demolition were to be sold on “for the best price that can reasonably be gotten for the same”: ibid. The Act also provided that those owners with legal incapacity were entitled to sell, and to convey good title, to the commissioners.The purchase moneys were to be paid into the Bank of England (to earn interest), under the control of the Court of Chancery, and then (when they exceeded a specified limit) to be used to acquire replacement lands to be held on similar trust for the person or persons with incapacity: ibid., ss.7-9, and ss.26-28.

158 (d) to vest in the commissioners ownership of “the ground or soil on which the said common gaol or bridewell is now erecting”;481

(e) to authorise the commissioners to raise up to £3,000, for the purposes of defraying the costs of obtaining the 1801 Act, completing the “new gaol or bridewell”, and purchasing the “said several houses and other buildings”, by levying an annual rate (not to exceed £210 p.a.) on “the several occupiers of dwelling houses, and other premises within the said city, who are rateable” under an Act of 11 Geo.3 c. 9 (1771).482 When the necessary moneys had been raised, the powers to levy and collect would “absolutely and utterly cease to all intents and purposes whatsoever, saving only as to what shall then be actually due and in arrear”;483

(f) to authorise the borrowing by the commissioners of up to £3,000 (in £50 units), mortgaged for security against the local rates, and repayable with interest (so long as public notice of the intention to resolve to borrow had first been given);484 and

(g) to provide an appeal mechanism for persons believing themselves “aggrieved by any rate or assessment” or “by any other matter or thing to be done” under the 1801 Act.485

481 The 1801 Act, s.20. The declaration of the land being “absolutely vested” was expressed to be “for the purposes of this Act for ever”: ibid. 482 The 1801 Act, s.10. The Winchester Improvement Act 1771 (11 Geo.3 c. 9) was later repealed and replaced by the Winchester Improvement Act 1808. The 1771 Act dealt principally with paving, widening, lighting and policing the streets and passages in the city and its suburbs (and the raising of moneys for the purpose). Under the 1801 Act the commissioners were empowered to appoint remunerated collectors who would be accountable for the moneys brought in: ibid., s.11. None of the moneys so collected were to be paid to the city of Winchester corporation by way of compensation for houses or buildings owned by it and acquired by the commissioners: ibid., s.12. 483 The 1801 Act, s.13. 484 The 1801 Act, ss.14, 15. Lenders were able to assign their interests, so long as the assignments were registered with the commissioners’ clerk or the treasurer. The forms of mortgage and of assignment were prescribed in the Act, so as to make them “good, valid, and effectual”: ibid., ss.14, 16. All mortgagees were to be treated as creditors with equal status, and mortgages would be redeemed (in an order selected by ballot) as soon as the amount borrowed exceeded the amount required for the project (the "overplus"): ibid., ss.17, 18. Interest would cease running if the principal had not been claimed by the mortgagee within 3 months of the date fixed for redemption: ibid., s.19. 485 The 1801 Act, s.21. Appeal against a rate lay first to a meeting of the commissioners for “determination”, and then to the justices sitting in general or quarter sessions for the city. Appeal in respect of other matters lay direct to the justices: ibid. Time limits (3 months) were prescribed both for appeals and for legal proceedings under the Act generally: ibid., ss.21, 29. Sections 22-25 and 30 contained ancillary mechanical provisions relating to legal actions.

159 Status of the 1801 Act 6. The 1801 Act was designed to provide supplementary powers to the city corporation. The preamble to the Act made clear on its face that building of a replacement gaol had already commenced. The problem in 1801 was that the corporation had inadequate powers to raise further moneys or to acquire the additional land it needed.

7. It is clear from the scheme of the 1801 Act that the corporation believed it had sufficient power to commence the replacement gaol project. The 1801 Act does not authorise retrospectively works undertaken (although it did remove all doubt about ownership of the gaol site by vesting it in the commissioners “for ever”).486 On the other hand, the 1801 Act neither recites the source of that power, nor seeks to amend previous enabling legislation. The Act appears to stand alone.

8. As shown below, construction of the new city gaol was complete by the end of 1801, although the accounts do not appear to have been closed for another 34 years. The gaol building was demolished by 1876. The existing Winchester Prison (built in 1849, and now within the control of HM Prison Service) is sited elsewhere in the city.

9. The powers contained in the 1801 Act have become spent, and the Act may now be repealed.

45 Geo.3 c.xliv (1805) (Portsmouth Gaol Act 1805) Background and purpose 10. In Portsmouth (then a borough located within the county of Southampton), by 1805, the municipal corporation had formed the view that the existing borough gaol (which it owned) was “neither sufficiently large and spacious, [n]or in other respects well adapted for the reception, confinement, and separation of the felons and other persons confined therein”, and that a new gaol should be built “in a more commodious situation”.487

11. The corporation decided that the existing gaol should be sold, and the sale proceeds applied “towards the purchasing of land and the expense of building such

486 The 1801 Act, s.20 (see above). 487 Preamble to 45 Geo.3 c.xliv (1805) (“the 1805 Act”), being “An Act for building a new Gaol in the Borough of Portsmouth, in the County of Southampton.” This Act has been assigned the short title of Portsmouth Gaol Act 1805 in the Chronological Table of Local Legislation.

160 new gaol”.488 It was anticipated, however, that a financial shortfall (both for the building project and for its future maintenance) would arise, and that specific statutory authority would be required to enable the gap to be bridged. To this end the corporation promoted what was to become the 1805 Act.

12. The purpose of the 1805 Act was to provide for, or authorise, the following actions (in broad terms): (a) that the mayor and the borough justices (acting by a majority) purchase land or lands which they deem “proper and convenient for the building of such new gaol”;489

(b) that the borough justices (acting in general or quarter sessions) should appoint a treasurer, a surveyor or surveyors, collectors of rates and “such other officer or officers as they shall judge necessary and proper for the purposes of this Act”, which appointees were to hold their posts for as long as the justices thought appropriate, and were to provide security “for the faithful discharge of their respective offices”;490

(c) that the justices raise the necessary moneys for the project by assessing, levying and collecting a rate on the occupiers of various hereditaments within the borough (not exceeding 1 shilling in the £), which would be applied “towards the erecting and building of the said intended new gaol, and rendering the same fit for the reception, confinement, and separation of prisoners and for repairing, supporting, and maintaining the same, when so erected and built”;491 and by borrowing moneys (and paying interest) secured on the special rate fund;492

488 The 1805 Act, preamble. 489 The 1805 Act, s.1. The land or lands to be acquired were not to exceed 3 acres in whole; were to cost no more than £1,800 (including associated expenses); and were “to be conveyed unto and to the use of the said mayor, aldermen, and burgesses, and their successors” (that is to say, to the borough corporation for the Act’s purposes): ibid. 490 The 1805 Act, s.2. 491 The 1805 Act, s.3. Sections 4 to 8 set out the rubric for publication (in the parish churches for Portsmouth and Portsea), recording and (where payment in default) recovery of rates, and for the accounting for moneys collected. Rateable occupiers believing themselves “aggrieved or overrated” under the Act were given a right of appeal to the borough general quarter sessions: ibid., s.7 (which incorporated the provisions of 41 Geo.3 c. 23 (1801) [now repealed] relating to the collection of poor rates). 492 The 1805 Act, s.12. The total to be borrowed was not to exceed £10,000.

161 (d) that the proceeds from the sale by the corporation of the old gaol be applied towards supplementing the special rate fund, and the fund be used for defraying the cost of obtaining the 1805 Act;493

(e) that the borough justices be required (within 6 months of the Act being passed) to meet in general or quarter sessions to determine a plan for the new gaol, and then to award the building contract, the gaol to “comprise proper apartments for the imprisonment of debtors under process of the court of record of the said borough, and for the purposes of a house of correction” together with “proper and convenient courts, yards, outlets, and avenues thereto”;494

(f) that, once complete, the continuing expense of furnishing, repairing, maintaining and insuring the new gaol should fall on the borough’s special rate fund “for ever thereafter”;495

(g) that the justices be empowered to purchase “such utensils, chattels, and materials whatsoever, as shall be thought proper and necessary for effectually employing and setting to work all or any of the prisoners”;496 and

(h) that provision be made for the conduct of legal proceedings under the Act (and for a limitation period).497

Status of the 1805 Act 13. The 1805 Act relating to Portsmouth stood alone. It was designed simply to facilitate the building of a new gaol (with debtors’ prison and house of correction) on a new site - by raising moneys, by acquiring land and by construction and fitting-out.

493 The 1805 Act, ss.9, 10. 494 The 1805 Act, s.13. Once the new gaol, debtors’ prison and house of correction were complete, they were to be designated institutions for the use of “the said borough and the liberties thereof” and were to be within the supervision of the mayor and borough justices under the same authority as they had “over the present gaol by any law now in force”: ibid., s.14. 495 The 1805 Act, s.16. On completion of the gaol, the justices were to require the keeper of the old gaol “with all convenient speed” to transfer all prisoners in his custody to the gaol, debtors’ prison and house of correction as appropriate: ibid., s.15. 496 The 1805 Act, s.17. The materials so purchased were to be paid for from the special rate fund and, together with furniture and clothing, were to vest in the clerk of the peace for the borough: ibid., ss.17, 18. 497 The 1805 Act, ss.11, 19 and 20. The limitation period for proceedings (to be issued only in the county of Southampton) was 3 months: ibid., s.20.

162 Apart from brief reference to existing rating powers, the Act did not refer to any previous legislation.

14. As indicated below, the borough gaol was decommissioned and demolished by 1893. Today, the only prison existing in Portsmouth is HM Prison Kingston, located on Milton Road in the city.

15. The powers contained in the 1805 Act have become spent, and the Act may now be repealed.

Archive-based history 16. At various times the city of Winchester housed several different gaols and bridewells: at Westgate, at Hyde Abbey, at Jewry Street and at Romsey Road (the last-mentioned being the site of the present HM Prison Winchester, constructed in 1849).

17. The gaol, which was the subject of the 1801 Act, was built on unoccupied land adjoining the High Street on what, today, is the site of the Guildhall Tavern (located on the west side of the present guildhall). The old city bridewell had been sited on the southern side of the High Street, towards the eastern end, in a building anciently known as the Sisterne House. The bridewell had operated as such (and as a house of correction) since the late 17th century. It was set in a row of buildings, all of which were demolished under the terms of the 1801 Act so that part of the High Street could be widened to form The Broadway.

18. Demolition of the old gaol had commenced by October 1799.498 The demolition and rebuilding works appear to have halted temporarily in July 1801, but resumed by November of that year.499 The gaol accounts were not “finally settled” until 1835.500

19. The new gaol appears to have closed by 1836, when the borough magistrates decided to contract with the county justices for the provision of custody services at

498 Hampshire Record Office (HRO) ref. W/J4/10, being the bill incurred by the city for work done by Henry Lucas in pulling down the old bridewell and building a new one. 499 HRO refs.W/J4/10 (ibid.), 125M88W/1. 500 See Winchester Gaol Commissioners minute book 1812-35, final meeting December 1835 (HRO ref. W/J4/6).

163 the county gaol situated in Jewry Street.501 The city gaol building was converted into the police station for the newly-formed Winchester city police (and used for that purpose until 1873). Finally, the building was demolished in or around 1876 to make way for a new school of art and public reading room (now occupied by the Guildhall Tavern).502

20. In Portsmouth there appear to have been four gaols at various times. Two (one at Milton Road [now HM Prison Kingston] and one at St. Mary’s Road) were opened in 1877 and 1878 respectively. A third, built to house convicts on-shore (as an alternative to using hulks afloat), was resolved upon in 1850, and was constructed in the north-eastern portion of the dockyard (Portsea).503

21. The fourth - and earliest - gaol, located between Penny Street and St. Nicholas Street (which site is relatively close to the High Street and the dockside), appears to be the gaol mentioned in the 1805 Act. Suitable land (partly developed) had been purchased on behalf of the borough justices under the terms of the Act by July 1805, and the new gaol was complete and operational by 1808.504

22. This gaol, sited close to one of the (then borough) police stations, was later decommissioned and the building used to house some of the city’s archives.505 It was operational in 1850506, and as late as 1877 (when the Kingston gaol was opened)507, but was decommissioned by 1881. The building was demolished between 1891 and 1893 when the site was redeveloped for an extension to the Clarence Barracks.508

501 HRO ref. W/B5/30/1, Police and Watch Committee minutes (Winchester Borough Council) 1835-57. 502 HRO ref. W/B3/1 for minute of School of Art Committee recommending rebuilding (October 1875). We are most grateful to Stuart Bridges, archivist in the Hampshire Record Office, for providing the historic data shown above relating to the Winchester city bridewell and its demise. 503 The Portsea prison closed in 1896 and was demolished by 1900: see W.G. Gates The History of Portsmouth (1900), p. 552. 504 Portsmouth City Records Service, document S12: Minutes of the Mayor and Justices relating to the building of a New Gaol, 1805-19 (minute for 20 July 1805). The justices agreed the purchase price of £1,500 plus legal costs (seemingly within budget). See also P. Thompson, Portsmouth Borough Gaol in the 18th Century (Portsmouth Paper No.33). 505 See Local History: Guide to Sources at Portsmouth Records Office and Portsmouth Central Library at www.portsmouthrecordsoffice.co.uk/local_history_guide.doc 506 See Lt.Col. Jebb’s Report on the discipline and management of the convict prisons, 1850 (HMSO, 1851) at www.bopcris.ac.uk/cgi-bin/displayrec.pl?searchtext=portsmouth&record=/bopall/. The 12th Report of Inspectors of Prisons – Southern & Western District (1847/48) refers to Portsmouth Borough Gaol and House of Correction: see www.institutions.org.uk/prisons/England/HAM/portsmouth_gaol.htm 507 The borough gaol is listed in, for example, the Calendars of Quarter Sessions of the Borough of Portsmouth from January 1871 until, and including, January 1878: Portsmouth City records ref. S7/4. 508 The gaol does not feature in the 1881 census returns for Penny Street. The historic data above has kindly been provided by the Portsmouth City Museum and Records Service.

164 Extent 23. The 1801 Act (relating to Winchester) applies locally only within the county of Hampshire in England.

24. The 1805 Act (relating to Portsmouth) applies locally only within the county of Hampshire in England.

Consultation 25. The Home Office, HM Prison Service, Hampshire County Council, Portsmouth City Council and Winchester City Council have been consulted about this repeal proposal.

(32-195-452) LAW/005/002/06 01 February 2008

165 COUNTY GAOLS GROUP 10 - HERTFORDSHIRE ______Reference Extent of repeal or revocation ______12 & 13 Will.3 c.21 (1700) The whole Act. (Removal of Hertford Gaol Act)

15 Geo.3 c.25 (1775) The whole Act. (Hertford Prison Act) ______

12 & 13 Will.3 c.21 (1700) (Removal of Hertford Gaol Act 1700) Background and purpose 1. Until the very end of the 17th century, and into the early 18th, the power to build and manage county gaols was vested in the local sheriffs. It was only in 1698 that the local justices started to secure limited control of the county gaols509, a control which extended to building new facilities and repairing existing stock, but which fell short of the power to manage gaols and their inmates.

2. Many gaols at this time had fallen into disrepair and their condition produced a significant health hazard.

3. In Hertfordshire, the local justices sought, and in 1700 obtained, a private and personal Act510 which was designed to supplement the public general Act powers contained in the 1698 Act. The then Hertford gaol was sited “in the middle of a street inclosed by adjacent houses which hinder the prisoners from having the benefit of the aire in their confinement”.511 The justices intended to purchase an alternative site elsewhere in the town for the purpose of erecting a new gaol.

4. The 1700 Act referred specifically to the powers contained in the 1698 Act, which had enabled justices to build and repair gaols, but which omitted to provide

509 11 Will.3 c.19 (1698) (“An Act to enable the Justices of the Peace to build and repair Gaols in their respective Counties”) (“the 1698 Act”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784). Rebuilding of gaols was also provided for in the 1784 Act. 510 12&13 Will.3 c.21 (1700) being an Act relating to “the gaol or prison for the county of Hertford situate in the town of Hertford” which was “not only much out of repair but very incommodious and inconvenient” so that it needed to be removed “to some more convenient place in the said town of Hertford” (“the 1700 Act”). The Parliamentary Records Office version of the 1700 Act seems to carry neither a long nor a short title. 511 The 1700 Act, preamble (first part).

166 power “for the raising money for that purpose”.512 The 1700 Act specifically granted to the county justices for Hertford[shire] the ability, sitting in general quarter sessions, to “raise and levy” by rate sufficient sums of money “that shall by them [be] adjudged necessary” to purchase “a convenient place or a piece of ground” for rebuilding of the gaol.513 The 1700 Act specifically limited the justices to raising moneys in accordance with “the directions of the said recited Act” of 1698.514

5. Unlike later local Acts which were promoted for the purpose of rebuilding gaols in other counties, the 1700 Act was silent as to details relating to, for instance, the amount of moneys to be raised or the location of the new site or the mechanics of effecting land purchase.

Status of the 1700 Act 6. The 1700 Act made patent that, although it applied only to the county of Hertford, it was designed to supplement the powers contained in the 1698 Act (which had general effect).515

7. The whole of the 1700 Act may now be repealed on the basis that its purpose (as illustrated by the historical note at paragraphs 13 to 16 below) was overtaken by events, and the Act has become spent.

15 Geo.3 c.25 (1775) (Hertford Prison Act 1775) Background and purpose 8. In 1775 a further Act was sought and obtained by the county justices in order to tackle the (seemingly continuing) problem of the common gaol for the county of Hertford[shire] which had now become even more unhealthy and fever-ridden. This gaol was described as being “situate near the middle of the Town of Hertford, and so closely encompassed by buildings that it is impossible to accommodate the unhappy persons confined therein with a sufficient supply of fresh air”.516 Its location meant that the “gaol distemper”, which brought a “malignant fever” to the inmates, would on occasion spread beyond the gaol’s confines and infect the townspeople.517

512 The 1700 Act, preamble (second part). 513 The 1700 Act, s.1. This Act does not have section numbers or side headings and, apart from its preamble, contains what appears to be only a single section. 514 The 1700 Act, s.1. 515 The 1700 Act, preamble (second part). 516 Preamble to 15 Geo.3 c.25 (1775) (“The 1775 Act”). 517 The 1775 Act, preamble.

167 9. The 1775 Act518, which was designed to facilitate the demolition of the existing gaol and to erect a replacement in “a more airy situation”, acknowledged that the county justices had inadequate power, without a new Act, to take steps to purchase the necessary lands “within or near to the said Town of Hertford” and then to undertake the building programme.519

10. In order to fulfil its purpose, the 1775 Act authorised (in broad terms) the following steps: (a) to negotiate with the owners520 of “any houses, buildings, lands, tenements or hereditaments” which properties the county justices felt should be acquired for the Act’s purposes521 and, on payment of the contracted or tendered purchase price (as authorised by the justices sitting in general or quarter sessions), to vest the properties in themselves;522

(b) to enable persons or bodies with legal incapacity to sell and convey land and buildings;523

(c) to enter into contracts for such houses or buildings as may be necessary to be demolished, the reusable materials to be sold, and the proceeds put towards the cost of rebuilding;524

(d) to “cause to be built and finished” a “convenient gaol, for the confinement of criminals, debtors and others”, together with a gaoler’s house and other requisite buildings (re-using, where appropriate, materials from the old gaol which would be dismantled and demolished);525

518 “An Act for taking down the Common Gaol of the County of Hertford, and for building a New Gaol in a more commodious Situation”. 519 The 1775 Act, preamble and s.1. (The sections in the Act are not numbered but, for ease of reference, we have adopted a numbering arrangement based on the sequence of section side headings). 520 This included persons having an interest in the relevant property. 521 The 1775 Act, s.1. Unlike local legislation in this period for some other counties, the 1775 Act did not purport directly to place an upper ceiling on the amount of moneys to be spent on land acquisition and building. 522 The 1775 Act, s.4. 523 The 1775 Act, s.2. 524 The 1775 Act, s.5. Material from the old gaol would also be sold (where not re-used) and the proceeds re-invested in the new building: ibid., s.9. 525 The 1775 Act, ss.6, 9. The new gaol was to be designated “a publick and common gaol for the said County” which would be “maintained, supported and repaired” in the same manner as applied to other

168 (e) to raise the necessary moneys (within the space of four years from the passing of the Act) by levying a rate based on the annual value of lands, tithes, tenements and the like situate within the “parishes and places” in the county;526

(f) to provide a mechanism for the collection of moneys by the churchwardens and overseers of the poor in each “parish and place” in the county, and the transmission of those moneys to the high constables for each hundred or division in the county within a set time;527

(g) to provide for the handling of any surplus moneys raised (and not used for the statutory purpose) by payment into the “County Stock” for appropriate use, and for the making out of annual accounts;528 and

(h) to provide for a right of appeal by persons “aggrieved” (through assessment or overcharge) to the county justices sitting at quarter sessions for such order as “shall seem meet” to the justices, and for a time limit on any legal proceedings under the Act.529

Status of the 1775 Act 11. The 1775 Act made clear (in its preamble) that “the aid of an Act of Parliament” was necessary to fulfil the justices’ objectives, but it was silent as to the existence of previous legislation (except that relating to the assessment, collection and levying of county rates).530 In the previous year Parliament had passed legislation of national application which was designed to address the growing problem of “gaol distemper”. It required local justices, amongst other things, to ensure that cells were kept clean and were provided with a supply of fresh air.531 It

gaols in the kingdom: ibid., s.6. Responsibility for keeping prisoners in the gaol would be vested in the sheriff of the county: ibid., s.7. 526 The 1775 Act, s.10. All hereditaments would be affected but for those specifically excepted in the Act. The rate was to be capped at 8d. in the £ overall, and 3d. in any one year: ibid., s.10. The persons or bodies excepted (either in whole or in part) included the Liberty of St. Alban (without an ‘s’), the Earl of Salisbury’s hundred court (for the hundred of Cashio or the Liberty of St. Albans), hereditaments within the Borough of St. Alban, and any “parson, vicar or curate” in respect of his house or lands he held by virtue of his office: ibid., ss.11-14, 21, 22. 527 The 1775 Act, ss.15-20. 528 The 1775 Act, ss.24-26. 529 The 1775 Act, ss.28, 29. 530 The 1775 Act, s.16 (citing an Act passed in 1738 (12 Geo.2 c.29)). 531 14 Geo.3 c.59 (1774) being “An Act for preserving the Health of Prisoners in Gaol, and preventing the Gaol Distemper”.

169 was probably this legislation which prompted the Hertfordshire justices more urgently to undertake a rebuilding programme.

12. For the reasons explained below, in paragraphs 13 to 16, because the Hertford gaol was built on acquired land and later decommissioned, the whole of the 1775 Act became spent and may now be repealed.

Archive-based history 13. A gaol was built in Hertford at Fore Street in 1702, presumably pursuant to the powers in the 1700 Act. As the years went by the gaol suffered operational problems: it was in constant need of repair and became insecure. In the early 1770s the responsible authorities decided that a new gaol should be erected to replace the Fore Street building.

14. Having obtained the 1775 Act powers, the local justices selected a site off the Ware Road for rebuilding (having identified and appraised several possible locations in the town). The Ware Road land was purchased for £500 and the building and construction work cost £6,000. This gaol remained operational until closure in 1878 (or thereabouts), at which point the then inmates were transferred to facilities at St. Albans.532

15. A county gaol at Hertford is recorded as existing in 1837533, and separate county quarter sessions records exist for both the gaol and the house of correction from 1758 (showing various estimates, accounts and orders, and matters relating to prisoners and to staff).534

16. Today there is no prison in Hertford. The only prison operating (under the auspices of HM Prison Service) in Hertfordshire is located at Hemel Hempstead.535

532 We are indebted to the Senior Archivist at Hertfordshire County Council for this information. Some of the details are drawn from S.Walker Crime in Hertfordshire: Law and Disorder, pp. 78-9, and supporting evidence is to be found in, for example, the County Gaol Papers 1b - Leases and agreements relating to County Gaol and the House of Correction at Hertford (land and buildings), 1592-1844. 533 Second Report of the Inspectors appointed under the provisions of the [1835] Act 5&6 Will.4 c.38, To visit the Different Prisons of Great Britain (1837), pp. 358-373 (Hertford County Gaol). 534 Reference to a gaol (beset with “gaol distemper”) at Hertford in 1748-9 also appears in William Ellis’ The Country Housewife’s Family Companion (publ. 1750). 535 HMP The Mount (opened in 1987 as a young offenders institution).

170 Extent 17. The 1700 and 1775 Acts apply locally only within the county of Hertfordshire, in England.

Consultation 18. The Home Office, HM Prison Service and Hertfordshire County Council have been consulted about this repeal proposal.

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171 COUNTY GAOLS GROUP 11 - NORFOLK ______Reference Extent of repeal or revocation ______3 Geo.4 c.iv (1822) The whole Act. (Norfolk County Gaol Act) ______

3 Geo.4 c.iv (1822) (Norfolk County Gaol Act 1822) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.536 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.537 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Norwich (Norfolk) in 1820, the grand jury had made a “presentment” to the county assizes as to the condition of the county gaol then sited within Norwich castle. The report indicated that the gaol was “too small and insufficient in point of size for the accommodation of the prisoners confined therein, so as to render it impossible to comply with the directions of the several Acts of Parliament for the proper separation of the prisoners confined therein”.538

3. Prior to 1820, in the late 1780s, two Acts - having national application - had been passed by Parliament to encourage and facilitate the rebuilding of county gaols and houses of correction by county justices. Each of those Acts required the justices

536 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 537 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act).

172 to design the institutions so that prisoners could be held in “separate and distinct places of confinement”, segregating prisoners by gender as well as by status, ie. convicted felons separated from those on remand pending trial, those held for misdemeanours, and those held as debtors.539

4. The Norfolk justices promoted what was to become the Act of 1822, designed to facilitate delivery of the gaol-rebuilding project and to authorise provision of a new shire house with court accommodation (for the assize and quarter sessions hearings) and county records office.540 The 1822 Act had the following purposes (set out here in broad terms): (a) to authorise the county justices, or their appointed surveyor, (using contractors as necessary) “to lay out, design, make, build, and erect on the said Castle Hill, an additional gaol and house of correction” for the county’s use, together with the necessary accommodation for the keeper or gaoler, and for offices, and “water courses, and other conveniences for the same”; to extend or alter the existing gaol located “within the walls of the ancient castle of Norwich”; and to design and construct on Castle Hill, or in the surrounding Castle Ditch or garden, a new shire house to accommodate “proper and convenient courts of justice”, jury and witness rooms, and offices to preserve “the public records of the county”;541

538 Preamble to 3 Geo.4 c.iv (1822) (“the 1822 Act”), being “An Act to enable His Majesty’s Justices of the Peace, acting for the County of Norfolk, to build an additional Gaol, House of Correction, and Shire House for the said County, and for other Purposes relating thereto”. 539 The two Acts were 22 Geo.3 c.64 (1782) which dealt with houses of correction (section 1, which required the provision of “separate apartments” for prisoners convicted of felony and those convicted of theft or larceny, and for women prisoners) and 24 Geo.3 Sess.2 c.54 (1784) which dealt with gaols (quotation above taken from section 4). 540 The 1822 Act, preamble. The Act recited the justices’ belief that additional Parliamentary authority was required because “some of the objects herein-before mentioned cannot be obtained under the provisions of” the then existing legislation including, specifically, the Act of 24 Geo.3 Sess.2 c.54 (1784) (see above). Notwithstanding that concern, however, the 1822 Act, s.2 provided that both the new gaol and the extended gaol in Norwich should, so far as practicable, be “in conformity with the directions contained in the said [1784] Act”. 541 The 1822 Act, s.1. The justices were also authorised to determine the nature of the building materials for the construction, and the manner of water supply. They were given power generally, in connection with delivery of the project, to take any step which they “may think requisite or expedient for effectuating the purposes of this Act”: ibid. Once the additional gaol and the house of correction had been completed they were to be designated, respectively, the “common county gaol” (operating in conjunction with the old castle gaol) for confining felons, debtors and other committed prisoners, and “one of the common houses of correction of and for the said county” for imprisoning “felons and other persons from time to time committed thereto” under legal process: ibid., s.6. Responsibility for safe custody rested with the high sheriff and the relevant gaoler or keeper, each of whom was answerable to the county justices, whose existing powers relating to gaols and houses of correction were extended to cover the new facilities.

173 (b) to permit the demolition of the old shire house and a building (unspecified) adjoining the castle, and either to sell the salvaged materials or to re-use them in the construction of the new gaol, house of correction and shire house;542

(c) to provide that all building materials acquired by the justices for the project, and all furniture, should be vested in the justices (who would be entitled to indict any person who damaged or destroyed the new gaol, house of correction, or shire house, or who interfered with any of the building materials);543

(d) to provide that the justices should keep the new buildings and furnishings “in good condition and repair”, and insured, at the expense of the general county rates or stock and that, through quarter sessions, they should be able to make the necessary orders;544

(e) to authorise the justices to hold prisoners temporarily in other locations within the county of Norfolk, or the city and county of Norwich, whilst the building works were in train (the cost to be met from a special rate), on the basis that the prisoners remained under the jurisdiction of the gaoler or keeper of the original institutions;545

(f) to authorise the holding of assizes and sessions hearings in the Norwich city guildhall (or in any other “convenient” building in the city) pending completion of the new shire house and courts;546

(g) to authorise the justices to raise moneys for the rebuilding project (and for promoting the 1822 Act) by levying and collecting a rate from every

542 The 1822 Act, s.1. The justices were also to use the proceeds of sale in furnishing and fitting-out internally the new gaol (and gaoler’s house), the extension to the old gaol in the castle, and the new shire house and records office. 543 The 1822 Act, s.3. The justices were to hold the various buildings in trust for the county, and to allow the shire house (and its grand jury room) to be used by the assizes, quarter sessions and other courts “for the public administration of justice”, by meetings “for transacting the public affairs and business of the said county”, and “for all such other public uses and purposes” as appeared proper: ibid., s.4. 544 The 1822 Act, s.6. 545 The 1822 Act, ss.7, 8. The justices were authorised to deploy criminals sentenced to hard labour, and any other prisoners who consented, on tasks both within and outside the additional gaol, and on any works relating to the rebuilding project, “without the same being deemed or taken to be an escape”: ibid., s.9. 546 The 1822 Act, s.10. The temporary location was deemed, by section 10, “the usual place for holding” the court hearings, and section 11 conferred formal validity on all such proceedings.

174 town and place within the county in accordance with then existing rating legislation547 and to apply any surplus, which was not required for “the usual and customary expenses” of the county, towards the purposes of the 1822 Act;548 and

(h) to provide for the conduct of legal proceedings by the justices, and for appeal to quarter sessions by persons aggrieved by “any assessment or other act to be made or done” under the Act.549

Status of the 1822 Act 5. The 1822 Act was designed to supplement, with local powers, the existing limited national powers550 relating to the building and repair of gaols by county justices. Although the Act incorporated the earlier powers, and thus was relatively short, for the purpose of the Norfolk county gaol at Norwich castle (and the court and records house) it stood alone.

6. The Act contained a provision which had the effect of causing certain of its powers to expire once the new gaol and other buildings had been erected and fitted- out.551 The remainder of the Act remains live, although little could now be accomplished under it without a means to raise and spend moneys.

7. Neither the county gaol nor the house of correction exist today. They were decommissioned in 1887.

8. The shire house does exist. It is currently used by Norfolk Museums and Archaeology Service as an archive storage unit. The court rooms now have no judicial function.

547 The 1822 Act, ss.12, 13 and 18. The rate was to be assessed by the justices and collected by the county treasurer. Tenants were entitled to make a deduction from rent due to their landlords to take account of up to 2/3rds of the rates paid. By section 17 of the Act, the powers relating to assessing and collecting rates for the project were immediately to “end and be no longer in force” once the purposes of the Act were declared by the justices as having “been executed, performed, and fully completed”: ibid., s.17. Any balance of moneys then remaining was to be transferred to aid the county rate. 548 The 1822 Act, s.14. The county treasurer was obliged to maintain separate accounts for moneys payable under the Act, and “if required” he had to attend the general quarter sessions in order to explain the moneys needed to be raised on the rates: ibid., s.15. The treasurer, high constables and other officers involved in the rating process were to be remunerated for their "extra trouble" under the Act: ibid., s.16. 549 The 1822 Act, ss.5, 19. The clerk of the peace for the county was to represent the county justices in any legal proceedings, and was to be reimbursed his expenses by the county treasurer from the public stock and general county rates. 550 Dating from 1784. 551 The 1822 Act, s.17, relating to rating.

175 9. The only prison under the auspices of HM Prison Service, operating within the city of Norwich, is HMP and YOI Norwich, located at Knox Road, just off Plumstead Road, Norwich. This prison was built in 1887 to house the prisoners from the county gaol built pursuant to the 1822 Act.

10. Accordingly, the 1822 Act is now spent, and may be repealed in whole.

Archive-based history 11. The Normans built Norwich castle between 1066 and 1075 and the first gaol was built on the site in 1165.552 By the 17th century, the county justices had condemned the gaol as “not fitting to detaining prisoners in”.553 There were many attempts to make the building fit for human habitation, but none were successful.

12. The new gaol and house of correction, built pursuant to the 1822 Act, were commenced on the site in 1824. They were completed by 1828 at a cost of £50,000.554 Shortly after, the facing on the side of the keep was noticed to be in bad repair and from 1829 to 1838 the keep was refaced with Bath stone.555

13. In 1887, the Norwich Corporation bought the castle and converted it into a museum and art gallery, which was opened in 1894 by the Duke and Duchess of York.556 The prisoners were moved to a new purpose-built prison on Mousehold Heath, off Plumstead Road. This prison remains there to this day. It is known as HMP/YOI Norwich, and houses male adults and young offenders on separate sites.557

14. The first shire house was built next to the castle in 1270 and was subjected to continual redevelopment until 1789, when Sir John Soane constructed a new shire hall on the same site. William Wilkins won a competition to rebuild the shire hall (completed 1824) pursuant to the 1822 Act. It was built at the base of the castle mound within the castle boundaries. The shire hall was connected to the castle by an

552 See Old Norwich: Castle at http://www.historicalnorwich.co.uk/castle2.htm 553 Ibid. 554 See the Norfolk Record Office Information Leaflet 41: Prisons and Prisoners in Norfolk at http://www.archives.norfolk.gov.uk/leaflets/nroil041.htm 555 See Old Norwich: Castle at http://www.historicalnorwich.co.uk/castle2.htm 556 Ibid. 557 See Norwich at http://www.hmprisonservice.gov.uk/prisoninformation/locateaprison/prison.asp?id=355,15,2,15,355,0

176 underground tunnel which was used to bring the prisoners straight through to the courts from the prison.558

15. The shire hall contained the county’s courtrooms until 1988 when the civil and criminal courts moved to a new location near the cathedral. The civil courtroom became the Regimental Museum, but the other courtroom remained as part of Norwich Castle Study Centre.559

Extent 16. The 1822 Act applied locally only within the city of Norwich in Norfolk, in England (although today Peterborough is situate within Cambridgeshire).

Consultation 17. The Home Office, HM Prison Service, Norfolk County Council and Norwich City Council have been consulted about this repeal proposal.

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558 Information kindly provided by Philip Arkinstall, Derek Briggs and Alison Naylor of Norwich Castle Museum and Art Gallery; and Freda Wilkins-Jones of the Norfolk Record Office.` 559 See Norfolk Museums & Archaeology Service: Norwich Castle Study Centre at http://www.museums.norfolk.gov.uk/default.asp?Document=210.20&Image=249&gst=

177 COUNTY GAOLS GROUP 12 - NORTHAMPTONSHIRE ______Reference Extent of repeal or revocation ______2 & 3 Vict. c.lxvii (1839) The whole Act. (Peterborough and Nassaburgh Gaol Act) ______

2 & 3 Vict. c.lxvii (1839) (Peterborough and Nassaburgh Gaol Act 1839) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.560 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.561 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Northamptonshire, by 1839, the county justices acting for the “liberty or soke” of Peterborough city and the “hundred” of Nassaburgh were concerned as to the condition of the common gaol and the (separate) house of correction. Although both institutions were located in the city, they served the two communities.562

3. The buildings were recorded as being “of great antiquity, inconveniently situated, too small, and not properly constructed for the reception, confinement, and

560 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 561 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 562 Preamble to 2 & 3 Vict. c.lxvii (1839) (“the 1839 Act”), being “An Act for building a new Gaol for the Liberty or Soke of Peterborough and Hundred of Nassaburgh in the County of Northampton, and for other Purposes connected therewith”. The old gaol was located in Minister Yard within “the city or borough of Saint Peter otherwise Peterborough”, and the house of correction in Cumbergate Street in St. John the Baptist’s parish.

178 classification of the prisoners usually confined therein”.563 The justices were of the view that it “would be of great public utility” if replacement facilities could be “speedily erected” in a single new building, but that undertaking this project would require Parliamentary authority to supplement “the laws now in force”.564 To that end, the justices promoted the 1839 Act.

4. The broad purposes of the 1839 Act were as follows: (a) to sanction the county justices designing, siting and constructing a new, combined, common gaol and house of correction for receiving “debtors, criminals, and others”, and fitting it out, for the service of the locality;565

(b) to empower the justices to purchase (compulsorily if necessary) the freeholds of various parcels of land within the parish of St. John the Baptist, together with such other land within Peterborough or Nassaburgh “which may appear to them proper or convenient” for the Act’s purposes;566

563 The 1839 Act, preamble. Responsibility for keeping this old gaol in good repair, and for ensuring “the safe custody of all debtors confined in the said gaol” by order of any superior court of record at Westminster, lay with the Marquis of Exeter who held the office of keeper by virtue of being lord paramount of the hundred and high bailiff of the “liberty or soke and hundred”: ibid., s.29. The release of the Marquis of certain of his responsibilities by the 1839 Act (see below) was not to be construed as diminishing any other of his “liabilities, rights, liberties, immunities, exemptions, franchises, and privileges” which he held by virtue of his offices of lord paramount of the hundred (Nassaburgh) or high bailiff (Peterborough): ibid., s.70. 564 The 1839 Act, preamble. The single building would achieve consolidation of the operations, would be built “in a more open and airy” location, either within the city “or on land adjoining thereto”, and would provide for the “separation, employment, and regulation of the [confined] prisoners”: ibid. 565 The 1839 Act, s.1. The facility was to have adequate yards, “out-offices and other conveniences”, together with an infirmary, a chapel, and a gaoler’s residence. Amongst other things, the justices were also required to determine how the gaol complex would be provided with a water supply and drainage, and how in the future it would be “preserved and kept in good repair and order”. To achieve the Act’s various purposes, the enabling powers vested in the justices were expressed in wide terms: ibid. The gaol was to be designed so that it was surrounded by an undeveloped zone 30 feet wide “at the least”, in order “at all times to preserve a free circulation of air” around the complex: ibid., s.47. Once the new gaol complex was complete, all the prisoners were to be transferred to it, and “immediately thereupon” the old gaol and house of correction were to cease to have operational status.The gaol buildings and site would revert to the Marquis, and the house of correction to the “party trustees”: ibid., s.30. 566 The 1839 Act, s.2. The parochial lands (owned in the main by the dean and chapter or the lord bishop) were described in the 1839 Act, sch 1. The justices were empowered to acquire (from whatever source) up to a maximum of five acres of land for the project, which land was to be held in trust by the clerk of the peace or other nominee. However, the power to acquire was time-limited. The justices had five years from the passing of the Act either to purchase the various land parcels or to secure formal valuation assessments, and on expiry of the period the compulsory powers would lapse: ibid., s.25. The form of conveyance was prescribed in section 3 of the Act.

179 (c) to provide legal mechanisms for effecting the valuation and transfer of land (including the payment of compensation and making of good title);567

(d) to authorise the justices to dispose (by private sale or public auction) of lands acquired which became surplus to requirements, subject to a “right of pre-emption”;568

(e) to vest in the justices ownership of all building materials utilised in the project, and all furnishings and utensils acquired for the two institutions;569

(f) to designate the new gaol and house of correction (on completion) as the common gaol and the common house of correction for Peterborough and Nassaburgh for the holding of felons, debtors and other persons committed by legal process; and to transfer to the justices for the district the responsibility for future maintenance of the fabric and furnishings (which would be funded from the “rates, stocks, or funds” of the liberty and hundred);570

567 The 1839 Act, ss.3-24. The Act provided for (amongst other matters): transfer of unencumbered title by persons or bodies with legal incapacity (ibid., s.3); determination of value of land and compensation by special jury (or the justices) where the owner was resident abroad or untraceable, or refused or was unable to negotiate or to sell, and apportionment of moneys where several interest-owners involved (ss.4-6, 9); payment of compensation into the Bank of England, to be invested and applied by direction of the Court of Exchequer, or (where less than £200) by appointed trustees or the justices (ss.10-13); a rebuttable presumption that the possessor of land could make good title, and for the passing of title on payment or tender of compensation (ss.14, 18); the ascertaining and bearing of the costs of purchase (ss.15-17); the purchase and extinguishing (wholly or partially) of incumbrances on title (if any) (s.19); and the acquisition of mortgages, leases and short tenancies (ss.20-24). 568 The 1839 Act, s.26. In the first instance the justices were required to offer surplus lands to those persons (being in England and having legal capacity to purchase) who owned property which “immediately adjoin[ed]”: ibid. The power to sell surplus land was time-limited to 10 years from the Act’s passing; but any unsold land still surplus to requirements two years after completion of the gaol and house of correction would then automatically vest in the adjoining landowner. 569 The 1839 Act, ss.27, 55. The justices were empowered to bring proceedings for any theft of, or damage to, or interference with, the construction materials; and all existing statutory powers relating to “wilful damage or injury to any gaol or house of correction” were deemed to be extended to the Peterborough and Nassaburgh justices in respect of the new gaol complex: ibid., ss.27, 28. Likewise, misappropriation of any “furniture, utensils, chattels, provisions, clothing, or materials” used in the institutions was made an offence: ibid., s.56. 570 The 1839 Act, s.29. In consideration of the transfer of responsibility, and for being “ever absolutely discharged” of liability - except for liability to pay rates as all other occupiers of property - the Marquis of Exeter (as then keeper) paid the justices £500: ibid., ss.29, 31. The discharge operated from the time of payment and not from the time of prisoner transfer: ibid., s.32. The justices were then empowered to appoint and supervise the keeper (who would be salaried), to maintain the prisoners, and to effect fire insurance cover for the buildings and contents (and to rebuild in the event of conflagration): ibid., s.29.

180 (g) to authorise the justices, through general or quarter sessions, to raise moneys for the land acquisition and building project (to a maximum of £10,000) by determining and levying an annual rate on all the hereditaments within the liberty and hundred, apportioned according to rateable value;571 and to provide for collection of the rates levied;572

(h) to provide for the raising of moneys by mortgage loans secured on the rate;573 and for the use of the moneys raised by rate and by loan to discharge various expenses;574

(i) to require the justices to appoint (with salaries) a gaoler, keeper, governor, chaplain, surgeon and other appropriate officers;575

(j) to require the justices (through general or quarter sessions) to make and certify regulations for the proper governance of the new gaol and house of correction,576 and to appoint from amongst their number a

571 The 1839 Act, ss.33, 34. The rate (whose product was not to exceed £900 in any one year) was to be raised and collected uniformly in accordance with the rubric for levying the poor rate in the district. It was not to be levied on “the cathedral church, and all churches, chapels, and burial grounds, and places of religious worship tolerated by law”, although it did not affect the power to raise other rates “necessary for the ordinary expences of the liberty”: ibid. 572 The 1839 Act, ss.35-39. The sections provided for: the levying of distress on goods for those in default of payment; the proper accounting for moneys collected (with power to commit defaulters); the collection of rates from tenants; and apportionment of rates where occupiers move away from the parish part-way through the rating year. 573 The 1839 Act, s.40. Mortgages were to be recorded in a register maintained by the clerk of the peace, were to be issued in prescribed form, and could be transferred, without restriction, by stamped deed: ibid., ss.40, 41 and sch 2. Mortgagees had no priority for redemption. After completion of the project, they were to be redeemed on an annual basis (spread over a twenty years period) in £100 tranches, using a sequence determined by lot: ibid., ss.43, 45. Pending redemption, the liberty’s treasurer was to pay half-yearly interest on the loan amounts out of the rates collected (based on the accounts previously settled by the justices): ibid., s.42. 574 The 1839 Act, s.44. The expenses were: those incurred in obtaining the 1839 Act; payment of interest on sums borrowed; paying for land acquisition; paying for erecting and fitting-out the gaol complex; and using the surplus (if any) for the “gradual discharge of the principal sums” borrowed: ibid. Additionally, moneys were to be held back for land tax liabilities accrued on the new buildings: ibid., s.46. Audited annual accounts (certified by the justices) had to be filed by the treasurer of the liberty and hundred with the clerk of the peace, and be made available for public inspection: ibid., s.69. 575 The 1839 Act, s.48. The various appointees were to hold office during good behaviour (for which they were to provide “reasonable and sufficient” security): ibid. No holder of the office of bailiff for the liberty and hundred was eligible to be appointed gaoler, keeper or governor: ibid., s.49. 576 The 1839 Act, s.50. The “rules, orders, and regulations” (which were not to “be contrary or repugnant to the laws of that part of Great Britain and Ireland called England” or any other provision in the 1839 Act) were to govern, amongst other things: the separation, classification and supervision of prisoners, their diet and clothing, employing and “reforming” them, and securing “cleanliness, temperance, and a decent and orderly behaviour” as well as “a just and humane treatment” for them; restricting outsiders from providing unauthorised supplies (including liquor); and regulating visiting hours.The regulations were to be displayed conspicuously: ibid. The gaolers and keepers were required specifically not to allow “tippling or gaming” or the sale of “any wine, beer, ale, or other liquors” on the premises: ibid., s.57. Within the gaol and house of correction, debtors and convicts sentenced to transportation were to be held separately from other categories of prisoner: ibid., s.54.

181 minimum of three justices to serve as visitors to oversee the institutions’ operation;577 and

(k) to provide for the conduct of legal proceedings by the justices, and for appeal to quarter sessions by persons aggrieved by “any rate or assessment” or conviction or regulation made pursuant to the 1839 Act.578

Status of the 1839 Act 5. The principal purpose behind obtaining the 1839 Act was to secure additional powers which would permit the rebuilding of the existing district gaol and house of correction. Although the Act incorporated other - unspecified - statutory powers, in practice it stood alone. It pre-dated the national consolidation of various compulsory purchase powers in 1845. Its provisions relating to the lord of the hundred had very local, and limited, application.

6. The 1839 Act contained several time-limited provisions relating to the acquisition of land (section 25), the disposal of surplus lands (section 26), and the redemption of mortgages (sections 43 and 45). The short limitation periods facilitated the early expiry of the Act.

7. The new gaol and house of correction were both built by 1842. The buildings were decommissioned and demolished by 1961.

8. The only prison operating today in Peterborough opened in Spring 2005. It was purpose-built to house male and female prisoners, under a private finance initiative with United Kingdom Detention Services. It is not located on any of the sites of the gaols or the house of correction referred to in the 1839 Act.

577 The 1839 Act, s.51. The appointed visitors were required to inspect the state of the buildings, the conduct of the officers, and the treatment of the prisoners; to keep under review the prisons’ financial position; and to report any abuses to general or quarter sessions with a view to rectification “as soon as the nature of the case will allow”: ibid. The visitors were also required to examine and annotate the gaoler’s quarterly returns of prisoners before consideration by sessions: ibid., ss.52, 53. Individual justices were permitted to make gaol inspections when they thought fit. 578 The 1839 Act, ss.58-68. The justices were authorised to sue (and be sued) in the name of the clerk of the peace. The Act also provided for compelling witness attendance, for the manner of service of statutory notices, for prescribing the form of conviction and for levying distress as a means of order enforcement. Appeals under the procedure were to be brought within four months and only where no other legal remedy existed. Successful appeals could lead to quashing of the rate or assessment or to the award of “restitution, damages, and costs”: ibid., ss.65, 66.

182 9. Accordingly, the 1839 Act is now spent and may be repealed in whole.

Archive-based history 10. Until 1874 (when the borough was incorporated), various administrative and judicial functions for the city of Peterborough were provided by the dean and chapter of the cathedral church.579 During the 16th century the lordship of the hundred of Nassaburgh passed from the church to the sovereign, Elizabeth. She vested the privilege in the incumbent Marquis of Exeter (Lord Burghley), whose family provided a separate gaol for the soke of Nassaburgh in Peterborough until the early 19th century. The original gaol was located at Minster Yard, and the house of correction was located just off Cumbergate, until both were decommissioned and demolished pursuant to the 1839 Act, probably in the early 1840s.

11. The newly-constructed gaol and house of correction, sited behind the recently-built sessions house, were completed (again, pursuant to the 1839 Act) in 1842. The loans for funding the gaol project spanned the 20-year period 1840 to 1860.580 The gaol was decommissioned and demolished by 1961.581 Today the gaol site forms part of the grounds of Peterborough District Hospital.582

Extent 12. The 1839 Act applied locally only in the county of Northamptonshire, in England (although today Peterborough is situate within Cambridgeshire).

Consultation 13. The Home Office, HM Prison Service, Northamptonshire County Council and Peterborough City Council have been consulted about this repeal proposal.

(32-195-452) LAW/005/002/06 01 February 2008

579 The dean and chapter were the successors to the abbot as lords of the manor, with power to appoint a steward and a bailiff. 580 The Northamptonshire county archives hold architectural drawings for the new Peterborough gaol building (dated 1840) and an account book for both the construction work and the loans raised to fund the project (1840-60: ref. ML 656). 581 See The Peterborough Civic Society: The Heritage Plaque Trail at http://www.peterborough.net/civicsociety/plaque_trail.asp 582 Information kindly provided by Elisabeth Kingston, Archives Assistant at Peterborough Central Library.

183 COUNTY GAOLS GROUP 13 - NORTHUMBERLAND ______Reference Extent of repeal or revocation ______1 & 2 Geo.4 c.ii (1821) The whole Act. (Northumberland Gaol and County Offices Act)

3 Geo.4 c.lv (1822) The whole Act. (Newcastle-upon-Tyne Gaol Act) ______

1 & 2 Geo.4 c.ii (1821) (Northumberland Gaol and County Offices Act 1821) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.583 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.584 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Northumberland, the grand jury had reported in 1820 to the county spring assizes (a) that the common gaol for the county (located at Morpeth) was so “ruinous and in great decay” that there was significant risk of prisoners escaping; and (b) that the gaol was “too small and insufficient in point of size for the accommodation of the prisoners confined therein, so as to render it impossible to comply with the directions of the several Acts of Parliament, for the proper separation of the prisoners confined therein”, thus endangering their “health and lives”.585 Furthermore, the town hall at

583 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 584 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 585 Preamble to 1&2 Geo.4 c.ii (1821) (“the 1821 Act”), being “An Act to enable His Majesty’s Justices of the Peace acting for the County of Northumberland, to build a Common Gaol, House of Correction, and

184 Morpeth (which was in private ownership) had outlived its usefulness as a venue for the county justices’ Easter quarter sessions. The solution was to demolish the “gaol and prison” and to build in its place, or on some other suitable site within the county, a “new common gaol and house of correction, and also a sessions house, with all necessary and proper offices and other conveniences to the same respectively”.586

3. To this end, the county justices sought power to purchase the necessary land and to raise a county rate through an Act (because “such purposes cannot be effected without the aid and authority of Parliament”) passed in 1821. That 1821 Act enabled the justices for Northumberland, through general quarter sessions, to act in the following manner (set out here in broad terms): (a) to contract for the demolition of the existing common gaol and house of correction, clearing of the site and erecting (and furnishing) “a new gaol, keeper or gaoler’s house, and house of correction, and a proper and convenient court or sessions house, with a grand jury room and other suitable offices and accommodations for the same respectively”, to the justices’ specification;587

(b) to contract (with the moneys, “or by any other of the ways and means”, available under the Act) for the purchase of such lands or buildings as were necessary for the construction of the new gaol and appurtenances, being lands “situate, lying, and being adjoining or near” to the then existing gaol and house of correction, or lands elsewhere within the county if they provided “a more proper and convenient site” for the project and facilitated “the more easy, open, and convenient approach or road to, or communication with the said intended new gaol and house of correction and sessions house”;588 (c) to sell (or exchange) the freehold of the old gaol, or such parts as were surplus to the new requirements, for the best value which “can or

Sessions House for the said County, with suitable, convenient, and proper Offices, and other Accommodations to the same respectively; and for other Purposes relating thereto”. 586 The 1821 Act, preamble. 587 The 1821 Act, s.1. The new gaol, once erected, was to be designated “the common county gaol” (used for the imprisonment of felons, debtors and other committed persons), and the new house of correction as one of the county’s “common houses of correction” (for confining felons and others). Both institutions were to be within the control and responsibility of the high sheriff for the county, and the respective gaolers and keepers: ibid., s.7. Upkeep of, and fire insurance for, the gaol and house of correction were to be financed from the general county rates or stock: ibid., s.7. 588 The 1821 Act, s.2. On payment (either directly or into the bank of England), or on tender, of the agreed purchase moneys it would be lawful for the justices or their agents to take possession of the lands to be acquired, at which point title would be deemed to vest in the county justices: ibid.

185 may be had or gotten for the same”, and to sell or reuse the various reclaimed building materials;589

(d) to purchase all necessary materials for the new project, ownership of which would vest in the justices, as would ownership of the new gaol and court complex (to be held in trust) once built;590

(e) to move, on a temporary basis, the “felons, debtors, and other prisoners” held in the old gaol and house of correction, to the New Moot Hall in Newcastle-upon-Tyne (or to some other suitable location) pending completion of the new facilities;591

(f) to raise moneys for the building project through the county rate (which would be apportioned amongst, and levied on, individual wards and divisions within the county according to what was deemed “fair and equal”) up to 2 pence in the £ on the annual value of properties;592

(g) to facilitate and validate the purchase of land from persons or bodies under a legal disability or from those unwilling to co-operate, to provide for the appropriate application of compensation moneys in

589 The 1821 Act, s.3. The issue of a receipt for moneys paid by a purchaser would be binding evidence of the completion of the transaction: ibid. The moneys received by the justices were to be applied towards defraying the cost of carrying out the requirements of the Act and supplementing any moneys raised from the county rate: ibid., s.4. 590 The 1821 Act, ss.5, 6. The justices were to allow the sessions house to be used for the “public administration of justice, or for transacting the public affairs and business of the said county”, and to provide public access for “other public uses and purposes” as seemed appropriate: ibid., s.6. Any damage to the buildings of the complex, or theft of the building materials, would be an indictable offence or an actionable wrong: ibid. s.5. 591 The 1821 Act, s.8. Whilst incarcerated in Newcastle gaol, the Northumberland prisoners were to remain the responsibility of the gaoler and keeper of the old institution, and not to become the responsibility of the constable of the New Moot Hall (or other appointed facility): ibid., s.9. The gaoler was permitted to employ convicted prisoners sentenced to hard labour on works both inside and outside the gaol, including on construction works relating to the new gaol: ibid., s.10. 592 The 1821 Act, s.11. On the issue of warrants by the justices to the several high constables within the county, the overseers of the poor in each division would be required “to levy and collect and pay” over to the county treasurer the amounts assessed on the rateable occupiers (inhabitants), backed up by enforcement powers (distraint on goods): ibid. Sections 12 to 16 set out a framework to enable the justices to deal with circumstances where no overseer of the poor had been appointed (including those “extra-parochial, peculiar, or other places”), or where the apportioned rate appeared “not fair and equal”, and to regulate the handling of moneys by the county treasurer. Where moneys remained after the purposes of the Act had been satisfied, the balance would be transferred and credited to the county in order to “ease and aid” the county rate: ibid., s.16. Once this position had been reached, “the operation of this Act, so far only as regards the rating, assessing, and collecting money for the purposes of this Act, shall end and be no longer in force”: ibid., s.16 (and see later for further discussion on expiry). The costs of obtaining the 1821 Act were to be defrayed from the rates raised under it: ibid., s.37.

186 such circumstances, and to secure good title (through a prescribed form of conveyance);593 and

(h) to conduct legal proceedings under the Act, to regulate proceedings, and to provide an appeal mechanism for any person aggrieved by any rate, assessment or determination made under the Act.594

Status of the 1821 Act 4. The 1821 Act (giving powers to rebuild the then county gaol located at Morpeth in Northumberland) appears to stand alone. There is reference to the county gaol at Morpeth in an earlier local Act of 1809, but that Act did not seek powers to alter or rebuild the Morpeth gaol.595

5. The 1821 Act does not refer to, or expressly incorporate, other gaol-related legislation.

6. Part of the 1821 Act has already ceased to have effect. Section 16 provided that “when all and every the purposes of this Act shall, in the opinion of [the county quarter sessions], have been executed, performed, and fully completed”, and that had been declared in a formal order of sessions, “then and thenceforth the operation of this Act, so far only as regards the rating, assessing, and collecting money for the purposes of this Act, shall end and be no longer in force”. Although it is difficult to be

593 The 1821 Act, ss.17-29. Where compensation exceeded £200, and the vendor was unable to, or failed to, convey and make good title, the compensation moneys would be payable into the Bank of England (to the account of the Accountant General of the High Court of Chancery) to be applied under direction of the court, and the right to take possession (and title) would pass to the county justices: ibid., ss.18, 21 and 26. Similar arrangements pertained where compensation was of a lesser sum. If the parties refused or failed to negotiate on the compensatable value of the property to be acquired, the justices were empowered to empanel a jury to determine the amount: ibid., ss.23-25. Separate provision was made for the acquisition of leasehold interests of one year or less and of mortgages: ibid., ss.27, 28. 594 The 1821 Act, ss.30-36. A limitation period for proceedings of 3 months was imposed: ibid., ss.34, 36. 595 49 Geo.3 c.clxxxv (1809) (“the 1809 Act”) was “An Act to enable His Majesty to grant the Moot-hall, Grand Jury Room, and certain Grounds and Buildings adjoining thereto, in the Castle Garth, within the Scite of the Old Castle of Newcastle-upon-Tyne, to the Justices of the Peace for the County of Northumberland; for building Courts of Justice, and also a Gaol for the said County; and for other Purposes therein mentioned relating thereto”. The “gaol for the said county” was not that at Morpeth; it was a gaol ancillary to the moothall court at Newcastle, used “for the temporary confinement of prisoners” brought on remand from Morpeth and awaiting trial at the Newcastle assizes: preamble to the 1809 Act. This gaol, similarly, was in such a poor state of repair as to be “unwholesome” for its purpose: ibid. It appears to have been rebuilt by 1821 because the1821 Act refers to “the New Moot Hall in Newcastle-upon-Tyne” as a temporary place of confinement: the 1821 Act, ss.8, 9. The 1809 Act also mentioned “a large ruinous building” in Morpeth owned by, but physically separate from, the house of correction there, which should be sold and the proceeds used towards the Newcastle project (section 15). Again, this did not affect the Morpeth county gaol.

187 precise, given the construction of the Act, it appears that sections 11 to 14 inclusive, and section 35, have now expired under the section 16 provision.

7. From the historic material described below, it is clear that the new county gaol at Morpeth was constructed in 1828 and was decommissioned in 1881. The building housed the courtroom from 1829 until 1980 and the county police headquarters from 1886 until 1939.596

8. The only prisons operating today in Northumberland, under the control of HM Prison Service, are HMP Acklington, near Morpeth and Amble (since acquisition in 1972, a category C adult male prison, formerly an RAF station) and HMYOI Castington (principally a young offenders’ remand centre). Neither are located on the site of the former county gaol.

9. The powers contained in the 1821 Act have become spent, and the Act may now be repealed.

3 Geo.4 c.lv (1822) (Newcastle-upon-Tyne Gaol Act 1822) Background and purpose 10. By 1820, the grand jury at the spring assizes had reported on the condition of the common gaol (Newgate gaol) and the house of correction in Newcastle-upon- Tyne. Both town institutions were described as being “out of repair and inconvenient, insufficient, and insecure”.597

11. The mayor, recorder and aldermen of the town (who were also justices) were concerned to erect a replacement gaol and house of correction, with minimum delay, in a more convenient part of the town. However, being unclear as to who had legal responsibility for remedying the situation (at least, so far as the existing gaol was concerned), and anxious “to avoid the delay and expence which would attend prosecuting proceedings at law for obviating those doubts”, the municipal office- holders promoted the 1822 Act to obtain the necessary “aid and authority”.598

596 Tweddle, A. Town Trail for Morpethians, No.1 (1983). This information has been provided to us courtesy of Mr Roger Hawkins of the Morpeth Antiquarian Society. 597 Preamble to 3 Geo.4 c.lv (1822) (“the 1822 Act”), being “An Act for building a new Gaol and a new House of Correction in and for the Town and County of Newcastle-upon-Tyne; and for other Purposes relating thereto”. 598 The 1822 Act, preamble.

188 12. The broad purpose of the 1822 Act was to provide (or impose) the following authorisation, powers and requirements: (a) that the mayor, recorder and aldermen, together with nominees representing four parishes, be appointed commissioners responsible for building the new town gaol and house of correction (and for undertaking the various functions of the Act);599

(b) that the business of the commissioners be transacted through meetings held in accordance with the Act’s rubric (as to public notice, chairing, quorum, minutes and so forth);600

(c) that the commissioners ensure that their clerk keep proper books of account for “all sums of money received, paid, laid out, and expended towards the execution of this Act, or for or on account of the buildings to be erected by virtue of this Act, or in any way relating to the same, and of the several articles, matters, and things for which such sums of money shall have been disbursed, laid out, and paid”;601

(d) that the commissioners appoint a clerk and a treasurer (to be separate individuals) and such other salaried office-holders as they consider appropriate;602

(e) that the commissioners be authorised to purchase the freehold of any land or buildings within the town which “shall appear to them proper or

599 The 1822 Act, s.1. Newcastle-upon-Tyne was, at that time, designated a county as well as a town. The 1822 Act set down a procedure for electing replacement parochial commissioners in the event of death or unwillingness to act or of elevation to municipal office (in section 2), and the minimum qualifications for holding appointment, including the form of oath to act (in section 3). 600 The 1822 Act, ss.4-10. Ordinarily the mayor or recorder were to chair meetings; the chairman would have a casting vote; and the quorum was to be five commissioners. Commissioners who were also justices were not to be precluded from undertaking their duties as justices under the 1822 Act: ibid., s.9. 601 The 1822 Act, s.11. The account books were to be made available for inspection by any commissioner or any “creditor on the rates or assessments”: ibid. 602 The 1822 Act, ss.12, 13. The officers were to include a surveyor (or surveyors) and collectors of rates. Each appointee had, if the commissioners thought it necessary, to provide security for good conduct: ibid., s.12. All appointed officers were, as occasion required, to produce to the commissioners written account of all moneys handled. Power was given to the justices to call officers to account and, in cases of default, to distrain on their goods and to commit to gaol for up to 3 months pending production of accounts, payment or composition: ibid., s.14. Commissioners were entitled to prosecute legal proceedings through their clerk or through one of their own number, and that person was to be indemnified for any costs or damages incurred: ibid., ss.15, 16.

189 convenient” for the purposes of the Act (to be held, on acquisition, by the town justices after conveyance in prescribed form);603

(f) that the commissioners be authorised to build (“with all convenient speed, after the passing of this Act”) on the acquired land, and to fit out, “a new and convenient” common gaol and house of correction with “sufficient out-courts and outlets thereto respectively” for “the confinement of criminals, debtors, and others”, together with infirmaries, residential accommodation for the gaolers and keepers, and ancillary buildings.604 The project was to be supplemented by the construction of “proper and sufficient roads, avenues, and approaches” for accessing the gaol.605

(g) that the commissioners be authorised to demolish the old common gaol and house of correction, and to re-use the salvaged building materials (without charge) in the construction of the new gaol complex, which complex - when complete - would pass to the Newcastle justices;606

603 The 1822 Act, ss.17, 31. The Act also provided a mechanism for facilitating purchases where a landowner had legal incapacity to convey, or where an interest-holder should “neglect or refuse to treat, or shall refuse to accept such price or recompence as shall be offered by the said commissioners … or otherwise not agree for the sale” or should be absent. In these circumstances a special jury would be empanelled to determine, on evidence, the appropriate valuation, and the moneys (together, in certain instances, with reasonable legal expenses) would then be paid by the commissioners to the owner or, where it exceeded £20, into the Bank of England (to the order of the Accountant General of the High Court of Chancery): ibid., ss.18-23, 27. The Newcastle justices (through the commissioners) were then entitled to unencumbered freehold title and to possession: ibid., s.28. Provision was similarly made for compensation payment where a vendor was unable to make good title or was untraceable or where the purchase moneys were less than £20: ibid., ss.24, 25. There was a rebuttable presumption that the person in possession of the land at the time of purchase was entitled to the compensation moneys: ibid., s.26. Special arrangements were also made for terminating leases, tenancies, occupation rights and mortgagees’ interests: ibid., ss.29, 30. 604 The 1822 Act, s.32. The aim was to create a complex which delivered facilities for “the reception, security, and health of the prisoners and persons confined therein respectively”. The commissioners were entitled to enter into contracts for the various works and to employ “such artificers, workmen, labourers, and others” as were necessary for the job: ibid., and to employ prisoners sentenced to hard labour: ibid., s.39. Once the gaol was complete, it was to be designated the common gaol for the town and county of Newcastle (for confining felons, debtors and others committed there under due process); and the new house of correction was deemed to be the common house of correction for the same locality (both under the jurisdiction of the town justices): ibid., s.37. 605 Ibid. 606 The 1822 Act, ss.33, 36. Ownership of the old gaol was vested in the town corporation (the mayor and burgesses), and ownership of such building materials as were not used was to remain with the corporation. All materials acquired for, or used in, the construction of the new gaol and house of correction, however, were to be the property of the commissioners whilst construction was in hand. Theft of, damage to, or interference with the materials or the new buildings was made an offence actionable by the commissioners: ibid., ss.34, 35.

190 (h) that responsibility for the upkeep, maintenance and insurance of the new gaol and house of correction, once operational, pass to the town justices acting in quarter sessions, with the costs being borne from the town’s “general rates, stock, or funds”;607

(i) that the commissioners be authorised to raise funding for the project by local taxation (to an overall maximum of £50,000), first by assessing annually the total amount required, and then by levying a rate (based on property annual value, but not exceeding 1s.6d. in the £) on all non-ecclesiastic hereditaments within the town and county of Newcastle, apportioned across “each parish, parochial chapelry, ward, and precinct” for the purposes of collection;608

(j) that the commissioners be authorised also to raise funding, “for the more speedy and effectual carrying into execution the purposes” of the Act, by borrowing moneys secured by mortgage on the rates;609 and

(k) that provision be made for appeal to quarter sessions by persons aggrieved by orders or actions under the 1822 Act (and that ancillary

607 The 1822 Act, s.37. Because construction of the new gaol relied upon demolition of the old gaol, the justices were empowered, as an interim measure, to hold prisoners (felons, debtors and others) in the New Moot Hall in Newcastle or other temporary approved place, pending completion. Whilst in this temporary accommodation the prisoners remained the responsibility of the gaoler or keeper of the former institutions: ibid., s.38. 608 The 1822 Act, ss.40, 41. Where an individual considered him or herself “aggrieved by any such rate or assessment”, they could make application for review to the commissioners for alteration to the rated amount or “such other order for relief or redress” as appeared appropriate: ibid., s.40. The mechanisms for rate collection and enforcement in the event of “defalcation”, locally and wider afield, and including apportionment for tenanted houses and tenements, were set out in sections 42 to 45 of the Act. The moneys raised by rate were to be applied by the commissioners in the following order: for defraying the cost of obtaining the 1822 Act, paying interest on the borrowed sums, paying for the acquired land, paying for the construction and furnishing costs on the new gaol and house of correction and, finally, using any surplus to discharge the principal sums borrowed: ibid., s.50. As with the 1821 Act (above), the 1822 Act similarly provided that “all and every the trusts, powers, offices, and authorities herein- before by this Act given to or vested in the said commissioners shall absolutely cease and determine” as soon as the acquisition of land, construction and fitting-out of the gaol complex and repayment of all borrowed moneys “shall be fully completed and fulfilled”: ibid., s.52, and see discussion below under ‘Status’. 609 The 1822 Act, s.46. The sums were to be borrowed “at legal or lower interest”: ibid. The form of mortgage was prescribed by section 47, and the mortgagee was able to assign his or her interest (subject to registration) on an unrestricted basis.The treasurer appointed by the commissioners was required, half-yearly, to ensure that sufficient moneys had been held back from the rating fund to discharge the half-yearly interest payments (until the principal sums had been repaid in full): ibid., s.48. Sections 49 and 51 set down the mechanism for repayment of the various principal sums borrowed.

191 provision be made for the conduct of legal proceedings in general, including limitation times).610

Status of the 1822 Act 13. The 1822 Act was designed to authorise Newcastle’s senior townsmen to rebuild the common gaol and house of correction. As a piece of legislation it appears to stand alone. Although there is reference to using another gaol as a temporary measure (the New Moot Hall in Newcastle), the 1822 Act does not refer explicitly to, or rely on, other legislative powers.

14. The 1822 Act appears to have expired. Expiry is governed by section 52 (see above) and took effect once the Act’s purposes had been fulfilled, that is to say, when the gaol was built and operational and all the debts had been paid off. All the powers within the Act were said then to have ceased and determined. It is probable, given the passage of time, that the debts relating to the gaol were cleared, but evidence to confirm the position is not readily available.

15. The original gaol seems to have been demolished by 1828. The new gaol (and house of correction) was constructed in 1823-1828, and operated until 1925 when it was decommissioned and demolished.

16. No prison, under the control of HM Prison Service, exists today within the city of Newcastle.

17. The powers in the 1822 Act have become spent, and the Act may now be repealed.

Archive-based history 18. At Morpeth in Northumberland, the old gaol was housed in a fortified tower sited in the centre of the town, on the south side of Bridge Street. It may have been built as early as 1603, and appears to have been used in part (by 1659) as a town gaol and house of correction. That use was continuing in 1802 and did not cease until (or just before) the replacement county gaol was built and operational, around

610 The 1822 Act, ss.56, 57 (as to appeals, with 6 months’ time limit), s.58 (applying 3 months’ limitation) and ss.53-55 (witness competence, want of form, and recovery of penalties).

192 1828.611 The building remained in existence and was occupied by the Morpeth branch of the Department for Social Security612 in the 1980s and 1990s.

19. The new county gaol was constructed as an octagonal stone building in a suburb of Morpeth (south of the bridge, situated on a slightly elevated site to the east of the road, on the south bank of the River Wansbeck). It was completed in 1828 (approximately three years before the completion of the new court house, which was an integral part of the same building, in 1831613), at a cost of almost £80,000. In 1868 the building was still a gaol, and contained a chapel and the sessions house for the conduct of county business at the Easter sessions.614 The gaol appears to have closed in 1881615, part of the building being demolished and part (as a restored grade II* listed building) being converted in recent years into serviced apartments. Morpeth police station is still housed in the old gaoler’s house, originally sited in the centre of the gaol complex. The courthouse closed in 1980 and transferred to another site in Morpeth.

20. In Newcastle, the Newgate gaol was one of the town’s better prisons (together with the house of correction at Manors) when inspected by the penal reformer John Howard in 1777.616 By 1828 it had, however, been replaced by a new gaol sited at Carliol Croft to the east of the city, adjacent to the city wall. This was a significant gaol complex housing both the bridewell (probably the house of correction) and the debtors’ prison, serving Newcastle and Gateshead. Debtors were relocated to Carliol Croft from the keep at Castle Garth.617

21. The Carliol Croft gaol operated until 1925 when it was decommissioned and demolished.618 A new telephone exchange was built on the site in 1931. Today, the Tyne Bridge, which, in 1928 was faced with stone from the demolished gaol, carries

611 The tower was known variously as “Pele Tower”, “Dacres Tower”, and “Old Gaol”. Historic references are to be found at http://homepage.mac.com/philipdavis/English%20sites/2735.html 612 http://homepage.mac.com/philipdavis/English%20sites/2735.html; and recollections of Mr Roger Hawkins, member of Morpeth Antiquarian Society. 613 Hodgson, J. History of Morpeth (1832). The courthouse “was first used for a county meeting, when the measure of reform in parliament was brought forward in it in February, 1831”. 614 See Old Towns: Morpeth in 1851 at http://www.oldtowns.co.uk/Northumberland/morpeth.htm, and National Gazeteer (1868) – Morpeth at http://www.genuki.bpears.org.uk/NBL/Morpeth/Gaz1868.html 615 Tweddle, A. Town Trail for Morpethians No.1 (1983). The outer walls were demolished in 1891. 616 Better when contrasted to the conditions at the castle keep. See The Castle Keep: Newcastle-upon- Tyne: Timeline: Industrial Revolution to Modern Day at http://museums.ncl.ac.uk/keep/keeptimeline/keep_timeline_industrial.htm 617 See http://museums.ncl.ac.uk/keep/keeptimeline/keep_timeline_industrial4.htm. Building of Carliol Croft spanned 1823-28.

193 the A167(M) over the corner of Carliol Square, where the gaol was previously sited.619

Extent 22. The 1821 Act (relating to Morpeth) applies locally only within the county of Northumberland in England.

23. The 1822 Act (relating to Newcastle) applies locally only within the county of Northumberland in England.

Consultation 24. The Home Office, HM Prison Service, Northumberland County Council, Newcastle City Council and Northumbria Police Authority have been consulted about this repeal proposal.

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618 “Penal Institutions and Reform School and Asylum: Borough Gaol and House of Correction, Newcastle upon Tyne” http://www.thenortheast.com/archives/UserGuides/14_LawOrder.html 619 The Ordinance Survey Landranger grid reference is NZ252643.

194 COUNTY GAOLS GROUP 14 - PEMBROKESHIRE ______Reference Extent of repeal or revocation ______19 Geo.3 c.46 (1779) The whole Act. (Pembroke Gaol Act) ______

19 Geo.3 c.46 (1779) (Pembroke Gaol Act 1779) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.620 That power, however, fell short of outright control. In the latter half of the 18th century the power also of gaol management started to be ceded.621 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Pembrokeshire, the county justices found, by 1779, that the county’s ancient common gaol (sited in Haverfordwest) was “greatly too small, inconvenient, and unsafe” and was located in “a low, unhealthy, and confined situation”.622 The only remedy, as they saw it, was to build a replacement gaol and then to decommission the existing gaol. This necessitated acquiring land for the replacement and securing the necessary statutory powers to undertake the project (including the power of compulsory purchase in the event that they could not negotiate a purchase).623

620 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 621 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 622 Preamble to 19 Geo.3 c.46 (1779) (“the 1779 Act”), being “An Act for building a new Gaol and House of Correction for the County of Pembroke”. 623 The 1779 Act, preamble. The justices deemed it sensible at the same time to secure power to build a house of correction, both facilities to be located within Haverfordwest castle if they could achieve its purchase (failing which they would identify “some other convenient and healthy situation” in the town).

195 3. Once the existing gaol had been decommissioned, the intention was that the building would pass from the county of Pembroke to the Haverfordwest corporation (which was both a town and a county in its own right).624

4. The 1779 Act, in order to fulfil its purpose of promoting the safety and health of prisoners and of advancing “publick utility”, authorised (in broad terms) the following steps: (a) the purchase by the county justices of Haverfordwest castle (or an alternative site within Pembrokeshire), to be held by named trustees and their heirs or replacements;625

(b) providing facility for the sale of land by persons having legal incapacity;626

(c) providing a mechanism for valuing and transferring land where owners failed either to agree a sale price or to convey their holding;627

(d) preserving the right of the Duke of Leeds to continue to receive any rents or payments which may be due to him from the castle and lordship of Haverfordwest (or from any other lands which the justices might acquire for the purposes of the Act);628

(e) empowering the justices to build on land acquired “a convenient gaol and house of correction, for the confinement of criminals, debtors, and others”, together with a gaoler’s residence and ancillary accommodation;629

624 The 1779 Act, s.17. (The printed version of the 1779 Act carries only side headings and not section numbers.The section numbers used in this note have simply been assigned informally to aid navigation through the Act’s text). 625 The 1779 Act, ss.1, 2 and 13. 626 The 1779 Act, s.3. 627 The 1779 Act, ss.4-9 (as to valuation) and ss.10, 11 (as to vesting of land). 628 The 1779 Act, s.12. 629 The 1779 Act, s.14. Once built and operational, the gaol and house of correction were to become designated facilities for the “county of Pembroke” (separated from the town and county of Haverfordwest), and would be maintained “by such ways and means as other gaols and houses of correction in this Kingdom are by law to be maintained, supported, and repaired”: ibid, ss.14, 15. The county sheriff was to be responsible for safe custody of the prisoners, and was to retain the right to exercise all previous “privileges and customs” (such as the right of free passage) relating to the town of Haverfordwest: ibid., s.16.

196 (f) authorising the raising by the justices of moneys to undertake the acquisition and building project, first by assessing the costs (to a maximum of £2,000) and, then, by levying a local rate upon the towns and parishes within the county (to be collected using the statutory procedure for the county rates);630

(g) requiring the moneys raised to be accounted for and used, first, to defray the costs of promoting the 1779 Act; second, to defray the costs of building; and, finally, to transfer any surplus to the “publick stock of the said county” for county purposes;631 and

(h) providing a right of appeal to quarter sessions for persons aggrieved by actions taken under the Act (and a limitation period for legal proceedings generally).632

Status of the 1779 Act 5. The 1779 Act was framed so that it stood alone (except for importing national provisions relating to the assessment and collection of local rates).

6. As indicated below, it appears that between 1779 and 1780 a new gaol and house of correction was built inside Haverfordwest castle, and remained operational until around 1822. At that point, the premises were significantly rebuilt (still within the castle’s boundary) to accommodate both town and county prisoners. The gaol did not close until 1878.

7. The whole of the 1779 Act has become spent, and it may now be repealed.

Archive-based history 8. The town of Haverfordwest became the county town of Pembrokeshire during the 16th century. The town’s castle, already in a state of decay, became the site for the county gaol.

9. In 1774 the prison reformer John Howard visited Haverfordwest, and condemned the state of the county gaol situated in the castle’s cookhouse. Between

630 The 1779 Act, s.18. The rate was to be collected by the county treasurer and paid to the county justices or their nominee. Sections 19 and 20 of the Act set out the mechanics for assessment. 631 The 1779 Act, ss.21-23.

197 1779 and 1780 a new gaol was built against the south wall of the inner ward of the castle (at a cost of around £1,200). This gaol appears to be the subject of the 1779 Act.633

10. In 1822 (following a recommendation of the local quarter sessions) a replacement county gaol was constructed as a three-storey building sited in the castle’s outer ward. The gaol was later rebuilt in 1866, and finally decommissioned in 1878.634 The building then housed the Pembrokeshire constabulary. Today, it survives as the home of the county records office and the town museum.

11. It appears that the county gaol and house of correction remained co-located within the castle walls635, and that the town gaol - which was situated in the upper part of the town at St. Thomas’ Green - was converted into a joint county and town lunatic asylum.

Extent 12. The 1779 Act applied locally only within the county of Pembrokeshire in Wales.

Consultation 13. The Home Office, HM Prison Service, the National Assembly for Wales, the Wales Office, and Pembrokeshire County Council have been consulted about this repeal proposal.

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632 The 1779 Act, ss.24, 25. 633 See www.gtj.org.uk/en/item1/25816, the Welsh cultural history website. 634 See “Haverfordwest” at www.acadat.com/HLC/milford/area/309.htm. The quarter sessions minute book for the period records the last payment of expenses for the day-to-day running of the gaol being made in April 1878 (information provided courtesy of the County Archivist for Pembrokeshire). 635 See the 12th Report of Inspectors of Prisons – Southern and Western District Pembrokeshire (1847/48), which refers to the Haverfordwest County Gaol and House of Correction, at www.institutions.org.uk/prisons/Wales/haverfordwest_gaol.htm.

198 COUNTY GAOLS GROUP 15 - SOMERSET ______Reference Extent of repeal or revocation ______56 Geo.3 c.lix (1816) The whole Act. (Bristol Gaol Act) ______

56 Geo.3 c.lix (1816) (Bristol Gaol Act 1816) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.636 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.637 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Bristol (which had the status of both city and county) the city corporation had been concerned as to the state of the “common gaol called Newgate” located in St. Peter’s parish within the city since before 1792. In that year the corporation had secured an Act which would have permitted the rebuilding of both the Newgate gaol and the Bridewell house of correction (the latter located in the parish of St. John Baptist). These institutions would have been relocated elsewhere within the city (on a new combined site) so that a new common gaol complex could provide larger, properly constructed and more convenient accommodation “for the reception, confinement, separation, and employment of prisoners”.638

636 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 637 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 638 Preamble to 32 Geo.3 c.82 (1792) (“the 1792 Act”), being “An Act for building a New Gaol, a Penitentiary House, and House of Correction, within the City of Bristol, and for regulating, maintaining, and supporting the same; and for disposing of the present Common Gaol of the said City of Bristol, and

199 3. Promotion of the 1792 Act had been a highly contentious issue in the city. The corporation in 1790, and again in 1791, had initiated (and then withdrawn, in the face of substantial local opposition) earlier Bills designed to empower the corporation to sell the existing Newgate gaol - which it owned, but which had been paid for by the city’s inhabitants - and to rebuild elsewhere on lands to be acquired. The corporation sought, however, to transfer responsibility for maintaining the new gaol to the county justices, who would have to raise a special rate for the purpose. In 1792 the corporation successfully secured the Act in very similar form, notwithstanding a 4,000-signature petition of objection.639 Nevertheless, given the level and duration of public disquiet, the corporation allowed the powers in the 1792 Act to expire by effluxion of time.640

4. Nearly a quarter-century later the problem of the gaol’s condition still existed and needed addressing. The preamble to an Act obtained in 1816 recited simply the fact that the 1792 “Act has not been carried into execution” and the city corporation’s belief that “it is expedient that the same should be repealed”.641

5. The principal purpose (put in broad terms here) of the 1816 Act was as follows: (a) to constitute a board of commissioners who would have responsibility for building the new common gaol for the city and delivering the Act’s aims;642

County of the same City, and for other Purposes.” Provision for “other purposes” included facilitating land acquisition, and the raising of moneys for the project. 639 Under the 1792 Act, although the city corporation would pay for acquisition of an alternative site, and would reinvest the proceeds of sale from the old gaol in the new project, the corporation’s liability for maintenance and future upkeep was to be limited to an annual payment of £150: the 1792 Act, ss.33, 72. The local inhabitants took exception to this arrangement on the ground that the townspeople had already paid out once for the original gaol, and were now to be rated again. For more detail on the sequence of events, see Latimer The Annals of Bristol in the Eighteenth Century (reprinted in George’s Bristol, 1970), pp. 488, 489. 640 The power of compulsory land acquisition in the 1792 Act, which underpinned the whole project, was time-limited to seven years from commencement of the Act: the 1792 Act, s.6. 641 Preamble to 56 Geo.3 c.lix (1816) (“the 1816 Act”), being “An Act for building a new Gaol in the City of Bristol, and for other Purposes”. The 1792 Act was repealed in whole by the 1816 Act, s.1. 642 The 1816 Act, s.2. The commissioners were to include the mayor, city aldermen and a limited number of councillor and resident representatives (the last-mentioned being named in the Act), and were only qualified to act if they owned an interest in land within the city of Bristol, had no conflict of interest, and were not victuallers or sellers of alcohol: ibid., ss.2, 4. Provision was made for replacing commissioners on death or indisposition (or on failure to attend meetings “without a reasonable cause”): ibid., s.3. Each commissioner had to swear an oath attesting to his qualification for office (and acting unqualified gave rise to a financial penalty): ibid., s.4. Commissioners who were also justices for the city were not precluded from acting in their magisterial capacity “in the execution of” the 1816 Act: ibid., s.10.

200 (b) to set down a rubric for the holding and conducting of commissioners’ meetings;643

(c) to authorise the commissioners to appoint a treasurer, clerk, collector and surveyor (and such other officers as they deemed necessary), and to hold those appointees to account for the undertaking of their duties;644

(d) to authorise the commissioners to initiate or defend legal proceedings through their clerk;645

(e) to authorise the commissioners to acquire parcels of land (both specific and in general, to a maximum of five acres) located within the city, the land to be held by the city corporation or trustees nominated by the corporation;646

(f) to authorise the city corporation to sell land which the commissioners had acquired but which later became surplus to requirements (subject,

643 The 1816 Act, ss.5-11. The Act provided for the fixing of meeting dates (including adjournments), quorum, giving of public notice, appointment of chairman (with casting vote), preparation of signed minutes containing resolutions and orders, the maintenance of books of accounts, and availability of minute and accounts books for public inspection (but only by “persons rated and assessed for the purposes” of the 1816 Act): ibid., ss.5-8, 11. Commissioners were obliged to bear their own expenses in attending meetings: ibid., s.9. 644 The 1816 Act, ss.12, 13. The commissioners were empowered to “take such security” from the appointees (for good behaviour in office) as they thought fit, and to require them to make “a true and perfect account in writing under their respective hands of all monies which shall have been by them respectively had, collected, and received, and how and to whom and for what purposes the same and every part thereof hath been disposed of”: ibid., s.13. Failure, deliberately or negligently, to account for moneys held could give rise to judicial distraint on the officer’s goods or even committal to the common gaol or house of correction (without bail, for a maximum of 3 months) pending making a composition with his creditors. 645 The 1816 Act, s.14. The clerk was to be indemnified against any costs awarded, or damages incurred, in such proceedings: ibid., s.15. 646 The 1816 Act, s.16. The specific parcel of land (4.25 acres) was specified in sch 1 to the 1816 Act. Sections 17 to 31 of the Act laid down the rubric for land acquisition by providing the following: a power to those persons or bodies with legal incapacity to sell and convey lands they held; a mechanism for assessing value of lands to be compulsorily acquired by a special jury (drawn from the county of Somerset) where the owner failed or refused to negotiate; a requirement that the clerk of the peace or other officer holding the records for the county of Somerset quarter sessions retain custody of any findings or orders so made; a limitation of time (three years from the Act’s passing) for purchase of the scheduled land or valuation of other lands subject to compulsory purchase (ibid., s.22); a mechanism for paying and applying compensation moneys where the land owner had legal incapacity or failed to make good title or could not be traced (including making payment of larger sums into the Bank of England for reinvestment on the order of the High Court of Chancery); a rebuttable presumption that the person in possession of particular lands be deemed the lawful owner; a deeming provision that, on payment of the purchase price for land, title would pass to the city corporation with power to the commissioners lawfully to enter; and a requirement that mortgagees, tenants and occupiers give up possession subject to being given stipulated notice and appropriate compensation.

201 in the case of the scheduled land, to the commissioners giving first refusal on purchase to the original land owner);647

(g) to require the commissioners to build on the acquired lands, “with all convenient speed”, a new common gaol (designated the common gaol for the city and county of Bristol) “for the confinement of criminals, debtors, and others”, which gaol was to be equipped with infirmaries, a room for the gaol visitors, residential accommodation for the gaoler and other officers, and ancillary buildings, and to be fitted-out so as to provide for the “reception, security, and health” of prisoners.648 The new gaol was to be laid out so that an undeveloped cordon, 15 feet wide, should surround the complex “so as at all times to preserve a free circulation of air in or about the said gaol”;649

(h) after relocating the prisoners, to sell the old Newgate gaol (then owned by the city corporation), and to apply the moneys realised from the sale towards the new building project;650

(i) to authorise the commissioners to raise moneys for the building project by assessing and issuing a precept on the city and county rate (which would then be levied by the local justices - through the general

647 The 1816 Act, ss.32, 33. The moneys arising on sale were to be reapplied in the “erecting, furnishing, and completing the said gaol, and other conveniences by this act authorized to be built”, and the commissioners’ treasurer’s receipt for the moneys was to act as sufficient discharge for the purchaser: ibid., s.32. Where an offer to repurchase had to be made to the original landowner, but that person refused the offer or failed to treat, evidence of the offer (and its conformity to statute) could be provided by a certifying affidavit: ibid., s.33. 648 The 1816 Act, ss.34, 37. To fulfil this purpose, the commissioners were authorised to enter into building and other contracts and “to employ such artificers, workmen, labourers, and others, and to do all such things as shall in their discretion appear requisite in the premises”: ibid., s.34. Once built and operational, the gaol was to be maintained by the city corporation, and prisoners were to be in the charge of the city sheriffs: ibid., ss.37, 39. All building materials for the project were to be vested in the commissioners, and it was made an offence for any person to interfere with such materials or to damage the gaol buildings: ibid., ss.35, 36. Likewise, all gaol furnishings and utensils were vested in the city corporation, and it was an offence knowingly to “buy, secrete, or receive into pawn” any such items: ibid., ss.60, 61. 649 The 1816 Act, s.53. If the minimum width could not be achieved because of the location of an existing public street or highway, the gaol’s proposed boundary wall was to be reconfigured accordingly. 650 The 1816 Act, s.38. The commissioners were authorised to sell the gaol as a whole or in lots, and to dispose of the gaol furniture (or to use the whole or part of it in the new gaol). The conveyance of land title would be undertaken by the city corporation (as landowner, under seal), and the financial proceeds of sale were to be paid over to the commissioners in order to help defray the expenses of building a replacement gaol: ibid.

202 quarter sessions - on all non-ecclesiastical properties within the city), to a maximum sum of £60,000;651

(j) to authorise the raising of moneys by borrowing on mortgage secured on the county rates, at “legal or lower interest”, to a maximum sum of £20,000.652 The moneys raised on the rates and by mortgage were to be used in the following order:

(i) paying all costs associated with obtaining the 1816 Act; (ii) paying interest on the borrowed sums; (iii) paying for lands acquired under the Act; (iv) discharging the cost of building and fitting-out the gaol complex; and (v) effecting the “gradual discharge” of the capital sums borrowed;653

(k) to require the city sheriffs to appoint gaolers, keepers, a governor and such other necessary officers, subject to the appointees providing adequate security for the proper performance of their duties in office;654

651 The 1816 Act, ss.40, 41. The supplemental rate was to be levied on “each parish and precinct” within the city in the same proportions as applied to the levying of the poor rate, and it was to be demanded and collected by the rate collectors in the same manner: ibid., s.40. It was not to extend to any district which had formerly been located within the counties of Somerset or Gloucester, but which had been amalgamated with the county of Bristol under legislation relating to improvement of the port of Bristol (43 Geo.3 c.cxl (1803) (Bristol Harbour Act 1803, now repealed with savings)): ibid., s.42. The commissioners were only entitled to levy an annual rate for the purposes of the Act to a maximum of 2s.in the £ based on each property’s rateable value: ibid., s.41. The 1816 Act set out the mechanisms for recovery of rates (in default of payment, where premises were tenanted or let in apartments, and where occupiers left the parish part year through) in sections 43 to 46. 652 The 1816 Act, s.47. Mortgages were to be in writing, in prescribed form, and were to be copied (together with transfers and assignments) into a record book maintained by the clerk to the commissioners: ibid., s.47 and sch 2. The treasurer was required to hold back, out of the rates collected, sufficient sums to pay the annual interest due on the mortgages based on the closed accounts: ibid., s.48. Once the construction of the new gaol was completed, the commissioners were obliged to meet to draw lots to establish the sequence of redemption of the various mortgages, and to ensure that not less than £5,000 was paid off in each succeeding year: ibid., ss.49, 51. 653 The 1816 Act, s.50. These requirements were not to detract from any existing liability of the city corporation to pay duties or the like. On completion of the gaol project, including repayment of all borrowed moneys, the 1816 Act provided that “then and from thenceforth all and every the trusts, powers, offices, and authorities … [by the Act] vested in the said commissioners shall absolutely cease and determine”, and the new gaol would vest in the city corporation, on the same terms as the old gaol: ibid., s.52. 654 The 1816 Act, s.54. Negligence or misbehaviour in office could give rise to forfeiture of the security or imposition of a fine (of up to £10 per offence) enforceable by distraint on goods.

203 (l) to empower the city justices (in general or quarter sessions) to make “rules, orders, and regulations” for the proper governance of the gaol;655

(m) to require the appointment by the city corporation of a minimum of ten visitors to the new gaol, who would be charged with inspecting the gaol “as often as occasion shall require” for the purpose of ensuring that the buildings were in a fit state, that the treatment and condition of the prisoners (including their earnings from work) and the conduct of gaol staff were in order, and that the expense of running the gaol was appropriate;656 and

(n) to provide for the conduct of legal proceedings.657

Status of the 1816 Act 6. The purpose of the 1816 Act was twofold: to repeal the earlier Act of 1792 (which authorised replacing the old Bristol city gaol, but which was never activated), and to replace the powers in that 1792 Act with a new, and broader, set of powers to purchase land, to build the new gaol and to regulate its functioning.

655 The 1816 Act, s.55. The rules (which were to be displayed conspicuously in the new gaol) were not to be “contrary or repugnant to the laws of that part of Great Britain and Ireland called England”, and were to be submitted for confirmation and certification to “the justices of oyer and terminer and general gaol delivery for the said city and county”: ibid. They were intended to cover such aspects of gaol life as: segregation of prisoners (prisoners under sentence of transportation had to be held separately: ibid., s.59), diet, clothing, employment, ensuring “cleanliness, temperance, and a decent and orderly behaviour, as for securing a just and humane treatment of them by the gaoler or gaolers, governors and keepers of the said new gaol”, regulating visiting hours and controlling visitors who may be deemed “improper” or who might provide to prisoners supplies or alcohol in breach of the gaol rules. Infringements could give rise to the imposition of “reasonable penalties and forfeitures”: ibid., s.55. No gaoler was permitted to allow “tippling or gaming”, or the sale of any “wine, beer, ale, or other liquors”, in the gaol (or to be involved in any liquor business): ibid., s.62. 656 The 1816 Act, s.56. The visitors were to be drawn from common council-members who were also justices (minimum of five) and from local inhabitants (minimum of five, to include an Anglican clergyman and a medical doctor). Any abuses detected by the visitors were to be reported on to general or quarter sessions for appropriate action although, in cases of urgency, the justices visitors were entitled to “proceed to regulate and redress the same”: ibid. The powers vested in the visitors did not derogate from the right of any justice or city councilman to enter a gaol of his own volition and to report on any abuses found, which then had to be enquired into and rectified “as soon as the nature of the case will allow”: ibid. Gaolers were required to make regular returns to the court of prisoners in their custody, specifying their offence and their “age, bodily estate, and behaviour”. Each return had to be certified and (if necessary) annotated by a visitor before onward transmission to the court: ibid., ss.57, 58. 657 The 1816 Act, ss.63-72. Amongst other matters, the Act provided for the compelling of witness attendance, service of notices and summonses, appeals against orders and convictions under the Act (to general quarter sessions for the city: s.69), and time limits for commencing proceedings (generally four months from the cause of action arising: ss.69, 72).

204 7. The 1792 Act was repealed in whole by section 1 of the 1816 Act. The 1816 Act also contained two provisions limiting aspects of its own operation: (a) three years for purchase of the specified parcel of land or for valuation of other land to be acquired;658 and

(b) on completion of the gaol building operation and repayment of all the loans, automatic expiry of the commissioners’ various powers.659

8. The old Newgate city gaol was operating in 1787 when visited by the prison reformer John Howard. It was replaced in 1820 by a new gaol built under the auspices of the 1816 Act at New Cut. This gaol functioned until its closure in 1883, when it was superseded by the prison at Horfield.

9. Accordingly, the 1816 Act is now spent, and may be repealed in whole. The 1792 Act will remain repealed.660

Archive-based history 10. The original Newgate city gaol was located in Little Peter Street in Bristol (sited between Narrow Wine Street and Castle Mill Street), close to the castle. Built in 1148, it was rebuilt in 1691.661 A second (county) gaol was located near Lawford’s Gate, in one of the city’s out-parishes (ie. then a parish within the county of Gloucester).662 This gaol was built shortly before 1793 and was demolished in 1907.663

11. The replacement common gaol for the city was erected to the west of the city, at Bedminster, close to the new cut for the river Avon. It opened around 1820, and was functioning in 1847.664 It had been burned down by rioters in 1831 but rebuilt, and it remained in use until its closure in 1883.665 In November 1895 the site was

658 The 1816 Act, s.22. 659 The 1816 Act, s.52. 660 The Interpretation Act 1978, s.15 provides that the repeal of an Act will not revive any Act previously repealed, where words are not specifically incorporated for that purpose. 661 See http://members.lycos.co.uk/brisray/bristol/bhist6.htm 662 This county gaol appears to have been built to serve the western division of the county of Gloucester. 663 See publication Bristol as it is and As it was. 664 See www.institutions.org.uk/prisons/England/GLS/bristol_city_gaol.htm for extract from the 12th Report of Inspectors of Prisons - Southern and Western District relating to Bristol City Gaol and House of Correction (PP 1847/8 vol. XXXV) 665 See http://member.lycos.co.uk/brisray/bristol/bhist6.htm

205 sold by the city corporation to the Great Western Railway Company.666 The prison has long been demolished, although the gateway still remains.

12. The present prison in Bristol (today under the control of HM Prison Service) was built at Horfield and opened in 1883. It was extended during the 1960s. Located at Cambridge Road, it houses male prisoners and young offenders, both convicted and on remand.667

Extent 13. The 1816 Act applies, and the 1792 Act before it, locally only within the city of Bristol, in England.

Consultation 14. The Home Office, HM Prison Service and Bristol City Council have been consulted about this repeal proposal.

(32-195-452 ) LAW/005/002/06 01 February 2008

666 City Rental ref. 09082/3 folio 1384; estates title deed 341, accession no. 01728 [Information provided courtesy of Margaret McGregor, Archivist with the Bristol City Record Office] 667 See www.hmprisonservice.gov.uk/prisoninformation/locateaprison/prison.asp?id=282

206 COUNTY GAOLS GROUP 16 - STAFFORDSHIRE ______Reference Extent of repeal or revocation ______27 Geo.3 c.60 (1787) The whole Act. (Stafford Gaol Act) ______

27 Geo.3 c.60 (1787) (Stafford Gaol Act 1787) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.668 That power, however, fell short of outright control. In the latter half of the 18th century the power also of gaol management started to be ceded.669 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Staffordshire, in 1787, the county justices formed the view that the then county gaol and house of correction were “very ill constructed, and neither sufficiently spacious, nor in other respects well adapted for the reception, separation, and confinement of prisoners”, and that the remedy was to build a new gaol, a “proper prison” for debtors and a house of correction for county use.670

3. To this end the justices obtained the 1787 Act, which authorised the construction project (and various allied matters). The Act provided specifically that the new county gaol, debtors’ prison and house of correction (once built) should be

668 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 669 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 670 Preamble to 27 Geo.3 c.60 (1787) (“the 1787 Act”), being “An Act for building a new Gaol, and providing a proper Prison for Debtors, and House of Correction for the several Boroughs, Towns Corporate, Liberties, Franchises, and all other Places, within the County of Stafford; and for regulating the same respectively”.

207 subject to the then existing national laws relating to the conduct of such institutions671, and (so far as applicable) to an Act of 1785 relating to the building of new gaol facilities for the county of Gloucestershire.672

4. At the outset, the 1787 Act deemed each of the county justices a commissioner entrusted with executing the powers of the Act.673 The purposes of the statute were (in broad terms) to provide, initially, for the following: (a) that the nominated commissioners should meet regularly in order to “put this Act in execution”;674

(b) that the commissioners should appoint a treasurer, a clerk, a surveyor or surveyors, and such other officers as may be necessary (such appointments to be subject to the taking of “sufficient security” from the appointees “for the faithful discharge of their respective offices”);675

(c) that the commissioners, “with all convenient speed after the passing of this Act”, should identify a suitable site or sites “within or near to the town of Stafford” for the purpose of building a new gaol, a “prison for debtors if they shall think proper”, and a county house of correction (or, in the case of the latter two institutions, find ways to convert the present gaol to accommodate one of them);676

671 Apart from an Act of 1774 (for which, see below) these “laws and statutes of this realm” were not particularised in the 1787 Act, but probably included (amongst others) two Acts passed in 1784 relating to the building, enlarging and repair of county gaols, and the inspection and alteration of houses of correction (24 Geo.3 Sess.2 c.54 and c.55 respectively). 672 The 1787 Act, s.46. The Act of 1785 was 25 Geo.3 c.10, being “An Act for building a new Gaol, a Penitentiary House, and certain new Houses of Correction, for the County of Gloucester, and for regulating the same”. This 1785 Act is still in force, and is the subject of a separate repeal note in this series relating to Gloucestershire gaols. 673 The 1787 Act, s.1. The gaol commissioners were to be “all persons who now are, or who shall, for the time being, be named in the commission of the peace for the county of Stafford”: ibid., s.1. Commissioners-designate were disqualified from office, however, if they had - or obtained - a conflicting pecuniary interest (either through holding any remunerated office or appointment under the Act, or from having any direct or indirect contractual interest): ibid., s.2. 674 The 1787 Act, s.3. Meetings were to be publicly advertised in the “Birmingham Paper”, or other local newspaper with a county-wide circulation, and were to be presided over by an elected chairman (who would have an additional casting vote): ibid., s.4. 675 The 1787 Act, s.5. The commissioners were also empowered to remove and to replace appointees, and to pay officers “salaries or other allowances” by way of reasonable remuneration. 676 The 1787 Act, s.6. In choosing a site, the commissioners were exhorted by the legislation to take into account not only the availability of “a pure air, dry and healthy situation, the accommodation of water, the avoiding of all ill smells, and of being overlooked” but also the need to ensure that it was “situated at a proper distance from the center of the town” and yet sufficiently near as to be both close to the county hall and able to benefit from the security of the town itself: ibid.

208 (d) that the commissioners should negotiate and contract with appropriate landowners in order to buy such “houses, lands, tenements, or hereditaments” as may be needed to erect a new gaol, debtors’ prison and house of correction (and to provide “proper courts and outlets, and avenues to and from the same”, and a burial ground) and, to that end, they were authorised to make payment both for the acquisitions and for any consequential loss or damage caused by the building operation and “the execution of any of the powers of this Act”;677

(e) the putting in place of mechanisms for the conveyance of purchased lands and the payment of purchase moneys (including facilitating sale by persons or bodies with legal incapacity, the making of good title, the discharging of mortgages, and the valuation of property by jury where owners failed to co-operate);678

(f) that the commissioners should have the ability, on paying compensation, to extinguish rights in common land when purchasing property under the 1787 Act;679

(g) that the commissioners should be able to raise the moneys necessary for the project by assessing the amount required and levying a precept on the county rate, which would then be apportioned to, and collected from, “every town, parish, or place, within the said county” (but the rate precept was not to exceed one shilling in the £ annually, or three shillings in total680, and the moneys so raised were to be applied - and

677 The 1787 Act, s.7. The various payments (including ancillary costs) were to be in amounts either agreed between the affected parties or, in default, settled by jury, and were to be drawn from moneys raised under the Act: ibid. 678 The 1787 Act, ss.8-11. 679 The 1787 Act, ss.12, 13. Extinguishment was only permissible where the land-take did not exceed 5 acres in whole. Compensation for taking common land would be payable by the commissioners to the overseer(s) of the poor in the town, to be used to reduce the poor’s annual rates obligation: ibid., s.13. 680 The 1787 Act, ss.14, 16. The powers to levy and collect the statutory Land Tax within the county (especially as to enforcement and accounting) were to apply equally to the levying and collection of the present rates: ibid., s.14. Moreover, the local assessors of the Land Tax (under the direction of the Commissioners of the Land Tax) were charged with issuing “a separate and distinct rate and assessment upon every such respective town, parish, or place, in due proportion to the assessment to the Land Tax for the time being”: ibid., s.15. Where an occupier of a hereditament had only a minor interest in that land as a tenant (in general terms, a lease of less than 21 years, or having less than a life interest in a lease), it appeared that the occupier was exempt from payment of the rate in that he or she would be entitled to deduct the amount of rate from the rent due to the landlord: ibid., s.15. Nor was any person to become liable under the Act for double rates: ibid., s.17.

209 applied only - towards defraying the costs of obtaining the 1787 Act and then undertaking the Act’s purposes);681

(h) that the commissioners should cause to be built, or provided, a gaol, a “convenient prison for debtors”, and a house of correction to serve the various communities in the county, to be located “upon some eligible situation or situations, in or adjoining to the said town of Stafford” (and to benefit from “proper and convenient courts, yards, outlets, burial ground, and avenues thereto” and to be fitted-out with “all proper and necessary conveniences and things”);682

(i) that on completion, the new gaol, and the debtors’ prison and house of correction, should be designated as available for use by the county and by the separate “boroughs, towns corporate, franchises, liberties, and places” within the county;683

(j) that the commissioners should be required, in letting contracts for the various building works, to select and appoint contractors through a public tendering exercise, and to ensure: that adequate security for performance is taken; that contracts (incorporating penalty provisions) are formally executed and recorded; and that the works are inspected by an appointed surveyor or surveyors. In the event of default on a contract, the commissioners were also authorised to seek redress through the courts against the contractor or the surety;684

681 The 1787 Act, s.18. 682 The 1787 Act, s.19. The commissioners were also given power under the Act to convert the then existing gaol into a debtors’ prison or a house of correction (as a facility for the boroughs, towns and so forth within the county) as they saw fit: ibid., s.19. If it were not so used, the commissioners were empowered to sell the old gaol and to apply the proceeds towards the new gaol: ibid., s.32. None of the works (of building or conversion) were to be commenced until proper plans had been drawn up, the works costed, the expenditure approved by the commissioners in a publicised general meeting, and contracts let to “one or more able and experienced workman or workmen” who supplied “sufficient sureties”: ibid., s.20. The works were to be supervised by an appointed surveyor or surveyors. 683 The 1787 Act, s.19. The gaolers and keepers were to be answerable for the prisoners in their custody to the respective municipal body which had placed the prisoners with them: ibid. Justices for the boroughs and towns were entitled to commit petty offenders (ie. those not attracting the death penalty) to the new facilities, but they were not required to do so: ibid., s.22. And, likewise, officers of “inferior courts” within boroughs and towns (“courts of record for pleas, and also courts for the more easy and speedy recovery of small debts” from which issued “bailable process, and other writs and mandates”) were entitled to commit to the new debtors’ prison: ibid., s.23. On completion of the buildings (and once on notice), the county sheriff and the gaolers were to effect the transfer of all existing prisoners in their custody, and the same was to apply to prisoners then in the borough and town gaols: ibid., ss.30, 31. 684 The 1787 Act, s.21. Malicious interference with the gaol building works, or damaging the structure, was made an indictable felony: ibid., s.29.

210 (k) that the commissioners should be authorised for the building project to sanction (without charge) soil-digging, quarrying of sand, gravel and stone, and limestone-burning on or from “any common or waste land, river or brook”, so long as the contractor reinstated or fenced the pit or quarries to prevent hazard to “passengers or cattle”.685 All materials which were to be used for the building project (except those which were “the immediate property” of the commissioners’ agents or contractors) were to be deemed vested in the commissioners;686

(l) that in planning the layout of the new gaol, debtors’ prison and house of correction, the commissioners should have regard to various requirements, namely: separating male and female prisoners in the “wards and apartments”; separating debtors and those imprisoned for non-payment of “pecuniary penalties” (and thus exempt from “corporal punishment”) from “persons in custody for felonies, or other crimes” (the latter to be kept in “separate and distinct cells”); placing in separate cells adapted “to a greater degree of constraint” those prisoners who were “refractory or disorderly”; separating prisoners who were to be witnesses in felony proceedings; and providing a chapel in a “plain and decent room”, an infirmary and baths (in accordance with a national 1774 Act)687, accommodation for prisoners to undertake remunerated work, “proper and distinct airing grounds” for recreation, together with accommodation for the gaolers and keepers;688

685 The 1787 Act, s.24. The extraction workings were to be as near as possible to the construction site but, failing that, the commissioners could authorise workings from existing pits or quarries within a two- mile radius or the opening of new workings on “any lands or grounds near adjoining” so long as (a) they were not “a garden, orchard, yard, park, paddock, planted walk, or avenue to a house, or ground planted and set apart as a nursery for trees” and (b) the commissioners tendered to the owners “reasonable” payment by way of damages for the interference (such payment, in the event of dispute, to be quantified by the justices in general county quarter sessions): ibid. The winning of materials from a quarry by others before a contractor had completed his work, and without authority, was made an offence. 686 The 1787 Act, s.25. 687 14 Geo. 3 c.59 (1774) (“the 1774 Act”), being “An Act for preserving the Health of Prisoners in Gaol, and preventing the Gaol Distemper”. This Act required justices, amongst other things, to set apart at least two rooms in each gaol for sick prisoners (segregated by gender) and to provide for their care and treatment. The 1774 Act was repealed by the Statute Law Revision Act 1871, s.1, sch. 688 The 1787 Act, s.26. This section also required the commissioners to provide special prisoner- reception facilities (via “a lazaretto or ward in the said gaol, with separate cells”) so that new inmates could be held, pending examination by the surgeon or apothecary and, if necessary, washed “in order to prevent, as far as may be, the introduction of any infectious disease”. No prisoner prior to conviction was to be kept underground (unless “disorderly or refractory”): ibid.

211 (m) that the commissioners should be empowered to enforce a development ban around the three institutional buildings in order to secure “a free circulation of pure and wholesome air” and to prevent the occurrence of “the gaol fever, and other malignant diseases”;689

(n) that the commissioners should keep full records and accounts in respect of the project and, on completion, should hand those documents and any monetary balance to the clerk of the peace for the county and the county treasurer, respectively. The three penal institutions, their lands and “all things whatsoever relating thereto” would then be deemed vested in the clerk of the peace;690 and

(o) the providing of an appeal mechanism for persons aggrieved by steps taken pursuant to the 1787 Act691, and the setting down of jurisdictional and time limitations for legal process.692

5. Once the appointed commissioners’ functions had expired, their powers under the 1787 Act were to pass to the county sheriff and the county justices.693 Responsibility for maintenance of the new (or refurbished) gaol complex, and for effecting fire insurance cover, would then lie with the county.694 Much of the remainder of the 1787 Act was devoted to reinforcing the justices’ powers with respect to the following: (a) appointment of “an experienced surgeon or apothecary” to attend the institutions and to report to quarter sessions on the health of prisoners in his care;695

689 The 1787 Act, s.27. The designated zone extended for 40 yards from the various gaol buildings (which radius would be reduced to 10 yards for the debtors’ prison and house of correction if the old gaol were to be converted for such use: ibid., s.28). The restriction related to the erection of buildings, the depositing of various materials on the land (excepting erecting a 6 foot fence), and the keeping of swine. Breach of the restriction (after service of a contravention notice) could result in financial penalty and removal of the offending structure or operation. The growing of trees within the designated zone was also prohibited. 690 The 1787 Act, s.33. The clerk of the peace was to be designated “a corporation sole” for the purpose of holding the property: ibid. 691 The 1787 Act, s.49. In the absence of another route of redress, appeal was to lie to general quarter sessions.The justices’ determination was to “be final, binding, and conclusive, to all intents and purposes”: ibid. 692 The 1787 Act, ss.49, 52. 693 The 1787 Act, s.34. 694 The 1787 Act, s.35. 695 The 1787 Act, s.37.

212 (b) appointment of a gaoler or gaolers for the two prisons (and assistants) on the basis of a salary;696

(d) purchasing of “utensils, chattels, and materials” to facilitate prisoners undertaking work appropriate to their “age, sex, or condition”;698

(e) vesting in the county justices ownership of all goods and materials purchased for the use of prisoners;699 and

(f) in the event of the buildings being damaged (deliberately or accidentally), empowering a single justice to order necessary repairs so as to ensure “safe custody” of the prisoners.700

Status of the 1787 Act 6. The principal purpose of the 1787 Act was to authorise and facilitate the construction of new gaol and correctional facilities for the county of Staffordshire. Apart from brief reference to national legislation (and an incongruous reference to gaol legislation relating to Gloucestershire, presumably as a short-hand to import allied powers into Staffordshire’s legislation), the 1787 Act appears to stand on its own.

696 The 1787 Act, s.43. The salaries were to be paid “in the same manner as the salary to the gaoler for the said county now is or has been usually paid”: ibid. The justices at quarter sessions were empowered to remove and disqualify a gaoler for misbehaviour in office: ibid., s.44; and to retire on an annuity “proportioned to his merits” any gaoler who ceased to be able to carry out his duties through incapacity arising from “confirmed sickness, age, or infirmity”: ibid., s.45. 697 The 1787 Act, s.38. Amongst other things, the visitors were to examine the state of the buildings, the conduct of the officers and the condition of the prisoners; to ensure that part of a prisoner’s earnings went (if appropriate) to his wife and any child of under 14 years resident in the county; to ensure that prisoners who were “most diligent, and endeavour[ed] to promote industry and good order in other prisoners” were rewarded; and to report to each quarter sessions on the state of the gaol, debtors’ prison and house of correction and on “all the abuses that may occur to their observation therein”: ibid. Other justices who were not designated visitors were also entitled to make spot inspections. On receiving any report of abuse, the justices in quarter sessions were required without unreasonable delay “to adopt the most effectual measures for enquiring into and rectifying” the situation and “promoting good order”: ibid. 698 The 1787 Act, s.39. 699 The 1787 Act, s.40. In the event that any person misappropriated goods or materials they would be liable to forfeit a financial penalty: ibid., s.41. Section 47 set down a mechanism for enforcement against defaulters. 700 The 1787 Act, s.42.

213 7. As indicated below, the gaol and other facilities were built in Stafford (as the county town) around 1793. Operational as a prison today, under the auspices of HM Prison Service, the 1787 local statutory powers (and obligations) were overtaken by national powers (creating a centralised prison system) from 1877 onwards.701

8. The whole of the 1787 Act has become spent, and may now be repealed.

Archive-based history 9. Stafford gaol was built and operational by 1793, replacing an overcrowded and much older gaol which stood in the vicinity of the town’s North Gate. The new prison was located at what is now 54 Gaol Road in north Stafford. It was built originally with an accompanying governor’s house which fronted on to Gaol Road, and the building has since been enlarged on several occasions.702 A wing called The Crescent was built around 1832 and extended in 1865 (when washing facilities were added).703

10. It appears that convicted felons, prisoners in the house of correction and debtors were all held within the new (1793) gaol building, and not on separate sites.704

11. Although the three institutions may have been co-located, the house of correction appears to have been transferred in or around 1832-33705, and henceforth was located in a new crescent-shaped building (known as The Crescent: see above), within the northern part of the gaol complex site.706

701 The Prison Act 1877 (c.21), vesting prisons in the Home Secretary, established the Prison Commissioners and laid down the rubric for the future management and maintenance of prisons in England and Wales. 702 See www.search.staffspasttrack.org.uk/engine/resource/default.asp?theme=452&text 703 Ibid. 704 The quarter sessions order book entries for the Staffordshire county gaol (held by the Staffordshire County Records Office, ref. Q/SO 20 f167-f177, f236v) show that in January 1793 a single governor was to manage the gaol (operational from May 1793), paid from the county rate, and that his officers were to deal with all classes of prisoner on the site. In the January 1793 order book there was mention of a salary for the keeper of the house of correction at Stafford. By 1794 it appears that the house of correction had been transferred from another location (there being no mention of a separate house of correction, or a separate keeper, by the January 1794 session). [This information was provided courtesy of Rebecca Jackson, Archivist in the Staffordshire Record Office]. 705 See http://www.institutions.org.uk/prisons/England/SFK/stafford_gaol.htm for The 12th Report of Inspectors of Prisons - Southern & Western District Staffordshire (1847/48) relating to Stafford county gaol and house of correction; and http://www.staffspasttrack.org.uk/exhibit/crimeandpunishment/imagepage/rules.htm. 706 The new house of correction accommodation is shown on a plan of 1841 in the County Record Office (Q/AG/2) and is described in White’s Directory of Staffordshire (1834). By 1856, several new buildings had been added to the site, and the 1793 building was then being used almost entirely for housing insolvent and county court debtors, the prison hospital, workshops and the governor’s house (the 1833 house of correction addition was shown as housing male prisoners): CRO plan ref. Q/AE/1.

214 12. HMP Stafford today is an operational prison, holding category C prisoners, and incorporates a support wing for vulnerable prisoners.707

Extent 13. The 1787 Act applies locally only within the county of Staffordshire in England.

Consultation 14. The Home Office, HM Prison Service and Staffordshire County Council have been consulted about this repeal proposal.

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707 See www.hmprisonservice.gov.uk/prisoninformation/locateaprison/prison. On the history of Stafford gaol generally, see The Victoria County History of Staffordshire, vol. VI, pp. 204-5.

215 COUNTY GAOLS GROUP 17 - WARWICKSHIRE ______Reference Extent of repeal or revocation ______

8 Geo.3 c.40 (1768) The whole Act. (Coventry Gaol Act)

17 Geo.3 c.58 (1777) The whole Act. (Warwick Gaol Act) ______

8 Geo.3 c.40 (1768) (Coventry Gaol Act 1768) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout the country) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.708 That power, however, fell short of outright control. In the latter half of the 18th century the power also of gaol management started to be ceded.709 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Coventry, the city justices sought legislation in respect of the city’s common gaol710 on the grounds that the building was “very ancient” and had so “greatly gone to decay” that it was incapable of proper repair. Moreover, the accommodation had become too small for its purpose; its replacement (on an adjoining site) needed to be

708 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (cited in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784). Rebuilding of gaols was also provided for, after the Coventry Gaol Act of 1768, in 24 Geo.3 Sess.2 c.54 (1784). 709 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 710 “Common” in the sense that it was occupied concurrently by “criminals, debtors, and others”: the Coventry Gaol Act 1768, s.6. (Acts of this vintage used numbers in the margin of the text separate from the marginal notes, rather than using discrete section numbers as is the practice today. However, we have adopted a sectional form of citation as a convenient means of textual location and identification.)

216 larger. In 1768 Parliament authorised by local Act (“the 1768 Act”)711 the following steps: (a) purchasing by the local justices of a site from the corporation of the city and county of Coventry for a new gaol.712 That site included (but exceeded the site of) the existing gaol, which was then owned by the corporation;

(b) taking possession of the required land, which would then become vested in the justices for the purpose of building a common gaol, a gaoler’s residence and “such other conveniences as may be necessary”;713

(c) valuing the building materials presently on site, and ordering plans and estimates for building a new gaol (having regard to the value of the reusable materials);714

(d) agreeing demolition of the existing gaol, and rebuilding and “fitting up” the replacement facility on the designated site;715 and

(e) raising sufficient money to defray the expenses involved in the land purchase, the rebuilding and in upgrading alternative temporary accommodation (see below).716 A town and parish rate to be levied across the whole county was authorised (capped at an aggregate £2,000), as were ancillary collection and enforcement powers.717 Provision was made for any surplus moneys thus raised to be paid into the “common stock” of the county,718 and for all receipts and expenditure to be regularly accounted for.

711 8 Geo.3 c.40 (1768). The Act was expressed to be for “Rebuilding and Enlarging the Common Gaol of the City and County of the City of Coventry, and for appointing a Place for the Custody of Prisoners in the mean time”. 712 The justices were authorised to assess the site’s value, and the compensation payable, using an impartial jury who would be empanelled as part of the purchase process, which process would commence at the General or Quarter Sessions next following 25 March 1768 “or at any other subsequent General or Quarter Sessions”: the 1768 Act, ss.1-4. 713 The 1768 Act, s.6. 714 The 1768 Act, s.7. 715 The 1768 Act, s.7. 716 The 1768 Act, ss.8, 9. 717 The 1768 Act, ss.9-11. A statutory appeal process was also put in place for persons who believed themselves “overcharged or otherwise aggrieved”, together with provision for limitation of actions: ibid., s.13.

217 3. Whilst the demolition and rebuilding were in hand, prisoners were to be housed temporarily in the city’s house of correction719 and the adjoining Gateway building (both owned by the corporation), subject to that accommodation first being made “of sufficient strength for a prison”.720

4. The 1768 Act specifically provided that the common gaol and related buildings (which were deemed to be for the city and county) would “from time to time be maintained, supported, and repaired by such ways and means as other gaols in this Kingdom are by law to be maintained, supported and repaired”.721 Today, the obligation to maintain the fabric of operational prisons lies with the Secretary of State for the Home Department (and HM Prison Service, for which he is responsible).722

Status of the 1768 Act 5. The 1768 Act remains on the statute book. It was followed by further legislation with a similar purpose in 1822 (“the 1822 Act”).723 The 1822 Act (which was a local Act, but which was expressed to be deemed a public Act)724 subsequently became spent and was repealed in 1980.725

6. The 1768 Act is now spent and should likewise be repealed. The following two factors (the provisions of the 1822 Act, and the history of Coventry gaol) point to this conclusion.

(a) The 1822 Act 7. As with the 1768 Act, the 1822 Act also was designed to provide for the replacement of the existing Coventry gaol726 and the city’s house of correction on the ground that the buildings were “respectively too small, insecure, and unfit for the proper accommodation of the prisoners usually confined therein” and were

718 The 1768 Act, s.12. 719 A “house of correction” was ordinarily a reformatory integral to the national system for poor relief (being a method of constraint provided for those unemployed persons who refused to work). By contrast, “gaols” were places of detention pending criminal trial or for punishment. 720 The 1768 Act, ss.7, 8. 721 The 1768 Act, s.11. 722 Prison Act 1952, s.4 (maintenance obligation), s.33 (power to alter, enlarge or rebuild). 723 “An Act for building a new Gaol and House of Correction for the City and County of the City of Coventry” (3 Geo.4 c.lxxii). 724 The 1822 Act, s.36. 725 West Midlands County Council Act 1980 (c.xi), s.121, Sch 5, pt 1. The 1980 Act (which was a local Act) did not refer to, or repeal, the 1768 Act. 726 The existing gaol and gaoler’s house “adjoins to the County Hall”: the 1822 Act, s.20. The County Hall was built in 1783-84.

218 “inconveniently situated”.727 The intention was to replace the two institutions with a new common gaol and a new house of correction built elsewhere in the city.728

8. Although not referring by name to the 1768 Act, the 1822 Act recites specifically in its preamble (by way of justification for its enactment) that “on account of certain local circumstances such gaol and house of correction cannot be erected and built by the laws now in force”. The 1822 Act was designed, as with its predecessor, to permit the local justices to purchase various parcels of land and to erect the necessary custodial facilities.

9. The general layout of the 1822 Act, although longer and more detailed than that of 1768, followed a not dissimilar pattern. It provided powers: (a) to purchase lands to a maximum of 2 acres;

(b) to free certain lands from rights of common;

(d) to value the lands (and to determine valuation disputes);

(e) to limit the time for purchase (to two years);

(f) to hold in trust any purchase moneys due to persons with legal incapacity (to provide an income or acquire replacement property);

(g) to effect land conveyance where the owner was non-compliant or failed to make good title (and to pay moneys into court);

(h) “with all convenient speed after the passing of this Act”, to build and equip a “convenient” new gaol and house of correction729, together with an ancillary infirmary and gaolers’ residences;

727 The 1822 Act, preamble. 728 “in a more open and airy part”: the 1822 Act, preamble and s.1. 729 The 1822 Act, s.17. The gaol was to be designed “for the confinement of criminals, debtors, and others” and to be designated “the Common Gaol and House of Correction” for the city and county: ibid., ss.17, 19.

219 (i) to dispose of part of the existing gaol and buildings by sale (and retain part for use in connection with the assize and quarter sessions hearings730);

(j) to raise loans for the work, mortgaged on the county rates;731 and

(k) to deal with appeals by “persons aggrieved” by steps taken under the Act.732

10. Obligations were placed on the local sheriffs to keep in repair and maintain the new gaol (and to have responsibility for the prisoners held in custody), and on the local justices to do the same for the new house of correction.733 The total cost of building and equipping the new facilities was capped at £20,000.734

(b) Gaol history 11. The second factor derives from the history of the gaol as recorded in local archive material.

12. The old Coventry gaol’s existence pre-dated erection of the County Hall (in 1783-84). It had been rebuilt and enlarged on its same site between 1764 and 1773.735 County Hall was built next to the old gaol, on the west side of Trinity Lane in Coventry, on the site of the former guildhall and courtroom.

13. Between 1823 and 1831 a new gaol was built immediately to the north of County Hall (on land purchased for the purpose)736, extending as far as Trinity Churchyard. Holy Trinity Vicarage and several houses in Trinity Lane were demolished to make way for it.737 The 1822 Act specifically included in its Schedule four houses to be taken in whole or in part (with appurtenant gardens), together with

730 For use as a “depository for prisoners brought up for trial” and for “lodging and securing depredators and disorderly persons apprehended in the night time”, and for accommodating jurors (in the former gaoler’s house): the 1822 Act, s.20. 731 The 1822 Act, ss.24, 25. 732 The 1822 Act, s.34. 733 The 1822 Act, s.19. Repair, maintenance and running costs were to be met from the county rates: ibid., ss.21, 22. 734 The 1822 Act, s.23. The annual rate raised was not to exceed £1,650. 735 According to the Sessions minutes for 19 April 1773 (Coventry Archives BA/E/B/24/3), which speak of the works being undertaken “in pursuance of the late Act of Parliament”. We are grateful to the County Record Office of Warwickshire County Council for this information. 736 Contracts for construction of the gaol (and other papers), 1823-31 (Warwickshire Record Office QS 64/11). 737 See A History of the County of Warwick: Vol. VIII (publ. 1969), pp 141-146.

220 “Lammas” land (for which compensation would be payable to the churchwardens of the relevant parish for use in that parish).738

14. The old gaol, on the site to the west of County Hall, became the house of correction (and this site remained in the county’s possession into the 19th century). The new gaol on the site to the north was sold by the county authority in 1865.739

15. The clear indications are that: (a) by 1773 the old gaol had been rebuilt and enlarged on its original site, which was situated to the west of where County Hall would shortly be built. Those works of rebuilding were undertaken in furtherance of the 1768 Act; and

(b) by 1831 the old gaol had been replaced (as a gaol) by the construction of a new gaol building on a site acquired to the north of County Hall (pursuant to the powers in the 1822 Act).

The 1768 Act (and its purposes) had become redundant by the time the new gaol opened in 1831, and remains redundant.

16. No operational prison (within the aegis of HM Prison Service) exists today in Coventry.

17 Geo.3 c.58 (1777) (Warwick Gaol Act 1777) Background and purpose 17. By 1776, the county justices for Warwickshire decided that the county gaol, in the county town of Warwick, was “too small for the reception and confinement of prisoners” (and that the local house of correction, which was used as an overspill facility, was also “too small, and insufficient” for this purpose).740 They petitioned Parliament by Bill for powers to enlarge the house of correction.

18. Prior to petitioning, the justices had taken several steps in this direction. Those steps were:

738 The 1822 Act, s.3. 739 Contract for sale and plans, 1865 (Warwickshire Record Office QS 24/604). 740 Preamble to 17 Geo.3 c.58 (1777) (“the 1777 Act”) being “An Act for enlarging the publick Gaol of the County of Warwick, and for other Purposes therein mentioned”. The grand jury at the county assizes

221 (a) making an order to empower two or more justices to contract with a named landowner within the borough “for the absolute purchase of a certain messuage or tenement, . . . called The Bridewell” adjoining the existing house of correction, for “the purpose of enlarging the said house of correction, and rendering the same more healthy and commodious for the confinement and custody of prisoners”;741

(b) the placing of an upper limit of £700 on the purchase price, to be paid from the county stock;742 and

(c) the actual contracting to purchase the land, the payment over of the purchase price, and the conveyance in June 1776 of the “said messuage or tenement, with the appurtenances” to be held in trust for use as a house of correction (in conjunction with the existing adjoining house of correction).743

19. However, the grand jury shortly reported744 that the county gaol was “too small and insufficient” for its purpose, so that “the lives and healths of the prisoners might be greatly endangered”, and that those premises should be “enlarged, repaired and amended”. Against this recommendation, the county justices formed the view that it would be preferable to put aside the house of correction enlargement scheme and to use the acquired land to extend the public gaol. However, there arose a doubt as to whether legally the land could be put to another use, given the prior conveyance and trust, and the absence of specific statutory power.

20. The 1777 Act was designed, therefore, to bring about a limited number of consequences. These were: (a) to empower the named trustees (and their heirs and assigns) to continue to hold the acquired land “for the purpose of enlarging the publick gaol and house of correction of and for the said county of

had reported (in March 1776) on the inadequacy of the house of correction and the risk that “the lives and healths of the prisoners might be thereby greatly endangered”: ibid., preamble. 741 The 1777 Act, preamble. 742 The 1777 Act, preamble. 743 The 1777 Act, preamble. 744 In March 1777: preamble to the 1777 Act.

222 Warwick, or either of them” in such manner as the justices in their discretion should decide;745

(b) to empower the justices to use the combined site (the existing house of correction and the newly acquired land), or any part of it, for gaol or house of correction purposes as the justices deemed necessary;746

(d) to authorise expenditure flowing from securing, and executing the purposes of, the 1777 Act to be defrayed from the publick county stock.748

Status of the 1777 Act 21. The 1777 Act made clear (in its preamble) that “the aid and authority of Parliament” were required to fulfil the justices’ revised objectives, but the Act was silent as to the existence of previous legislation which may have required extending. No power was sought, for example, to raise a supplemental county rate, presumably because the county stock was then sufficient for the purpose.

22. For the reasons explained below, because the Warwick gaol was extended on to acquired land, and later was decommissioned and demolished, the whole of the 1777 Act became spent and may now be repealed.

Archive-based history 23. Early versions of the gaol and house of correction in Warwick were constructed around 1696, on the west side of Northgate Street. By 1758 urgent repairs were necessary to both institutions, but it was not until after 1776 that large scale reconstruction was decided upon.

745 The 1777 Act, s.1. (The 1777 Act carried only side headings for individual sections, but no section numbers. For ease of identification, therefore, we have adopted in this Note a notional numbering sequence). The effect of section 1 was that the permitted use, now extended, would override the more limited use recited in the original conveyance. 746 The 1777 Act, ss.2, 3. Once part of the land had been appropriated for either gaol or house of correction purposes, future use of that part would then be so designated: ibid., s.3. The justices were empowered also to set aside “some convenient apartment” within an enlarged gaol for use as a chapel for the prisoners: ibid., s.2. 747 The 1777 Act, s.4. The justices were empowered to reappropriate the accommodation for gaol or house of correction enlargement purposes if that became necessary in the future. 748 The 1777 Act, s.5.

223 24. Between 1779 and 1783 the gaol building was significantly enlarged on its then site. Following on from this, between 1784 and 1787, a new house of correction was built in Warwick, on the north side of Barrack Street. That building allowed parts of the former house of correction to be reutilised as an extension to the adjoining gaol premises from 1790 onwards (completed by 1798).749

25. Both the county gaol buildings and the rebuilt house of correction were decommissioned in 1860 in favour of a new - and larger - prison situated off Cape Road in the town (which, in its turn, was demolished by 1934). Some of the old gaol buildings were demolished in 1862 to make way for barracks erected for the Warwickshire Militia, although part of the complex was used as a military hospital in 1865.750 All the buildings - with the exception of the original gaol frontages on Barrack Street (which were retained until around 1972) - had been demolished by 1886.751

26. No operational prison, under the aegis of HM Prison Service, exists today in Warwick. Two penal institutions serve Warwickshire; both are situated in Rugby.

Extent 27. The 1768 and 1777 Acts apply locally only within the county of Warwickshire, in England.

Consultation 28. The Home Office, HM Prison Service, Warwickshire County Council and Coventry City Council have been consulted about this repeal proposal.

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749 See A History of the County of Warwick: Vol. VIII: The City of Coventry and Borough of Warwick (publ. 1969, in the Victoria County History series), pp. 447-451. 750 See the 1865 County Handbook (information kindly provided by G. Booth, senior archivist at Warwickshire County Record Office). 751 The Barrack Street range contained the former governor’s house and the main entrance to the gaol (see the 1851 Board of Health plans of Warwick). Up until 1886, the buildings housed the town’s police station (see 1886 edition 1:500 Ordnance Survey map, Warwickshire XXXIII.13.5). We are grateful to Mr. Booth (WCRO) for providing the 1972 date from his personal knowledge.

224 COUNTY GAOLS GROUP 18 - WEST SUSSEX ______Reference Extent of repeal or revocation ______27 Geo.3 c.58 (1787) The whole Act. (Sussex Gaol Act) ______

27 Geo.3 c.58 (1787) (Sussex Gaol Act 1787) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.752 That power, however, fell short of outright control. In the latter half of the 18th century the power also of gaol management started to be ceded.753 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In Sussex, in October 1775, the county justices sitting in quarter sessions, following a recommendation from the grand jury, decided that the existing county gaol was inadequate and should be replaced. To that end they authorised the purchase of a suitable site (“in a more convenient situation” than the present gaol) in the town and borough of Horsham and the construction of the replacement gaol building.754 Acting (presumably) under existing national powers the justices, through named trustees, in December of the same year leased a parcel of land “for the

752 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 753 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 754 Preamble to 27 Geo.3 c.58 (1787) (“the 1787 Act”) being “An Act for vesting the Scite, Buildings, and other the Premises belonging to the Old Gaol or Prison of the County of Sussex, in Trustees, for the Purpose of conveying the same to the Right Honourable Frances Viscountess Irwin, and her Heirs; and to declare the New Gaol or Prison, lately built, to be the Common Gaol for the said County”. The old gaol (which was designated “the common gaol”) was described by the grand jury as being “insufficient, both as to the security and health of the prisoners”: ibid. The town of Horsham, having lost its borough status (dating back to 1235), is today located in the county of West Sussex.

225 purpose of erecting and building a common gaol or prison in and upon, for the use of the inhabitants of the said County of Sussex for ever, and to and for no other use, intent, or purpose whatsoever”.755

3. Building of “a complete and substantial gaol, gaoler’s house, chapel, and infirmary” was undertaken (the cost being charged to the county’s inhabitants by levy on the local rates), and the institution was then passed to the county sheriff for use from August 1779.756

4. Meanwhile, the old gaol (which had been vacated), and such land as was linked to it, were put up for sale by public auction. The best price (£620) was offered by Frances, Viscountess Irwin.757 Given the terms of the perpetual trust relating to the old gaol758, however, the three surviving trustees lacked legal authority to “make a good and perfect conveyance” of the site to the proposed purchaser.759 To this end, the three trustees “on behalf of themselves, and the inhabitants of the said county of Sussex” sought powers through the 1787 Act.

5. The 1787 Act authorised (in broad terms) the following steps: (a) that the new gaol (together with the gaoler’s house, chapel and infirmary) should “for ever hereafter be and remain [designated] the common gaol and prison of and for the said county of Sussex”, and that the various buildings should be “maintained, supported, and repaired” in the manner prescribed by national law;760

(b) that all the land and buildings occupied for the purposes of the old gaol should be vested in the three named trustees (and their heirs and assigns), free from the trusts which were recited in the 1750 deeds, but subject to the requirement that the trustees “as soon as conveniently may be after the passing of [the 1787] Act”, and subject

755 The 1787 Act, preamble. The 1787 Act gives no indication of the specific statutory powers used by the justices in 1775 to acquire land or to expend moneys on the building operation. 756 The 1787 Act, preamble. The new gaol was to be used “as the common gaol or prison of the said county”: ibid. 757 The 1787 Act, preamble. Sale by auction was authorised by the county justices (in quarter sessions) in May 1782. 758 The old gaol was held in trust by appointed trustees and their successors.The site (at Ockledons in Horsham, abutting “the great street, commonly called The Bull’s Place”) had been leased to the trustees in January 1750: preamble to the 1787 Act. 759 The 1787 Act, preamble. 760 The 1787 Act, s.1.

226 to Frances, Viscountess Irwin first paying the “consideration money”, convey the premises to the Viscountess without encumbrance;761

(c) that the trustees should account to the county justices for the purchase moneys received and pay those moneys into the county stock, having first deducted the costs of obtaining the 1787 Act and completing the land conveyance;762 and

(d) that there be a general saving for all third-party rights in the respective parcels of land763 which may have accrued prior to the passing of the 1787 Act.764

Status of the 1787 Act 6. The main purpose of the 1787 Act - which was a relatively short piece of legislation - was to sanction prospective breach of the trust relating to the holding of land for the old gaol in Horsham, and to authorise sale and transfer of that land. The 1787 Act’s purpose in connection with the new gaol was more limited. It did not seek to authorise the land acquisition or the building or the raising of moneys. Instead, it provided simply for gaol designation and future maintenance.

7. Although the 1787 Act referred to specific indentures (deeds), it did not refer by name to other legislation. It appears implied that there was already power to construct the replacement gaol and to expend moneys on that task. Authority probably stemmed from existing national legislation.765

8. The purpose of the 1787 Act, in the main, had expired once the old gaol was sold. The continuing obligations relating to the new gaol only remained relevant

761 The 1787 Act, ss.2, 3. 762 The 1787 Act, s.4. Once the moneys were paid into the county stock they were to be apportioned and credited to the county divisions in the same manner as those divisions contributed to the purchase price of the new gaol site. 763 Ie. the parcel sold to the Viscountess and the parcel purchased for the new gaol. 764 The 1787 Act, s.5. 765 By 1775 (when the county justices gave the go-ahead for the replacement project) the statute book already had on it Acts of 1698 (11 Will.3 c.19), 1711 (10 Anne c.24), 1719 (6 Geo.1 c.19), 1758 (32 Geo.2 c.28) and 1774 (14 Geo.3 c.59). It was probably this last-mentioned statute of 1774, “An Act for preserving the Health of prisoners in Gaol, and preventing the Gaol Distemper”, which helped energise the Sussex justices to take action. The position was reinforced by the enactment in 1784 (ahead of the 1787 Act) of legislation amending the 1698 Act and enabling justices to build and repair gaols in their counties (24 Geo.3 Sess.2 c.54). The 1787 Act did speak in non-specific terms, though, of power to build the gaol and ancillary buildings on the basis of “the proper costs and charges of the inhabitants of the several divisions of the said county, assessed, levied, and collected according to the form of the [unspecified] statute in that case made and provided”: preamble to the 1787 Act.

227 whilst that institution was functioning. As indicated below, the Horsham gaol closed in 1845.

9. The whole of the 1787 Act has become spent, and may now be repealed.

Archive-based history 10. The original county gaol appears to have been transferred from Lewes (in the eastern division of the county) to Horsham (in the western division) by the late 1530s. In its early embodiments it occupied various houses. In about 1641 it moved to a building which may have occupied the site of today’s post office on the north side of the Carfax. In the 1720s the gaol was described as being a stone building, having a two-bayed two-storey façade crowned with battlements.766 In 1767 it was recorded that the gaol could accommodate 19 prisoners.767

11. Gaol conditions were severely criticised by the prison reformer John Howard in 1774, and in 1775 construction of a new gaol commenced. The old gaol was decommissioned, but it was known that as late as 1868 part of the original building still survived, although put to other use.768 Today, no trace of the old building exists (the last remains having been demolished around 1972).

12. The new gaol was sited on the north side of East Street (then known as New Street) on the margins of the town of Horsham, adjacent to Gaol Green. It was built partly with local stone, and designed in the classical style.769 The gaol was enlarged in 1819-20, but after 1830 (by which date the spring assizes had relocated to Lewes) it was used only for the confinement of debtors, those committed for trial, and as a place of execution for felons brought from Lewes.770 The gaol closed in 1845 and

766 British Library Lansd. MS.918, ff19, 28; W. Albery (see below)., p. 338. 767 British Library Add. MS 32980, ff. 380-1. 768 See generally hereon: W. Albery A Millennium of Facts in the History of Horsham and Sussex, 947- 1947 (publ. 1947) (“Albery Hist. Horsham”), pp. 328-330, 332, 337-339, 342, 352; D.E. Hurst Horsham: Its History and Antiquities, (1868) p. 113, both referred to in ‘Horsham: General history of the town’, Victoria County History: A History of the County of Sussex Vol. 6 Pt. 2 (Bramber Rape, North-Western Part, including Horsham) (1986), pp. 131-156 at www.british-history.ac.uk/report.asp?compid=18350. The parish tithe map of 1844 shows the plot occupied by the Richmond Arms Inn (information courtesy of Richard Childs, West Sussex County Archivist based, in part, on Annabelle Hughes’ work Horsham Gaol and Gaolers (publ. 2001 in the Horsham Museum journal)). 769 The two-storey building comprised five bays set between two end pavilions, with the large prison block sited behind. Designed by the Duke of Richmond’s surveyor, this was the first “model prison” built in England, and the first provided with single cells. See eg. Albery Hist. Horsham, pp. 323, 371, 379, 392-397. 770 Albery Hist. Horsham, p. 402.

228 was demolished shortly thereafter.771 The site, by 1875, was occupied by the county police station.772

13. The only prisons presently operating in East or West Sussex (under the aegis of HM Prison Service) are those located at Lewes and at Ford (near Arundel).

Extent 14. The 1787 Act applies locally only within the county of West Sussex in England.

Consultation 15. The Home Office, HM Prison Service and West Sussex County Council have been consulted about this repeal proposal.

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771 Apparently the salvaged materials were used in the building of the railway line between Horsham and Three Bridges (the junction with the London-Brighton main line): see Albery Hist. Horsham, pp. 403-5. 772 As shown on the first edition Ordnance Survey map (1875, reprinted 1883). The site today is probably (odd nos.) 23-33 East Street, Horsham.

229 COUNTY GAOLS GROUP 19 - WILTSHIRE ______Reference Extent of repeal or revocation ______39 & 40 Geo.3 c.liii (1800) The whole Act. (New Sarum Gaol Act)

______

39 & 40 Geo.3 c.liii (1800) (New Sarum Gaol Act 1800) Background and purpose 1. During the early part of the 18th century, justices of the peace (who were a key part of local governance in urban and rural areas throughout England and Wales) were given limited power by Parliament in connection with gaols, both to build new facilities and to repair existing stock.773 That power, however, fell short of outright control. In the latter half of the 18th century the power of gaol management also started to be ceded.774 Across the country, in a spate of prison reform (which was applied with varying degrees of enthusiasm in different localities), local justices sought specific powers to expand and improve the prison accommodation for which they were administratively responsible. Many local gaols had fallen into disrepair and their condition produced a significant health hazard.

2. In the city of New Sarum (now Salisbury) in Wiltshire the common gaol for the city had, by the early 1780s, “become very ruinous and insecure, and [was] too small, and [was] also inconveniently situated”.775 This gaol was the responsibility of the Lord Bishop of Sarum (as lord of the manor of the city “in right of his see”)776 and of his appointed gaol keeper, both of whom were “subject to the repair, support, and maintenance of a proper gaol within the said city, and to the custody and safe

773 11 Will.3 c.19 (1698) (“An Act to enable Justices of the Peace to build and repair Gaols in their respective Counties”) which was time-limited, continued by 10 Anne c.24 (1711), and made perpetual by 6 Geo.1 c.19 (1719) (The 1698 Act was cited as a 1700 Act in Holdsworth’s A History of English Law (1938), vol. 10, p.181). The 1698 Act was subsequently amended by 24 Geo.3 Sess.2 c.54 (an Act of 1784), which later Act also provided for the rebuilding of gaols. 774 For example, in 1758 by 32 Geo.2 c.28 (Debtors Imprisonment Act) and in 1791 by 31 Geo.3 c.46 (Gaols Act). 775 Preamble to 25 Geo.3 c.93 (1785) (“the 1785 Act”), being “An Act for the Removal and Rebuilding of the Council Chamber, Guildhall, and Gaol, of the City of New Sarum; and for ascertaining the Tolls of the Market, and regulating the Chairmen within the said City”. In the Chronological Table of the Statutes this Act is assigned the short title “Salisbury: improvement Act 1785”. See also the Salisbury City minute book for 13 November 1782 (Wiltshire & Swindon Record Office, ref. G23/1/5) which records the city gaol as being in a poor state [information kindly provided by Andrew Crookston, county archivist]. 776 The 1785 Act, preamble.

230 keeping of all prisoners, as well as felons and debtors, as others, within the liberties of the said city and the close [of the Cathedral canons]”.777

3. The mayor and commonalty of the city corporation were willing to take over the responsibility of rebuilding the gaol (and providing accommodation for the bishop’s courts and certain other facilities) in exchange for the bishop transferring ownership in the various lands to the corporation together with the benefit of all the “tolls, fees, and perquisites” arising from the bishop’s rights attached to the holding of fairs and markets within the city.778 The city corporation would then build “a good and substantial gaol for the said city, and the close thereof”; take on its repair and maintenance; and be responsible for the safe custody of the assigned prisoners.779

4. To this end the 1785 Act was promoted and the requisite powers obtained for transferring ownership of the gaol and its grounds by August 1785. With that ownership came the obligation of repair and support of “a good, substantial, and proper common gaol for the said city” and responsibility for the custody of the prisoners within it.780 The city corporation were then required to demolish the old common gaol (together with the council house and the guildhall, which were respectively fire-damaged and decayed), and to rebuild, amongst other things, a new common gaol for the city, conveniently sited within the city or its “suburbs or precincts”.781

5. As an interim measure the prisoners then housed in the old city gaol (and those then committed by the city justices) were to be transferred to the county gaol.782

6. By 1800, however, the needs of the city had changed. The new city gaol had not been built under the terms of the 1785 Act, notwithstanding the enjoinder in the

777 Ibid. 778 Ibid. 779 Ibid. 780 The 1785 Act, ss.1, 2. On formal transfer, the bishop and the incumbent gaol keeper were discharged from all their legal obligations in this regard. 781 The 1785 Act, ss.3, 6. This common gaol was to be designed to hold felons, debtors and “others”: ibid., s.6. The 1785 Act, in sections 9 to 12, laid down the machinery for acquiring an alternative site, determining and settling the purchase moneys and raising the moneys on loan, remedying defects in title, effecting legal transfer, and so on. 782 The county gaol was situated in the parish of Fisherton Anger (but the justices could also commit to any other suitable gaol or bridewell in Wiltshire): the 1785 Act, s.7. The city corporation was required to make financial provision (“pecuniary satisfaction”) for the maintenance of the prisoners so committed, and to provide financial compensation to the city gaol keeper who would be made redundant: ibid., ss.7,

231 Act to ensure that its purpose was put into effect “with all convenient speed”.783 The city corporation, “in obedience to and performance of the said [1785] Act”, had demolished the original council house, common gaol and guildhall and, on the same site, had rebuilt “a proper council house and guildhall, of such size and construction”, and with such facilities, as were thought appropriate.784 However, in the intervening years, having transferred and committed convicted prisoners to the then county gaol at Fisherton Anger, and having found the situation perfectly satisfactory because “the said county gaol [was] very large and secure” and was in close proximity to the city’s boundary (accessed by a public bridge over the River Avon), the corporation decided to perpetuate the arrangement.785 The bishop was likewise content that debtors, and others against whom judgment was given by his courts of record of pleas, should be confined in the same gaol.

7. With the approval of the various quarter sessions sitting across the county, and aided by a gift of freehold land (abutting the county gaol to the north, the river to the east, and the Salisbury infirmary to the west) by the Earl of Radnor to the county justices “in order to make the said county gaol more commodious”, statutory power was sought (amongst other things) to vary the 1785 obligation relating to the city gaol.

8. To this end the 1800 Act provided authority for the following purposes (set out here in broad terms): (a) that “the clauses in the [1785] Act contained, requiring the Mayor and Commonalty of the said City of New Sarum to erect and build a gaol within the said city” be repealed;786

8. Whilst the new gaol was being built, the city justices and the justices for the Cathedral close would commit to the common gaol for the county. 783 The 1785 Act, s.6. 784 Preamble to 39 & 40 Geo.3 c.liii (1800) (“the 1800 Act”), being “An Act for Repealing so much of an Act, passed in the Twenty-fifth Year of the Reign of His Present Majesty, intituled, An Act for the Removal and rebuilding of the Council Chamber, Guildhall, and Gaol of the City of New Sarum, and for ascertaining the Tolls of the Market, and regulating the Chairmen within the said City, as requires the Mayor and Commonalty of the City of New Sarum to build a new Gaol within the said City, or the Suburbs or Precincts thereof; and for authorising the Commitment of Felons and other Persons within the Limits of the said City and the Close thereof, to the gaol of the County of Wilts; and for explaining and amending the said Act”. 785 The 1800 Act, preamble. 786 The 1800 Act, s.1. This provision did not identify exactly - by number - the sections (or clauses) in the 1785 Act which were to be repealed nor, on its face, did it repeal expressly the provisions relating to the city gaol other than those which required the construction of the replacement building. The 1800 Act was silent about decommissioning and demolition of the old gaol - which, by then, had happened - and about the transfer of prisoners and the consequential financial arrangements.Impliedly, it seems, these provisions were also repealed. The 1800 Act did make clear expressly, however, that its provisions were not to “prejudice, lessen, or defeat any right, estate, or interest” vested in the bishop (as lord of the manor of New Sarum), except those already affected by the 1785 Act: the 1800 Act, s.15.

232 (b) that the land at Fisherton Anger to be gifted by the Earl of Radnor for gaol-related use should be held in trust for that purpose by the high sheriff of the county;787

(c) that the ability of the city justices or the close justices788 to commit “felons or other prisoners” to the county gaol at Fisherton Anger (as if it were the city gaol) be legitimised on a permanent basis;789

(d) that the bishop, acting through his “proper officer”, be empowered to detain in custody in the county gaol “all debtors and other persons who shall be legally arrested or taken in execution” (by order of the courts of record of pleas) and who are liable to be committed to “any gaol or place of security”, as if the county gaol were located within the city;790

(e) that all city and close constables, sub-constables and peace officers, and all bishop’s court officers, be authorised to execute any justices’ or court order requiring the conveyance of prisoners to or from the county gaol as if it were the city gaol (and, in so doing, they should be immune from any legal action for acting outside their respective jurisdictions);791

(f) that the city and the close were to be responsible for paying for “the maintenance and support” of the prisoners committed by the relevant justices to the county gaol;792

(g) that the cost of maintaining the “felons and prisoners” committed by the justices for the close was to be paid from the poor rates levied on the inhabitants of the close;793

787 The 1800 Act, s.2. 788 Ie. the justices for the Cathedral close. These were the bishop, recorder and canons residentiary (see http://www.oldtowns.co.uk/Wiltshire/salisbury.htm). 789 The 1800 Act, s.3. Prisoners so committed were deemed to be imprisoned within the city limits: ibid., s.11. The county gaol keeper’s responsibilities were specifically extended to cover the receipt and detention of “the felons, debtors, or other persons” committed from Salisbury, and he was required to provide adequate security for the safe-keeping of those prisoners: ibid., ss.6, 8. 790 The 1800 Act, s.4. This applied to both the incumbent bishop and “his successors”: ibid. 791 The 1800 Act, s.5. The county sheriff was likewise exempted from liability for any prisoner escape: ibid., s.10. 792 The 1800 Act, s.7. 793 The 1800 Act, s.9.

233 (h) that any future costs incurred by the county justices (acting through their general quarter sessions) in enlarging cells in the county gaol, or in building new cells, would be shared between the county and the city corporation on a 90%: 10% basis;794

(i) that the office of bishop’s clerk (or prothonotary of the bishop’s court of record of pleas) in Salisbury, and that of clerk of the peace for the city, be made separate and distinct, and that the office-holders should in future be appointed by the bishop, and by the mayor and commonalty, respectively;795 and

(j) that any legal proceedings arising from, or under, the 1800 Act be both jurisdiction and time-limited.796

Status of the 1800 Act 9. The principal purpose of the 1800 Act was to modify the statutory arrangements previously enacted in 1785. The 1785 Act797 had envisaged (in part) the construction of a new city gaol for the city of Salisbury, and it had made provision for both the demolition and rebuilding processes.

10. The remainder of the 1785 Act contained town improvement provisions unrelated, or only distantly related, to the gaol project. It dealt with (in broad terms): (a) rebuilding the existing council house and guildhall;798

(b) mechanisms for effecting land acquisition;799

(c) the ability to raise moneys for the various projects by mortgaging or assigning “all or any of the said tolls, fees and perquisites arising or to arise from the fairs and markets within the said city”;800

794 The 1800 Act, s.12. The mayor and commonalty of the city were required to pay their share within 3 months of receiving a full account and breakdown of the expenditure incurred. 795 The 1800 Act, s.13. Each office would carry with it its own ”fees, perquisites, rights, and advantages”. In the case of the bishop’s clerk, that would exclude “the tolls, fees, and perquisites of the fairs and markets within the said city”, which would remain with the city corporation: ibid. The offices would only be held whilst the incumbents were of good behaviour. 796 The 1800 Act, s.14. Proceedings had to be brought within six months and commenced within “the county of Wilts and not elsewhere”: ibid. 797 The 1785 Act comprised a long title, a preamble and 22 sections. 798 The 1785 Act, preamble and ss.1, 3-5. 799 The 1785 Act, ss.9-11. 800 The 1785 Act, s.12.

234 (d) the ability of the mayor and city justices to designate sites in the city for livestock and produce markets, to make orders regulating the conduct of fairs and markets, to fix times for the setting-up and dismantling of stalls and for the sale of goods, and to levy tolls on the sale of livestock;801

(e) the licensing by the mayor and justices of “hackney chairmen” operating within the city (and requiring the numbering or lettering of each licensed hackney chair), and the regulating of chairmen, the fares charged, and the use of “the publick stand”;802 and

(f) various ancillary arrangements for the enforcement of court orders, the handling of appeals by persons aggrieved by steps taken under the 1785 Act, the laying down of time limits for legal proceedings, and the saving of rights vested in the bishop of New Sarum (as lord of the manor) and in the then bishop’s clerk (who was also clerk of the market).803

11. Part of the 1785 Act (dealing with town improvements) is still in force.804 The 1800 Act purported to repeal the provisions in the 1785 Act which dealt with building a city gaol, but failed to specify exactly which sections - or parts of sections - were to be repealed or modified.

12. This repeal note relates only to the 1800 Act. It does not recommend repeal now of the 1785 Act, either in whole or in part, because: (a) the 1785 Act is a composite Act, dealing with town improvement issues as well as those relating to the gaol;

(b) town improvement issues fall outside the remit of the present repeal review which is confined to county and town gaols; and

801 The 1785 Act, ss.13, 14. 802 The 1785 Act, s.15. The expression “hackney chairmen” was not defined in the 1785 Act, but appears from its context to mean the operators of hackney chairs (being persons licensed to provide sedan chairs, or similar means of public transportation, for hire). 803 The 1785 Act, ss.16-21. 804 The Chronological Table of the Statutes shows the 1785 Act as being in force (and of limited geographic application), but not the extent of its effectiveness.The entry does not mention the partial repeal by the 1800 Act.

235 (c) it is not possible to identify precisely the sections in the 1785 Act which have been repealed and those which remain to be repealed.

13. On the other hand, the whole of the 1800 Act has become spent, and may now be repealed.

14. The historic evidence set out below shows that the county gaol, located at Fisherton Anger, was decommissioned in 1870.

15. The ecclesiastical courts of record of pleas (being a category of inferior courts with local jurisdiction), and the secular office of clerk of the peace - each referred to in the 1800 Act805 - have both been abolished. The inferior courts were abolished as obsolete by the Ecclesiastical Jurisdiction Measure 1963806, and clerks of the peace by the Courts Act 1971.807 The Salisbury Bishop’s Court (classed as a borough civil court) was specifically abolished by the Local Government Act 1972.808

Archive-based history 16. The 1800 Act, in its preamble, records that the Salisbury city gaol (along with the original council house and guildhall) had been demolished between 1785 and 1800.

17. A county gaol had first been built at Fisherton Anger (on the outskirts of Salisbury) by 1578. The final structure (gaol and bridewell) was built between 1818 and 1822.809 Existence of the gaol was recorded in 1837 in the Prison Report of that year,810 and in 1847 in the Report of Inspectors of Prisons.811 It was closed in February 1870 (when all the prisoners had been transferred to Devizes New Prison).812

805 See the 1800 Act, s.13 and para. 8(i) above. 806 (1963 No. 1), s.82(2). Section 82(2)(a) of the 1963 Measure speaks of abolition of “the courts of audience”, but the Measure fails to define the term. The expression appears to embrace the provincial ecclesiastical courts, and includes the inferior courts of record. The office of prothonotary of the court of record of pleas was repealed by the Superior Courts (Officers) Act 1837 (itself now repealed). 807 s.44(1)(a). 808 s.221 and sch 28. 809 See Old Towns: Salisbury in 1841 at http://www.oldtowns.co.uk/Wiltshire/salisbury.htm; and E. Kite Book 5: Wiltshire Notes and Queries, Vol. 5, chap. 4, p. 137 dealing with the Fisherton gaol. 810 Part III ‘Southern and Western District’, pp. 004-008 showing “Wiltshire - Salisbury Fisherton Anger County Gaol”. 811 12th Report of Inspectors of Prisons - Southern and Western District: Wiltshire (1847/48, vol. 35). The county gaol was linked at this time with the county house of correction. 812 See Wiltshire Quarter Sessions minute book for Easter Term 1870 (Wiltshire & Swindon Record Office ref. A1/150/27). In October 1867 one West Awdrey wrote to Henry Fox Talbot of the proposal to close the county gaol at Fisherton (and the Salisbury assize), notwithstanding “a very strong feeling on

236 18. Part of the gaol building was demolished in 1875813, but the central block remained in use as a private residence (and later as an army HQ) known as Radnor House. It was finally demolished in 1959 to make way for a city ring road.814

19. Today, the former village of Fisherton Anger lies with the city limits of Salisbury, situated on the west side of the river Avon.

20. Only one prison now operates (under the aegis of HM Prison Service) in Wiltshire, at Devizes: HMP Erlestoke.

Extent 21. The 1800 Act applies locally only within the county of Wiltshire, in England.

Consultation 22. The Home Office, HM Prison Service, Wiltshire County Council and Salisbury District Council have been consulted about this repeal proposal.

(32-195-452) LAW/005/002/06 01 February 2008

the part of South Wilts against” the potential loss: see http://www.foxtalbot.arts.gla.ac.uk/corresp/09261.asp?target=360. 813 By 1891 the Wiltshire Census Street Index appears to show houses built on the site of the “old gaol ground” in Fisherton Anger: see http://www.mycensuses.com/1891Wiltshire.htm 814 Radnor House was leased by the War Office from 1901 (and purchased in 1922) for use until 1957 as headquarters for the Army Southern Command. See generally The Victoria History for the Counties of England: Wiltshire, vol. 5 p. 42, and Ruth Newman & Jane Howells Salisbury Past (2001).

237 PART 3

CRIMINAL LAW

______

Reference Extent of repeal or revocation ______

Disorderly Houses Act 1751 The whole Act. (25 Geo.2 c.36)

London County Council (General In section 3(1), the definition Powers) Act 1959 (7 & 8 Eliz.2 c.lii) “the Act of 1751”.

Magistrates’ Courts Act 1980 (c.43) In Schedule 1, paragraph 2.

Licensing Act 2003 (c.17) In Schedule 6, paragraph 2. ______

Disorderly Houses Act 1751 1. According to its long title, the purpose of the Disorderly Houses Act 1751 (“the 1751 Act”) was “for the better preventing Thefts and Robberies, and for regulating Places of publick Entertainment, and punishing Persons keeping disorderly Houses”.

2. The 1751 Act represented an attempt by Government to regulate places of public entertainment. These were perceived to be a major cause of theft and robbery because they encouraged people to fritter away their earnings to the point that they had to resort to theft in order to survive. Accordingly section 2 of the 1751 Act required that any premises in or within 20 miles of London kept for the purposes of public dancing, music or other similar public entertainment must be licensed by the magistrates. Any such premises that operated without a licence were deemed to be a ‘disorderly house’.

3. The whole of the 1751 Act, including section 2, has now been repealed with the exception of section 81. Section 8 provides as follows-

“And whereas, by reason of the many subtle and crafty contrivances of persons keeping bawdy-houses, or other disorderly houses2, it is difficult to prove who is the real owner or keeper thereof, by which means many notorious offenders have escaped punishment: Be it enacted by the authority aforesaid, that any person who

1 Sections 1, 9, 11, 12 and 15 were repealed by the Statute Law Revision Act 1867; sections 2 to 4 by the London Government Act 1963, s.93(1), Sch.18, Pt.2; sections 5 to 7 by the Administration of Justice Act 1965, s.34(1), Sch.2; section 10 by the Courts Act 1971, s.56(4), Sch.11, Pt.4; sections 13 and 14 by the Statute Law Revision Act 1966. 2 As originally enacted, section 8 referred to “bawdy-houses, gaming-houses, or other disorderly houses”. The reference to gaming houses was repealed by the Betting and Gaming Act 1960, s.15, Sch.6, Pt.1.

238 shall at any time hereafter appear, act or behave him or herself as master or mistress, or as the person having the care, government, or management of any bawdy-house, or other disorderly house, shall be deemed and taken to be the keeper thereof, and shall be liable to be prosecuted and punished as such, notwithstanding he or she shall not in fact be the real owner or keeper thereof.”.

4. In other words anyone who appears to be in charge of- (a) any bawdy house; or (b) any disorderly house,

is deemed to be its keeper and is liable to be punished as such.

5. A “bawdy house” is a brothel and there is no material distinction to be made between these two terms3. The modern law prohibits the keeping of brothels: see paragraph 9 below.

6. A “disorderly house” is more difficult to define. Keeping a disorderly house is an indictable common law offence, punishable by a fine and/or imprisonment at the discretion of the court4. The nature of a disorderly house was considered in Moores v Director of Public Prosecutions5 in 1991:

“[I]t appears to me that the mischief at which the common law offence is aimed is the mischief of keeping a house to which members of the public resort for purposes of the disorderly recreation, if one can so describe it, which is available there, whether it takes the form of indecency or illicit pugilism or cock fighting or whatever. The essence of the mischief is the continuity which exists where the use of premises for a given unlawful purpose becomes notorious”6.

7. This note does not propose abolishing the common law offence of keeping a disorderly house. Rather the proposal is the repeal of section 8 of the 1751 Act whereby anyone in charge of a disorderly house (or a bawdy house) is deemed to be its keeper.

8. The reason for repealing section 8 is that it is now unnecessary to deem anyone who is apparently in charge of a bawdy house/disorderly house to be the keeper of that house. This is because the modern criminal law creates offences wide enough to catch the persons running or managing the premises in which the offending activity takes place.

3 Singleton v Ellison [1895] 1 QB 607. 4 Indictable offences at common law not subject to any special punishment are punishable by fine and imprisonment at the court’s discretion: R v Castro (1880) 5 QBD 490 at 509. 5 [1991] 4 All ER 521. 6 Ibid at p.525, per Bingham LJ.

239 Bawdy houses/brothels 9. The Sexual Offences Act 1956 makes it an offence- ♦ for a person to keep, manage or act/assist in the management of a brothel (section 33); ♦ for a person to keep, manage, or act/assist in the management of a brothel to which people resort for practices involving prostitution (section 33A)7; ♦ for the landlord of any premises knowingly to let the premises for use as a brothel (section 34); ♦ for the tenant or occupier or person in charge of any premises knowingly to permit their use as a brothel (section 35(1)); ♦ for the tenant or occupier of any premises knowingly to permit their use for the purposes of habitual prostitution (section 36).

10. These offences (other than section 33A) attract maximum penalties ranging from 3 months’ imprisonment and/or a fine not exceeding level 3 on the standard scale (£1000) for a first offence to six months’ imprisonment and/or a fine not exceeding level 4 on the standard scale (£2500) for subsequent offences8. In the case of an offence under section 33A, the maximum penalty is 6 months’ imprisonment and/or the statutory maximum fine (£5000)9 upon summary conviction, and 7 years’ imprisonment upon conviction on indictment10. The maximum penalty upon summary conviction under section 8 of the 1751 Act is identical to the maximum penalty under section 33A11. The penalty upon conviction on indictment under section 8 is a fine and imprisonment at the discretion of the court12.

11. Accordingly section 8 is unnecessary so far as it applies to bawdy houses or brothels. Anyone conducting themselves as being in charge of such premises is liable to prosecution under the appropriate provision of the Sexual Offences Act 1956 as set out above. The prosecuting authorities have no need to rely on section 8 so as to deem the offender to be a keeper of the premises. Indeed there are no reported cases indicating that section 8 has ever been used for this purpose.

7 Section 33A was inserted by Sexual Offences Act 2003, s.55(2). 8 The 1956 Act, s.37, Sch.2. 9 By virtue of Schedule 1 to the Interpretation Act 1978, ‘statutory maximum’, with reference to a fine or penalty on summary conviction for an offence in England and Wales, means the prescribed sum within the meaning of section 32 of the Magistrates’ Courts Act 1980. Section 32(9) of the 1980 Act defines the prescribed sum as £5000 or such sum as is for the time being substituted by an order in force under section 143(1) of the 1980 Act. 10 The 1956 Act, s.37, Sch.2. 11 By virtue of Magistrates’ Courts Act 1980, s.32(1), Sch.1. 12 Section 8 imposes the same punishment as if the defendant were being punished for the common law offence of being the real keeper of a bawdy house or disorderly house. An indictable offence at common law not subject to any special punishment is punishable by fine and imprisonment at the discretion of the court: R v Castro (1880) 5 QBD 490 at 509.

240 Disorderly houses 12. The same is true of disorderly houses. Although there are a small number of reported cases of persons being charged with keeping a disorderly house13, none have invoked section 8 of the 1751 Act for the purpose of deeming anyone to be a keeper of the relevant premises.

13. Moreover the development of the criminal law since the mid-eighteenth century has provided prosecuting authorities with a considerable armoury of specific statutory offences directed at the sort of disorderly recreation that the 1751 Act was keen to prohibit. In other words, not only is section 8 of the 1751 Act now unnecessary as a means of invoking the common law offence of keeping a disorderly house, that offence is likely to be wholly superfluous in relation to controlling a wide range of illicit activities. For example- ♦ unlawful gaming: An offence under Part 1 of the Gaming Act 1968 (which includes gaming on unlicensed premises) is committed by every person concerned in the organisation or management of the unlawful gaming and by anyone who allows premises to be used for such gaming14; ♦ unlicensed drinking and entertainment: A person commits an offence under the Licensing Act 2003 (“the 2003 Act”) if he either carries on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or else knowingly allows a licensable activity to be so carried on15. Licensable activities include the sale of alcohol and the provision of audience entertainment such as indoor sporting events, boxing, wrestling and the performance of live music and dance16. Where premises are licensed under the 2003 Act17 a person who works at the premises in a capacity which authorises him to prevent disorderly conduct commits an offence if he knowingly allows such conduct to take place on the premises18;

13 Moores v DPP [1991] 4 All ER 521; R v Tan [1983] QB 1053; R v Quinn [1962] 2 QB 245. 14 Gaming Act 1968, s.8(1) and (3). The penalty on summary conviction is a fine not exceeding the prescribed sum (currently £5000). For conviction on indictment the penalty is a fine and/or imprisonment for a term not exceeding 2 years: Gaming Act 1968, s.8(4). 15 Licensing Act 2003, s.136(1). The maximum penalty upon summary conviction is a term of imprisonment not exceeding 6 months and/or a fine not exceeding £20,000: the 2003 Act, s.136(4). 16 The 2003 Act, s.1(1), Sch.1. 17 The 1751 Act does not apply to ‘relevant premises’ within the meaning of section 159 of the 2003 Act: the 2003 Act, s.198(1), Sch.6, para.2. 18 The 2003 Act, s.140. The maximum penalty is a fine not exceeding level 3 on the standard scale (current £1000).

241 ♦ indecent displays: A person commits an offence under the Indecent Displays (Control) Act 198119 if he makes, causes or permits a display of any indecent matter20; ♦ cock-fighting etc: An offence under section 47 of the Metropolitan Police Act 1839 is committed by every person who, within the metropolitan police district21, keeps or uses or acts in the management of any house, room, pit or other place for the purpose of fighting or baiting lions, bears, badgers, cocks, dogs or other animals22.

Conclusion 14. Since section 8 is no longer necessary to deem anyone to be a keeper of a bawdy house or a disorderly house, the whole provision has become unnecessary and may be repealed. Consequential repeals are- ♦ the definition of the 1751 Act in section 3(1) of the London County Council (General Powers) Act 1959; ♦ paragraph 2 of Schedule 1 to the Magistrates’ Courts Act 1980 (which lists offences under section 8 as being offences that are triable either way) ♦ paragraph 2 of Schedule 6 to the Licensing Act 2003 (which disapplies the 1751 Act from the definition of ‘relevant premises’ within the meaning of section 159 of the 2003 Act).

There being no other surviving provisions, the 1751 Act may now be repealed as a whole.

Extent 15. The 1751 Act extends only to England and Wales.

Consultation 16. The Home Office, the Crown Prosecution Service and the relevant authorities in Wales have been consulted about this repeal proposal. 32-195-449 01 February 2008

19 The 1981 Act, section 1(1). 20 In England and Wales, the penalty on summary conviction is a fine not exceeding the statutory maximum (currently £5000). For conviction on indictment the penalty is a fine and/or imprisonment for a term not exceeding 2 years: the 1981 Act, s.4(1). 21 The Town Police Clauses Act 1847, s.36 contains an analogous prohibition for extension throughout England and Northern Ireland. 22 The maximum penalty is a fine not exceeding level 4 on the standard scale (£2500) or a term of one month’s imprisonment.

242 Reference Extent of repeal or revocation ______

Servants’ Characters Act 1792 The whole Act. (32 Geo.3 c.56)

Statute Law (Repeals) Act 1993 In Schedule 2, in Part 1, (c.50) paragraph 1.

______

Servants’ Characters Act 1792

1. The purposes of the Servants’ Characters Act 1792 (“the 1792 Act”) were set out in the preamble to the Act as follows-

“Whereas many false and counterfeit Characters of Servants have either been given personally or in Writing, by evil-disposed Persons being, or pretending to be, the Master, Mistress, Retainer, or Superintendent of such Servants, or by Persons who have actually retained such Servants in their respective Service, contrary to Truth and Justice, and to the Peace and Security of his Majesty’s Subjects: And whereas the Evil herein complained of is not only difficult to be guarded against, but is also of great Magnitude, and continually increasing, and no sufficient Remedy has hitherto been applied:…”23

2. The 1792 Act sought to address the perceived evils of false character references. At a time when many households engaged servants to perform domestic duties, the oral or written character reference that assured the prospective employing master or mistress of the reliability, competence and trustworthiness of the prospective domestic servant would be an integral part of the engagement process.

3. The origins of the 1792 Act lay in a petition to Parliament by several householders in the Cities of London and Westminster who had taken servants into their households on the strength of false references. One of the petitioners, Dr Richard Brocklesby, complained that his house had been robbed, apparently as a result of knowledge acquired by one such servant whom he had employed on the strength of a false reference. The petition was referred to a Commons’ Committee and the report of that Committee led to the passing of the 1792 Act. An extract from the Committee’s report is in the Annex to this note.

23 The preamble was repealed by the Statute Law Revision Act 1948, s.3.

243 4. Sections 1 to 5 of the 1792 Act created the following offences24- ♦ falsely impersonating any master or mistress and giving a false character reference to a person offering himself or herself as a servant (section 1); ♦ pretending or falsely asserting in writing that any servant has been hired or retained by them for any period of time or in any capacity other than that for which the servant was hired by them (section 2); ♦ pretending or falsely asserting in writing either that a servant had left their service on a particular date or else had never been employed in any previous service (section 3); ♦ a prospective servant either falsely asserting or pretending to have served in a particular service or else offering a false certificate of their character (section 4); ♦ falsely pretending not to have been hired or retained previously as a servant (section 5).

5. Thus sections 1 to 3 penalised the conduct of employers (and of persons impersonating employers) whilst sections 4 and 5 penalised the conduct of the servants themselves.

6. The only other provision in the 1792 Act that remains in force25 is section 8 which absolves servants from any liability under the Act if they inform on their collaborators with the result that the collaborators are convicted.

7. It seems clear that the 1792 Act no longer serves any useful purpose. In the two centuries during which it has been in force there has been only one reported case on it26. It appears that no prosecutions been brought under it in modern times.

8. The reasons for the 1792 Act falling into disuse are partly social (with the concept of domestic service having largely disappeared) and partly because of changes in the law over the past 200 years. The modern law governing the provision of employee character references tends to involve the civil law rather than criminal law, with damages being payable by way of compensation for inaccurate or misleading references.27 However the

24 The penalty in each case on summary conviction is a fine not exceeding level 2 on the standard scale (currently £500). 25 Section 6 was repealed by the Statute Law (Repeals) Act 1993, s.1(1), Sch.1, Pt.1; section 7 was repealed by the Statute Law Revision Act 1871; section 9 was repealed by the Summary Jurisdiction Act 1884, s.4, Sch; and section 10 was repealed by the Courts Act 1971, s.56(4), Sch.11, Pt.4. 26 R v Costello and Bishop [1910] 1 KB 28 (which concerned the liability of an employer for giving a false reference). 27 In the leading case of Hedley Byrne v. Heller & Partners Ltd [1964] AC 465 (a case where the plaintiff was suing for losses sustained having relied on a misleading reference given by a bank) it was held that the law

244 general criminal law is sufficient to penalise anyone who provides or makes use of false references to obtain employment28. Moreover, where a reference is given fraudulently an employer giving such a reference may be liable to the recipient for the tort of deceit29.

9. Accordingly it is proposed that the remains of the 1792 Act should be repealed on the basis that they are no longer of practical utility. This will permit a consequential repeal of text in the Statute Law (Repeals) Act 1993 (which amended the 1792 Act).

Extent 10. The 1792 Act extends only to England and Wales30.

Consultation 11. The Home Office, the Crown Prosecution Service, the Department for Business, Enterprise and Regulatory Reform, the Department for Work and Pensions, the CBI, Unison and the relevant authorities in Wales have been consulted about these repeal proposals.

32-195-449 01 February 2008

implies a duty of care when a party seeking information of another party trusts him to exercise due care and that other party knew or should have known that reliance was being placed on him. 28 Section 16(1) of the Theft Act 1968 provides that anyone who by any deception dishonestly obtains for himself or for another any pecuniary advantage shall on conviction on indictment be liable to imprisonment for a term not exceeding 5 years. A person obtains a pecuniary advantage if he is given the opportunity to earn remuneration or greater remuneration in an office or employment: the 1968 Act, s.16(2)(c). 29 Foster v Charles (1830) 6 Bing 396; 7 Bing 105; Wilkin v Reed (1854) 15 CB 192. 30 The 1792 Act was repealed as to Scotland by the Statute Law (Repeals) Act 1993, s.1(1), Sch.1, Pt 1.

245 ANNEX

Extract from the report of a Commons Committee concerning a petition of several householders within the Cities of London and Westminster

“Sir Adam Ferguson reported from the Committee, to whom the Petition of several Householders within the Cities of London and Westminster, for themselves and others, was referred; That the Committee had examined the Matter of the said Petition, and had directed him to report the same, as it appeared to them, to the House; and he read the Report in his Place; and afterwards delivered it in at the Clerk’s Table: Where the same read; and is as followeth; viz.

To prove the Allegations of the said Petition, Doctor Richard Brocklesby gave the Committee the following Information: That within these Three Years, being in Want of a Servant, he advertised; upon which a proper Servant, seemingly, offered, and referred him to the Master of a House in Chappel Street, May Fair, where there was every Appearance of Credit and Character: The pretended Master gave the Man an excellent Character, and the Witness hired him: That having served him a little more than a Month, he told the Doctor that his Service would not suit him; whereupon he was discharged the same Night⎯he had also persuaded Three other Servants to quit the Service of the Doctor at the same Time⎯That, within a few Days after the Servants left him, his House was robbed, and Plate, which cost nearly £200, was taken from a Chest where it was usually kept, and which was in a Room on the Ground Floor, behind his Study⎯the Robbers did not appear to have gone to any other Part of the House. Early in the Morning, it was perceived that One of the Windows in the Drawing Room, where there are Pictures (and which Room is not commonly used) was open, and supposed to have been left so before the Servants left the House; for by this Window the Robbers appeared to have entered, from a Foot Mark found on the Lamp Iron, and on the Ledge of the Window, the Shutter of which is usually secured by an Iron Bar across it, but on which no Mark of Force appeared.

The Witness further said, That he procured a Warrant, and had all the Servants before a Magistrate, but nothing could be made out against them, although their Lodgings were searched⎯That, on the Examination of the Man Servant above mentioned, he owned before the Magistrate that he had paid a Guinea to the Keeper of the House in May Fair for a Character, and was to give him in Proportion to the Time of his Stay in the Doctor’s Service⎯That the Magistrate sent to the House in May Fair, and it was found that the pretended Housekeeper had decamped a Fortnight before; and on Investigation of his Character, he appeared to have been on the Suspicious Books at Bow Street.

John Free, Esquire, being next examined, informed your Committee, That about Two Months since, being in Want of a Coachman, he was much pleased with the Appearance of a Man who offered himself to him in that Capacity, particularly so when he told him he had lived in his last Place Three Years and a Half; that he had left it about a Month, and that his Reason for so doing, was on Account of his Master’s having put down his Carriage on some Family Misfortunes⎯He told him his Master’s Name was Pointer, that he lived in Suffolk, but came to London about this Time of the Year for Three or Four Months, and was then at his usual Place of Residence when in Town, at Doctor Palin’s, No.48, Great Russell Street, Bloomsbury⎯The next Morning, on being told by the Coachman that his Master would be in the Way, the Witness called on Mr Pointer, who confirmed all the Coachman had said, and gave him so good a Character, that the Witness almost suspected the Truth of what he said; however, the Appearance of the House, and a Servant in Livery, soon did away his Suspicions, and he hired the Coachman⎯That, about a Week afterwards, having some Company, a Friend of his directly knew him, from his having lived with his Father about a

246 Twelvemonth past⎯this rather alarmed him, and, from some Words that dropped from his Friend, he began to fear he had received a false Character of his Servant⎯That the witness interrogated the Servant, and on his not giving a satisfactory Account of himself, ordered him to take off his Livery, and quit his House⎯That, after paying him his Wages, he again interrogated him, and brought him to confess, that Pointer was a Man notoriously in the Habit of giving false Characters to Servants out of Place, and that for what he had said of him he had paid him One Guinea⎯He said, a Fellow-servant who had been successful in getting into a Family by this Man’s Means, had advised him to adopt this Method⎯That the Witness called at Doctor Palin’s this Morning, and found the Impostor was gone; but from his Landlord’s Account, be understood that he had hired his Lodgings for a few Weeks, passing himself off for a Man of Property in Gloucestershire, but that he had been discovered by some Person in the Neighbourhood, and had left his House⎯The Witness was also informed that he went by the Names of Punter, Pointer, and Prichard; by the latter Name he has endeavoured to find him out, particularly at a Place that he often frequents, the Orange Tree, in Orange Street, Bloomsbury, a Rendezvous for Servants out of Place.

The Witness further said, That this Man has carried on the Trade a long Time, hiring Lodgings at different Times in reputable Situations, and passing himself for a Country Gentleman, come to Town for a short Time⎯And he added, That a Friend of his had made Application to Sir Sampson Wright, who informed him that the Person above mentioned was well known at the Public Office, but advised him to let the Matter drop, as nothing could be done towards punishing him”.31

31 House of Commons Journal 1791, Vol.46, pages 471-472 (10 May 1791).

247 Reference Extent of repeal or revocation ______

Unlawful Drilling Act 1819 The whole Act (except as it (60 Geo.3 & 1 Geo.4 c.1) extends to Northern Ireland).

Statute Law (Repeals) Act In Schedule 2, paragraph 1(a) and 1995 (c.44) the words “Great Britain and” in paragraph 1(c). ______

Unlawful Drilling Act 1819

Summary 1. The Unlawful Drilling Act 1819 (“the 1819 Act”) was put onto the statute book as a swift reaction to the Peterloo Massacre in Manchester that year. The 1819 Act has long ceased to serve any useful purpose – indeed there appear to have been no successful prosecutions brought under its powers – and it has been rendered obsolete by subsequent legislation concerning public order and firearms. Its wholesale repeal is now recommended.

Historical background 2. In 1819 the Manchester Patriotic Society was constituted to press for Parliamentary reform. Its membership comprised leading radicals of the area. The Society invited Henry Hunt and Richard Carlisle to speak at a public open-air meeting at St Peter’s Field, Manchester on 16 August 1819.

3. On the day of the meeting the local magistrates were concerned that a substantial gathering of reformers might end in a riot. The organisers had drilled large numbers of men who marched to St Peter’s Field. Some 50,000 to 60,000 people assembled, carrying banners with revolutionary inscriptions. Although the assembly was peaceful the magistrates, who had brought in special constables and detachments of the Lancashire and Cheshire Yeomanry, lost their nerve and ordered the arrest of Henry Hunt and the other leaders of the demonstration. The soldiers who tried to reach Hunt were pressed by the mob and drew their sabres. A troop of hussars came to their rescue and caused a general panic, in which 11 people were killed and about 400 wounded.

4. These events in Manchester were the last straw for a Government beset by fears of conspiracy and civil unrest following the end of the Napoleonic Wars. Although 1815 marked the changeover from war to peace, England was experiencing a period of social and economic unrest. The cessation in demand for munitions at home and abroad, the decline in foreign trade occasioned partly by the poverty of countries ruined by war and partly by

248 hostile tariffs, widespread unemployment aggravated by the discharge of soldiers and sailors, and a lowering of wages to starvation levels all contributed to this unrest. Epidemics of rioting were breaking out across the country. In 1815 there were riots in Nottingham and Newcastle-on-Tyne. In 1815-16 there were agricultural riots in the eastern counties. Machine-breaking societies were establishing themselves in Leicester and Nottingham. At the same time came a revival of radical agitation demanding, in particular, Parliamentary reform. In London, two large demonstrations were organised in Spa Fields in 1816, the second of which resulted in rioting and in looting of gunshops.

5. Against this background the Government was convinced that the events in Manchester provided further evidence that there was an organised and widespread conspiracy to subvert the law and the existing institutions of the country. The Cabinet decided that the law about public meetings must be cleared up and that legislation must be introduced to prevent any revolutionary outbreak. Six Bills were introduced into Parliament including the Bill (then known as the Training Prevention Bill) that resulted in the 1819 Act32.

6. The purpose of the 1819 Act was to fill what the Government regarded as a loophole in the criminal law. As the law stood before 1819, meetings or assemblies at which drilling or military training took place were not illegal unless a criminal intent could be proved or a breach of the peace occurred.

7. Section 1 is the principal provision in the 1819 Act. It is set out in full in the Annex to this note, but may be summarised as follows- (a) all unauthorised meetings and assemblies of persons for the purpose of training or drilling in the use of arms or for practising military exercises are prohibited.

(b) Anyone present at any such meeting for the purpose of training or drilling other persons in the use of arms or the practice of military exercises is liable upon conviction to a maximum of 7 years imprisonment.

32 The other five Bills had the following purposes- (1) to increase the powers of magistrates to issue warrants for the search of arms: 60 Geo.3 & 1 Geo.4 c.2 (repealed by Statute Law Revision Act 1873); (2) to prevent procedural delays in prosecutions for misdemeanours: 60 Geo.3 & 1 Geo.4 c.4 (repealed by Administration of Justice (Miscellaneous Provisions) Act 1938; Judicature (Northern Ireland) Act 1978); (3) to strengthen the law against seditious assemblies: 60 Geo.3 & 1 Geo.4 c.6 (repealed by Statute Law Revision Act 1873); (4) to permit the seizure of literature containing blasphemous or libellous material: 60 Geo.3 & 1 Geo.4 c.8 and (5) to extend stamp duties to all papers and periodical pamphlets of a certain size: 60 Geo.3 & 1 Geo.4 c.9 (repealed by Newspapers, Printers and Reading Rooms Repeal Act 1869).

249 (c) Anyone (whether or not present at such meeting) who trains other persons in the use of arms or the practice of military exercises or who aids or assists therein is similarly liable upon conviction to a maximum of 7 years imprisonment.

(d) Anyone present at any such meeting for the purpose of being so trained or drilled faces a maximum of two years imprisonment.

8. Despite the urgency with which the 1819 Act was brought onto the statute book (11 December 1819) after the Peterloo Massacre (16 August 1819), little use seems to have been made of it. The two cases usually cited in connection with it provide no assistance. The case of R v Hunt in 182033 arose out of Peterloo and indeed involved one of the main speakers at the event. However the indictments were common law offences (notably unlawful assembly) and were not brought under the 1819 Act. Similarly the case of Redford v Birley in 182234, which also arose out of Peterloo, made no mention of the 1819 Act. This case concerned proceedings for assault allegedly committed by the yeomanary in quelling the disturbance. The proceedings were dismissed. The 1848 case of R v Hunt35 concerned procedural objections to indictments brought under the 1819 Act following an assembly in the county of York. The outcome of the case is not known. Finally in the 1849 Irish case of Gogarty v R36 the defendant was indicted and convicted of illegal training and drilling in Dublin contrary to the 1819 Act. However, Counsel for the defendant argued successfully that the indictments were flawed in that they failed to mention all the material ingredients of the offence as constituted by the 1819 Act and deviated from the precise language of the statute. The conviction was accordingly quashed. There are no other reported cases in which any proceedings have been taken under the 1819 Act.

Modern public order law 9. Changes in public order law over the past 70 years have effectively rendered the 1819 Act unnecessary. This is partly because the substantive criminal law has evolved to deal with a wide variety of public order issues, including crowd control and the management of demonstrations. But in addition changes in the way that the criminal law is enforced means that it is now the police rather than magistrates that are responsible for maintaining public order.

33 3 B & Ald.566. 34 3 Stark 76 (171 ER 773). 35 (1848) 3 Cox CC 215.

250 Public Order Act 1936 10. The Public Order Act 1936 (“the 1936 Act”) was prompted by increasingly severe public disturbances both in London and in a number of provincial towns. These disturbances had resulted partly from a series of ‘Marches of the Unemployed’ in the early 1930s but particularly from clashes between the Uniformed British Union of Fascists (led by Oswald Mosley and organised on quasi-military lines) and a number of less well-organised Communist groups. Moreover anti-Semitic attacks were occurring not only in London but also in cities like Leeds and Manchester.

11. In a Cabinet paper entitled ‘Preservation of Public Order’ in July 1934, the Home Secretary defined the ‘main mischief’ requiring legislation as being ‘the organisation of bodies of men who are drilled or trained to act in concert under the orders of officers, and to enforce their purposes by methods of violence or intimidation’. A subsequent Cabinet Committee concluded that new legislation was needed to deal with the following issues- ♦ the wearing of uniforms signifying association with any political organisation or with the furthering of any political object ♦ associations where the members were either trained in exercises of a military character or organised on military lines for furthering a political object or usurping the function of the armed forces or the police ♦ the power of the police to regulate processions and impose restrictions on public meetings.

12. It is clear from the Cabinet discussions leading up to the 1936 Act that the 1819 Act was not thought to address any of these issues. The relevant Cabinet Committee minutes record as follows:

“The Solicitor-General referred to the Unlawful Drilling Act of 1819 and pointed out that recourse to the provisions of this act had only been made on a few occasions and then only within two or three years of its passing into law”.

“The Home Secretary saw great objection to the proceedings being taken under this Act and thought that it must be assumed that new legislation would have to be passed”37.

36 (1849) 3 Cox CC 306 (Ir.). 37 Minutes of the First Meeting of the Cabinet Committee on the Preservation of Public Order, 16 October 1936, p.5.

251 13. The 1936 Act contains two specific prohibitions. The first is in section 1 and prohibits the wearing in any public place or meeting of uniform signifying a person’s association with any political organisation or with the promotion of any political object38.

14. The second prohibition in the 1936 Act is in section 2. This provides that if the members or adherents of any association of persons (whether or not incorporated) are- (a) organised, trained or equipped for the purpose of enabling them to be employed in usurping the functions of the police or of the armed forces; or

(b) organised and trained or organised and equipped either-

(i) for the purpose of enabling them to be employed for the use or display of physical force in promoting any political object; or

(ii) in such manner as to arouse reasonable apprehension that they are organised and either trained or equipped for that purpose,

then anyone who takes part in the control or management of the association (or in so organising or training as aforesaid any such members or adherents) commits an offence. The penalty on summary conviction is a term of imprisonment not exceeding six months or the prescribed sum (£5000) or both, and on indictment a term not exceeding two years or an unlimited fine or both.

15. Section 2 therefore is targeting the organisers of demonstrations and meetings rather than those people who attend them (as is the approach of the 1819 Act).

16. Prosecutions under sections 1 and 2 require the consent of the Attorney General.

Public Order Act 1986 17. The Public Order Act 1986 (“the 1986 Act”) established a new code for controlling processions and assemblies. It also abolished the common law offences of riot, rout, unlawful assembly and affray.

38 A proviso to section 1 permits the wearing of such uniform in limited circumstances.

252 18. Part 2 of the 1986 Act concerns processions and assemblies. Section 12 empowers the police to impose conditions on public processions and section 13 empowers the police to take steps to prohibit them altogether in certain circumstances.

19. Especially relevant in the context of the 1819 Act is section 14 of the 1986 Act, which empowers the police to impose conditions on public assemblies39. The power arises if a senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that- (a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act which they have a right not to do.

20. In these circumstances section 14 empowers the senior police officer to give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.

21. Any person who organises or takes part in a public assembly and knowingly fails to comply with a condition imposed under section 14 is guilty of an offence punishable (in the case of any organiser) by a term of imprisonment not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both, and (in the case of the person taking part in the assembly) by a fine not exceeding level 3 on the standard scale40.

Criminal Justice and Public Order Act 1994 22. Additional public order powers are given to the police in Part 4 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”). Under section 60(1) of the 1994 Act the stop and search powers (in subsection (4)) arise if a police officer of or above the rank of inspector reasonably believes- (a) that incidents involving serious violence may take place and that it is expedient to authorise these stop and search powers to prevent their occurrence; or

39 A public assembly is an assembly of 20 or more persons in a public place which is wholly or partly open to the air: the 1986 Act, s.16. 40 The 1986 Act, s.14(4), (5), (8) and (9).

253 (b) that persons are carrying dangerous instruments or offensive weapons without good reason.

Section 60(4) empowers a police constable in uniform to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments. The police constable may also stop and search any vehicle, its driver and any passenger for such weapons or instruments. Any such weapon or instrument is liable to be seized41.

Firearms Act 1968 23. A further provision relevant in the context of the 1819 Act is section 19 of the Firearms Act 1968 which provides that a person commits an offence if, without lawful authority or reasonable excuse (the proof whereof lies on him), he has with him in a public place a loaded shot gun or loaded air weapon or any other firearm (whether loaded or not) together with ammunition suitable for use in that firearm. Moreover under section 47(1) a constable may require any person whom he has reasonable cause to suspect of having a firearm, with or without ammunition, with him in a public place to hand over the firearm or any ammunition for examination by the constable42.

Common law remedies 24. In addition to these statutory provisions, the common law continues to give the police substantial power to take steps to prevent a breach of the peace. Thus in R v Howell43 it was held that a constable had a power of arrest without warrant where there was a reasonable apprehension of an imminent breach of the peace even though the person arrested had not yet committed any breach. And in Piddington v Bates44 it was held that the power of arrest by a constable for a breach of the peace extended to a power to stop and turn people back who are proceeding to a place where they are proposing to assemble.

Human Rights Act 1998: peaceful assembly 25. Although the modern law does not give the police a general power to prevent a meeting or assembly taking place, such a power would in any event be liable to challenge under the Human Rights Act 1998. Article 11 of the European Convention on Human Rights, which appears in Schedule 1 to the 1998 Act, provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right

41 The 1994 Act, s.60(6). 42 It is an offence to fail to comply with this requirement: section 47(2). 43 [1982] QB 416. This case was cited with approval in R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2004] 2 ALL ER 874 at 880. 44 [1960] 3 ALL ER 660.

254 to form and join trade unions for the protection of his interests45. Article 11 goes on to provide that no restrictions are to be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of, inter alia, national security, public safety and the prevention of disorder or crime46.

Overview of 1819 Act in light of modern law 26. The modern law on public order does not in any sense replicate the 1819 Act. That Act was narrowly focussed so as to criminalise anyone who attends or assists in a meeting or assembly for the purpose of arms training, drilling or practising military exercises. Nor does the modern law seek to prohibit public meetings or assemblies. Instead the modern law, especially the 1986 Act, gives the police a range of powers to take steps to prevent a public meeting, assembly or procession giving rise to disorder, damage, disruption or intimidation. None of these powers were available to the magistrates in 1819.

27. The modern law contains a wide range of powers and procedures to prevent public disorder of the sort that prompted Parliament to pass the 1819 Act. These include- ♦ controlling/prohibiting public processions (1986 Act, ss.12 and 13) ♦ imposing conditions on the maximum numbers of persons who may take part in an assembly or on where it may take place (1986 Act, s.14) ♦ stopping and searching persons in anticipation of violence (1994 Act, s.60) ♦ seizure of firearms carried unlawfully in public (Firearms Act 1968, ss.19, 47(1)) ♦ banning the wearing of uniforms for political purposes (1936 Act, s.1) ♦ banning the organising, training or equipping of persons for the use of physical force to promote any political object (1936 Act, s.2) ♦ common law powers to prevent breaches of the peace.

28. The conclusion is that the 1819 Act has long ceased to serve any useful purpose and has been rendered obsolete by subsequent public order legislation. Its repeal is therefore recommended.

29. The repeal of section 1 of the 1819 Act will permit the remainder of the Act to be repealed consequentially. These remaining provisions are-

45 Art.11(1). 46 Art.11(2).

255 ♦ section 2 (which empowers magistrates and constables to disperse any meeting or assembly rendered unlawful by section 1, and to arrest and detain any persons present at or aiding any such meeting or assembly)47 ♦ section 3 (which applies only in Scotland and which gives sheriffs principal and other persons the powers in Scotland given to magistrates and constables elsewhere in the United Kingdom) ♦ section 748 (all prosecutions to be commenced within 6 months).

30. A further consequential repeal will also be possible to text in the Statute Law (Repeals) Act 1995. Paragraph 1 of Schedule 2 to that Act amended section 1 of the 1819 Act and this amendment will become unnecessary once the 1819 Act is repealed49.

Extent 31. The 1819 Act extends throughout the United Kingdom, albeit with minor variations in relation to Northern Ireland. However, since the modern public order legislation identified above does not extend to Northern Ireland, it is proposed that the repeal of the 1819 Act should not extend to Northern Ireland.

Consultation 32. The Home Office, the Crown Prosecution Service, the Metropolitan Police, the Office of the Deputy Prime Minister, the Ministry of Justice, the Legal Secretariat to the Law Officers, Liberty and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

32-195-449 01 February 2008

47 This power of arrest given to constables has now ceased to have effect by virtue of section 26 of the Police and Criminal Evidence Act 1984 (repeal of statutory powers of arrest without warrant or order). 48 Sections 4 to 6 and 8 have already been repealed; section 4 by Statute Law (Repeals) Act 1989, s.1(1), Sch.1, Pt.1; sections 5 and 6 by Public Authorities Protection Act 1893, s.2, Sch.; section 8 by Statute Law Revision Act 1873. 49 Part of paragraph 1 of Schedule 2 to the 1995 Act will need to be retained because the repeal of the 1819 Act does not extend to Northern Ireland.

256 ANNEX

Unlawful Drilling Act 1819

[1] Unauthorised meetings of persons for the purpose of being trained, or of practising military exercise prohibited

All meetings and assemblies of persons for the purpose of training or drilling themselves, or of being trained or drilled to the use of arms, or for the purpose of practising military exercise, movements, or evolutions, without any lawful authority from his Majesty, or [a Secretary of State, or any officer deputed by him for the purpose], …, by commission or otherwise, for so doing, shall be and the same are hereby prohibited as dangerous to the peace and security of his Majesty’s liege subjects and of his government; and every person who shall be present at or attend any such meeting or assembly for the purpose of training and drilling any other person or persons to the use of arms or the practice of military exercise, movements, or evolutions or who shall train or drill any other person or persons to the use of arms, or the practice of military exercise, movements, or evolutions or who shall aid or assist therein, being legally convicted thereof, shall be liable to [imprisonment] for any term not exceeding seven years, . . . ; and every person who shall attend or be present at any such meeting or assembly as aforesaid, for the purpose of being, or who shall at any such meeting or assembly be trained or drilled to the use of arms, or the practice of military exercise, movements, or evolutions, being legally convicted thereof, shall be liable to be punished by fine and imprisonment not exceeding two years, at the discretion of the court in which such conviction shall be had.

257 Reference Extent of repeal or revocation

______

Punishment of Offences Act 1837 The whole Act. (7 Will.4 & 1 Vict. c.91) ______

Punishment of Offences Act 1837 1. The purpose of the Punishment of Offences Act 1837 (“the 1837 Act”) was to substitute a sentence of transportation for a death sentence in respect of the statutory offences listed in the preamble to the 1837 Act.

2. The 1837 Act is now spent because all the provisions listed in the Act have now been repealed. These provisions are as follow- ♦ Riot Act 1714, ss.1, 5 (repealed by Statute Law (Repeals) Act 1973) ♦ Murder Act 1751, s.9 (repealed by Statute Law (Repeals) Act 1973) ♦ Prisoners (Rescue) Act 1791 (repealed by Statute Law Revision (Ireland) Act 1879, Statute Law Revision (Northern Ireland) Act 1953 and Prison (Northern Ireland) Act 1953, s.48) ♦ Incitement to Mutiny Act 1797, s.1 (repealed by Statute Law (Repeals) Act 1998) ♦ Incitement to Disaffection (Ireland) Act 1797, s.1 (repealed by Statute Law (Repeals) Act 1998) ♦ Unlawful Oaths Act 1812, ss.1, 4 (repealed by Statute Law (Repeals) Act 1981) ♦ Millbank Penitentiary Act 1819, s.17 (repealed by Millbank Prison Act 1843) ♦ Slave Trade Act 1824, s.9 (repealed by Statute Law (Repeals) Act 1998) ♦ Smuggling Act 1833, s.58 (repealed by Customs Act 1845).

3. Since the obsolete provision in section 1 substituting the transportation sentence for the death sentence is the only surviving provision of the 1837 Act, it follows that the 1837 Act as a whole is obsolete and may be repealed.

Extent 4. The 1837 Act extends throughout Great Britain.

Consultation 5. The Home Office, the Ministry of Justice and the relevant authorities in Wales and Scotland have been consulted about this repeal proposal 32-195-449 01 February 2008

258 Reference Extent of repeal or revocation

______

Foreign Enlistment Act 1870 Section 3. (33 & 34 Vict. c.90)

______

Foreign Enlistment Act 1870

1. The purpose of the Foreign Enlistment Act 1870 (“the 1870 Act”) was, according to its long title, ‘to regulate the conduct of Her Majesty’s Subjects during the existence of hostilities between foreign states with which Her Majesty is at peace”.

2. The principal penal provisions of the 1870 Act made it an offence for anyone to enlist for military service in a foreign state at war with another foreign state at peace with this country or to induce another to do so without licence of the Queen (section 4), and for anyone to leave Great Britain or one of its dominions with the intention of enlisting for a foreign state (section 5).

3. Section 3 is the commencement provision. It provided that the 1870 Act should be proclaimed in every British possession by the governor thereof as soon as may be after receiving notice of the Act and should come into operation in that possession on that date. Section 3 ended by providing that the time at which the Act came into operation in any place was, as respects that place, referred to in the Act as the commencement of the Act.

4. Section 3 has long ceased to serve any useful purpose. As originally drafted, it provided also for the 1870 Act to come into force in the United Kingdom at Royal Assent. The provision delaying the commencement in a British possession, until a proclamation been made in that possession, would have allowed for the inevitable delay in notice of the Act reaching far distant overseas territories. However the provision is clearly long since obsolete. And the provision about references in the Act to the commencement of the Act is equally obsolete since the only provision in the Act containing such a reference was section 31 which was repealed in 188350.

Extent 5. The 1870 Act extends throughout the United Kingdom and the Isle of Man.

50 Statute Law Revision Act 1883.

259 Consultation 6. The Foreign and Commonwealth Office, the Ministry of Defence, the Home Office and the relevant authorities in Wales, Scotland, Northern Ireland and the Isle of Man have been consulted about this repeal proposal.

32-195-449 01 February 2008

260 Reference Extent of repeal or revocation

______

Conspiracy, and Protection of Property The whole Act. Act 1875 (38 & 39 Vict. c.86)

______

Conspiracy and Protection of Property Act 1875

Introduction

1. According to its long title, the purpose of the Conspiracy, and Protection of Property Act 1875 (“the 1875 Act”) was “for amending the law relating to conspiracy, and to the protection of property, and for other purposes”.

2. Most of the 1875 Act has already been repealed by subsequent legislation. Indeed the whole of the Act has been repealed as it applied to Northern Ireland51. The surviving provisions are unnecessary for reasons outlined in this note.

Provisions already repealed 3. The following provisions have already been repealed- ♦ section 2 (commencement of Act)52 ♦ section 3 (amendment of law as to conspiracy in trade disputes)53 ♦ section 4 (breach of contract by persons employed in supply of gas or water)54 ♦ section 5 (breach of contract involving injury to persons or property)55 ♦ section 7 (penalty for intimidation or annoyance by violence or otherwise)56 ♦ section 8 (reduction of penalties)57 ♦ section 9 (power for offender to be tried on indictment)58 ♦ section 10 (proceedings before court of summary jurisdiction)59 ♦ section 11 (regulations as to evidence)60

51 Trade Union and Labour Relations (Northern Ireland) Order 1995, SI 1995/1980 (NI 12), art.150(4) Sch.4. 52 Statute Law Revision (No.2) Act 1893 [section 1, Sch.1] 53 Trade Union and Labour Relations (Consolidation) Act 1992, s.300(1), Sch.1 (which repealed this provision in England, Wales and Scotland). 54 Industrial Relations Act 1971, ss.133, 169(2), Sch.9. 55 Trade Union and Labour Relations (Consolidation) Act 1992, s.300(1), Sch.1 (which repealed this provision in England, Wales and Scotland). 56 Trade Union and Labour Relations (Consolidation) Act 1992, s.300(1), Sch.1 (which repealed this provision in England, Wales and Scotland). 57 Statute Law (Repeals) Act 1993, s.1(1), Sch.1, Pt.1 58 Criminal Law Act 1977, ss 15(3)(b), 65(5), Sch 13. 59 Statute Law (Repeals) Act 1989, s 1(1), Sch 1, Pt 1. 60 Ibid.

261 ♦ section 12 (English or Irish appeals to quarter sessions)61 ♦ section 13 (general definitions)62 ♦ section 14 (definitions of ‘municipal authority’ and ‘public company’)63 ♦ section 15 (construction of ‘maliciously’)64 ♦ section 16 (saving as to sea services)65 ♦ section 17 (repeals)66 ♦ section 19 (recovery of penalties etc in Scotland)67 ♦ section 20 (appeals in Scotland)68.

Unrepealed provisions 4. The only unrepealed provision of substance in the 1875 Act is section 6 (penalty for neglect by master to provide food, clothing etc for servant or apprentice). This provides as follows- “Where a master, being legally liable to provide for his servant or apprentice necessary food, clothing, medical aid, or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, whereby the health of the servant or apprentice is or is likely to be seriously or permanently injured, he shall on summary conviction be liable either to pay a penalty not exceeding level 2 on the standard scale, or to be imprisoned for a term not exceeding six months, with or without hard labour69.”

5. The purpose of section 6 was to protect the health of servants and apprentices in a situation where a master was legally liable to provide them with food, clothing, medical aid or lodging. The limited protection afforded by section 6 has been superseded by modern duties on the part of employers to ensure the health and safety of their employees. These duties exist both at common law and by statute. At common law, employers are under a duty to take reasonable care for the health and safety of their employees in all the circumstances of the case so as not to expose them to unnecessary risks.70 By statute, it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees.71 Accordingly the modern duties of employers in relation to the

61 Courts Act 1971, s 56(4), Sch 11, Pt 4. 62 Statute Law (Repeals) Act 1989, s 1(1), Sch 1, Pt 1. 63 Industrial Relations Act 1971, s 169(2), Sch 9. 64 Trade Union and Labour Relations (Consolidation) Act 1992, s 300(1), Sch 1 (which repealed this provision in England, Wales and Scotland). 65 Ibid. 66 Statute Law Revision Act 1883, s 1, Sch.; Industrial Relations (Northern Ireland) Order 1992: SI 1992/807 (NI 5), art 108(3), Sch 6. 67 Statute Law (Repeals) Act 1989, s 1(1), Sch 1, Pt 1. 68 Ibid. 69 The element of hard labour in a sentence of imprisonment was abolished by the Criminal Justice Act 1948 s 1(1) for England and Wales and by the Criminal Procedure (Scotland) Act 1975, s 221(2) for Scotland. 70 Wilsons and Clyde Coal Co Ltd v English [1938] AC 57 (English v Wilsons and Clyde Coal Co Ltd 1937 SC (HL) 46, 1937 SLT 523) 71 Health and Safety at Work etc Act 1974, s 2(1).

262 health and safety of their employees are not limited to issues arising out of the provision of food, clothing, medical aid or lodging.

6. Section 6 is cast in broadly similar terms to section 26 of the Offences against the Person Act 1861 (“the 1861 Act”) which provides as follows- “Whosoever, being legally liable, either as a master or mistress, to provide for any apprentice or servant necessary food, clothing, or lodging, shall wilfully and without lawful excuse refuse or neglect to provide the same, or shall unlawfully and maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude”72.

7. The reason for section 6 being enacted when section 26 was already in force may well have been due to the fact that the 1861 Act did not, in general, extend to Scotland73 whereas the 1875 Act extended throughout the United Kingdom. It is clear that section 6, so far as England and Wales is concerned, is unnecessary given the protection afforded by section 2674. So far as Scotland is concerned, the Crown Office and Procurator Fiscal Service in Edinburgh has advised that the existing common law provides adequate protection without the need to invoke section 6. Accordingly section 6 no longer serves any useful purpose and may safely be repealed.

8. The only other unrepealed provisions in the 1875 Act are sections 1 (short title), 18 (application to Scotland) and 21 (application to Ireland).

9. Since section 6 is no longer required in Scotland, section 18 has become unnecessary because section 6 is the only remaining substantive provision extending to Scotland. That will permit an outright repeal of the 1875 Act because- (a) section 21 is unnecessary, the 1875 Act no longer extending to Northern Ireland75; and (b) the short title in section 1 will fall consequentially.

72 Penal servitude was abolished by the Criminal Justice Act 1948, s.1(1). By virtue of that provision and section 1(1) of the Penal Servitude Act 1891, an offence under section 26 of the 1861 Act is punishable by a period of imprisonment not less than 3 years and not exceeding a maximum of 5 years. A fine may be imposed in addition to, or as an alternative to, imprisonment: Powers of Criminal Courts (Sentencing) Act 2000, s.127. 73 The 1861 Act, s.78. 74 The only aspect of section 6 that is not mirrored by section 26 is in relation to any legal liability to provide a servant or apprentice with medical aid. However, the assumption of such a liability reflects a time before ready access to primary and secondary healthcare provided by the State free of charge. 75 By virtue of the Trade Union and Labour Relations (Northern Ireland) Order 1995, SI 1995/1980 (NI 12), art.150(4), Sch.4.

263 Extent 10. The 1875 Act extends throughout Great Britain.

Consultation 11. The Home Office, the Department of Health, the Department for Work and Pensions, the Crown Prosecution Service, the CBI, the TUC and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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264 Reference Extent of repeal or revocation ______

Criminal Justice Act 1948 Section 69. (11 & 12 Geo.6 c.58) Section 78. Schedule 8. ______

Criminal Justice Act 1948

1. The purposes of the Criminal Justice Act 1948 (“the 1948 Act”) included providing new methods for dealing with offenders and persons liable to imprisonment. For example, penal servitude and hard labour were abolished as forms of punishment76. Several provisions in the 1948 Act are now obsolete.

2. Section 69 provided that where a Royal Pardon has been given to a person who has been sentenced to death and that Pardon is on condition that he serves a term of imprisonment, he is deemed to have been sentenced to that term by the court before which he was convicted. Section 69 dates back to the time when courts had power to pass a death sentence. It is now obsolete because the death penalty can no longer be issued by a court within the United Kingdom.77

3. Section 78 (transitory provisions) introduced the transitory provisions contained in Schedule 8 in respect of persons who, immediately before the commencement of the 1948 Act on 18 April 194978 had been sentenced by a criminal court to penal servitude, imprisonment with hard labour, preventive detention, detention in a Borstal institution, police supervision or to a probation order.

4. Most of Schedule 8 has already been repealed79. The only provisions left unrepealed are paragraphs 1 and 2. Paragraph 1(1) provides that anyone who, before 18 April 1949 was undergoing or liable to undergo a term of penal servitude should, if in custody in England on that date, be treated as if his sentence were for imprisonment and not penal servitude. Paragraph 1(2) provides that anyone who, having been sentenced to (or undergone) penal servitude for life, was on 18 April 1949 out on licence granted under the Penal Servitude Acts 1853 to 1891, should (unless the licence was granted to him when in Scotland) be deemed to be out on licence under section 57 of the 1948 Act. Paragraph

76 The 1948 Act, s.1. 77 The last remaining offences carrying the death penalty were offences under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. The death penalty for these offences was abolished by the Human Rights Act 1998, s.21(5). 78 Section 78 and all relevant paragraphs of Schedule 8 were brought into force by the Criminal Justice Act 1948 (Date of Commencement) Order 1949, SI 1949/139, art.2, Sch.2.

265 1(3)80 provides that anyone who, having been sentenced to penal servitude for a term less than life, was on 18 April 1949 out on licence granted under the Penal Servitude Acts 1853 to 1891, should (unless the licence was granted to him when in Scotland) be treated if his sentence had expired. Paragraph 2 provides that anyone who had been sentenced to imprisonment with hard labour for a term that had not expired on 18 April 1949 should, for the rest of the term, be treated as though he had been sentenced to imprisonment without hard labour.

5. Clearly the transitory provisions in paragraphs 1 and 2 can today operate only in relation to persons who- (a) were imprisoned, or out on licence, on 18 April 1949; and

(b) remain imprisoned, or out on licence, today.

6. The Home Office have confirmed that there are no such persons falling within paragraph 5 above.

Extent 7. The 1948 Act extends to England and Wales only.

Consultation 8. The Home Office, HM Prison Service and the relevant authorities in Wales have been consulted about these repeal proposals.

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79 Powers of Criminal Courts Act 1973, s.56(2), Sch.6. 80 Paragraph 1(2A) of Schedule 8, inserted by Criminal Justice (Scotland) Act 1949, s.77, Sch.11 ceased to have effect when the 1949 Act was repealed by the Criminal Procedure (Consequential Provisions) (Scotland)) Act 1995, s.6, Sch.5.

266 Reference Extent of repeal or revocation ______

Sexual Offences Act 1956 In section 35(2), the words (4 & 5 Eliz.2 c.69) from “(whether” to “1885)”. In section 35(3), the words from “or was so convicted” to “commencement of this Act,” and from “or under subsection (1)” to the end. In section 52(1), the proviso. ______

Sexual Offences Act 1956

1. The Sexual Offences Act 1956 (“the 1956 Act”) was passed to consolidate the existing law relating to sexual crimes and related matters. The passage of time has rendered a number of provisions in the 1956 Act obsolete.

2. Section 35(1) makes it an offence for the tenant or occupier (or person in charge) of any premises knowingly to permit the whole or part of the premises to be used as a brothel.

3. Section 35(2) provides for the enlargement of the rights of a landlord in a case where the tenant or occupier of any premises is convicted, whether under section 35(1) or (for an offence committed before the commencement of the 1956 Act) under section 13 of the Criminal Law Amendment Act 188581, of knowingly permitting the premises to be used as a brothel. This transitional reference to convictions before the commencement of the 1956 Act (1 January 195782) is long spent and may now be repealed on that basis.

4. Similarly spent are two transitional provisions in section 35(3). These are a further reference to section 13 of the Criminal Law Amendment Act 1885, and a reference to a landlord’s rights under section 5(1) of the Criminal Law Amendment Act 191283. Extent 5. The provisions identified for repeal in this note extend only to England and Wales.

81 The Criminal Law Amendment Act 1885 was repealed by the 1956 Act: s.51, Sch.4. 82 The 1956 Act, s.56. 83 The Criminal Law Amendment Act 1912 was repealed by the 1956 Act: s.51, Sch.4. The landlord’s rights given by section 5 of the 1912 Act were replaced by the rights given by Schedule 1 to the 1956 Act. Similarly spent is the proviso to section 52(1) which disapplied these landlords’ rights under the 1912 Act once they had been replaced by the rights given by Schedule 1 to the 1956 Act.

267 Consultation 6. The Home Office, the Crown Prosecution Service, the Office of the Deputy Prime Minister and the relevant authorities in Wales have been consulted about these repeal proposals.

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268 Reference Extent of repeal or revocation ______

Criminal Justice Act 1972 Section 31. (c.71) Section 59. In section 66(6), the proviso. In section 66(7)(a), the words “section 31” to “1950,”. ______

Criminal Justice Act 1972

1. The purposes of the Criminal Justice Act 1972 (“the 1972 Act”) included increasing the penalties for certain offences of Sunday trading, abolishing the duty to re-convey certain prisons to local authorities and amending the penalties for offences under the Firearms Act 1968.

2. Section 31 increased the penalties payable under sections 59(1), 64 and 67(5) of the Shops Act 1950 (penalties for offences of trading or carrying on business on Sunday). Since, however, the whole of the Shops Act 1950 has been repealed, section 31 is now unnecessary84. A consequential repeal is a reference to section 31 in section 66(7)(a) (extension of section 31 to Scotland).

3. Section 59 provided that section 38 of the Prison Act 1952 (which entitled local authorities to buy back prisons that were taken over under the Prison Act 1877 and subsequently closed) was not to apply in the case of any prison closed after the coming into force of section 59 (1 January 1973)85 unless the Secretary of State had before 10 November 1971 informed the appropriate authority of his intention to close it after that date86. The passage of time since 1973 has rendered this provision obsolete.

4. 66(6) provides for the 1972 Act to come into force by order. The proviso to section 66(6) reads- “Provided that-

(a) sections 28, 30, 31 and 32 shall not affect the punishment for an offence completed before those sections come into force; and

84 Sections 59 and 64 of the Shops Act 1950 were repealed by the Sunday Trading Act 1994, s.9(2), Sch.5; the remainder of the 1950 Act (including section 67) was repealed by the Deregulation and Contracting Out Act 1994, ss.23, 24(b), 81(1), Sch.17. 85 Criminal Justice Act 1972 (Commencement No.1) Order 1972, SI 1972/1763, art.2. 86 Prison Act 1952, s.38 (except as provided in s.59 of the 1972 Act) was repealed by the 1972 Act, s.64(2), Sch.6, Pt.2.

269 (b) neither section 36 …87 shall come into force until provision has been made by rules of court with a view to preventing or restricting the disclosure of the identity of the acquitted person in references under that section.”

5. This proviso to section 66(6) has long ceased to serve any useful purpose. So far as paragraph (a) is concerned, the effect of the four provisions specified was to amend certain criminal sanctions contained in earlier enactments. Of the four, only sections 28 and 31 remain in force, (sections 30 and 32 having already been repealed88). Section 31 is proposed for repeal above. As for section 28, its purpose was to amend provisions in Part 1 of Schedule 6 to the Firearms Act 1968 prescribing penalties for offences under that Act. Paragraph (a) was a savings provision to ensure that anyone charged with an offence completed before 1 January 197389 would not be subject to the amended penalty. Clearly no-one now will face charges in respect of firearms offences committed more than thirty years ago. Paragraph (b) became spent when section 36 of the 1972 Act came into force on 1 October 197390.

Extent 6. The provisions proposed for repeal in this note (other than section 59) extend throughout Great Britain. Section 59 extends only to England and Wales.

Consultation 7. The Home Office, the Crown Prosecution Service and the relevant authorities in Wales and Scotland have been consulted about these repeal proposals, as have the Local Government Association and the Welsh Local Government Association in relation to the proposal to repeal section 59.

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87 The words “nor the corresponding section referred to in section 63(3)” were included in section 66(6)(b) when it was originally enacted. However, these words were repealed by the Criminal Appeal (Northern Ireland) Act 1980, s.51(2), Sch.5. 88 Section 30 was repealed by the Protection from Eviction Act 1977, s.12(3), Sch.3; section 32 was repealed by the Housing (Consequential Provisions) Act 1985, s.3, Sch.1, Pt.1. 89 Section 28 was brought into force on 1 January 1973: Criminal Justice Act 1972 (Commencement No.1) Order 1972, SI 1972/1763. 90 Criminal Justice Act 1972 (Commencement No.3) Order 1973, SI 1973/1472.

270 Reference Extent of repeal or revocation ______

Criminal Justice Act 1982 Section 28. (c.48) Sections 30 and 31. Section 68(1). Section 72(3). Schedule 12. ______

Criminal Justice Act 1982

1. The purposes of the Criminal Justice Act 1982 (“the 1982 Act”) included making further provision as to the sentencing and treatment of offenders. Several provisions in the 1982 Act have now ceased to serve any useful purpose. ` 2. Section 28 increased the limit on the amount of a recognisance that can be taken from parents and guardians by amending the sum specified in section 2(13) of the Children and Young Persons Act 196991. Section 2 of the 1969 Act was, however, repealed by the Children Act 198992 whereupon section 28 became spent.

3. Sections 30 and 31 are also amending provisions that are now spent. Section 30 amended section 47 of the Criminal Law Act 1977. Section 47 was, however, repealed by the Criminal Justice Act 199193 whereupon section 30 became spent. Section 31 repealed text in section 23(1) of the Powers of Criminal Courts Act 1973 and became spent when section 31 came into force on 31 January 198394.

4. Section 72(1) abolished the right of an accused person to make an unsworn statement in criminal proceedings. Section 72(3), however, disapplied this abolition in relation to a trial (or to proceedings before a magistrates’ court acting as examining justices) which began before section 72 came into force on 24 May 198395. Clearly the need for section 72(3) has long since passed.

5. Schedule 12 relates to the powers of courts in England and Wales in relation to community service orders and to arrangements for persons in England and Wales to perform work under such orders. Schedule 12 operates by amending sections 14 and 17 of the Powers of Criminal Courts Act 1973. Since, however, the 1973 Act has been repealed by

91 Section 28 increased the limit from £200 to £500. 92 The 1989 Act, s.108(7), Sch.15. 93 The 1991 Act, ss.5(2)(b), 101(2), Sch.13. 94 Criminal Justice Act 1982 (Commencement No.1) Order 1982, SI 1982/1857.

271 the Powers of Criminal Courts (Sentencing) Act 200096, Schedule 12 is now spent. Similarly spent is section 68(1) which introduces Schedule 12.

Extent 6. The provisions proposed for repeal in this note extend to England and Wales only.

Consultation 7. The Home Office, the Crown Prosecution Service and the relevant authorities in Wales have been consulted about these repeal proposals.

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95 Criminal Justice Act 1982 (Commencement No.2) Order 1983, SI 1983/182. 96 The 2000 Act, s.165(4), Sch.12, Pt.1.

272 Reference Extent of repeal or revocation ______

Nuclear Material (Offences) Act 1983 Section 4(1)(a). (c.18) Section 5A.

______

Nuclear Material (Offences) Act 1983

1. The principal purpose of the Nuclear Material (Offences) Act 1983 (“the 1983 Act”) was to implement the Convention on the Physical Protection of Nuclear Material97. The 1983 Act contains two provisions that are now unnecessary.

2. Section 4(1)(a) amends sections 2(1) and 2(2) of the Internationally Protected Persons Act 1978 as those provisions were originally enacted. However, these amendments to sections 2(1) and 2(2) were replaced by text substituted by the United Nations Personnel Act 199798. Section 4(1)(a) thereupon became spent.

3. Section 5A of the 1983 Act was prospectively inserted by the Criminal Justice Act 198899 but ceased to have effect when the provision inserting it was repealed by the Extradition Act 1989100.

Extent 4. The 1983 Act extends throughout the United Kingdom.

Consultation 5. The Home Office and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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97 This Convention was opened for signature at Vienna and New York on 3 March 1980. 98 The 1997 Act, s.7, Sch, para.2. Further amendments were made to the text of sections 2(1) and 2(2) by the Crime (International Co-operation) Act 2003, s.91(1), Sch.5, paras.1, 2. 99 The 1988 Act, s.170(1), Sch.15, para.95. 100 The 1989 Act, s.37(1), Sch.2.

273 Reference Extent of repeal or revocation ______

Prosecution of Offences Act 1985 Sections 12 and 13. (c.23) Section 15(7). Section 28. Section 31(4). ______

Prosecution of Offences Act 1985

1. The principal purpose of the Prosecution of Offences Act 1985 (“the 1985 Act”) was to establish a Crown Prosecution Service (‘CPS’) for England and Wales. Several provisions in this Act have now become unnecessary.

2. Section 12 imposed an obligation on the Attorney General, not later than 3 months after the passing of the 1985 Act, to establish a staff commission to – (a) consider the general effect of Part 1 of the 1985 Act (establishment of the CPS) on staff employed by any authority in connection with the discharge of prosecution functions; and

(b) advise the Attorney General and the Director of Public Prosecutions (‘DPP’) on the arrangements necessary to safeguard the interests of such staff.

3. The purpose of this transitory provision was to assess the effect of the new prosecuting regime established by the 1985 Act on the staff then employed (whether by central or local government or otherwise) around England and Wales on prosecution work. The staff commission’s functions were accordingly limited to the period immediately following the passing of the 1985 Act on 23 May 1985 and have now long ceased to be exercisable.

4. Section 13 was another temporary provision to ensure the smooth running of the CPS in its early days. In particular it ensured that any premises and equipment being used for the discharge of prosecution functions by staff immediately before being transferred to the staff of the DPP were made available for use by the CPS. Any authority using any such premises or equipment was required to make them available to the CPS: subsections (2) and (3). The Secretary of State had to reimburse authorities accordingly: subsection (4). By virtue of subsection (6), however, authorities ceased to be bound by section 13 once 5 years (10 at the most) had elapsed from the time that the relevant prosecuting staff had been taken over by the DPP. Given that virtually the whole of the 1985 Act was in force by

274 1987101, section 13 has now ceased to have any practical utility. Its repeal is therefore proposed on that basis.

5. Section 15(7) is a transitional provision whereby the person holding the office of DPP immediately before the commencement of section 2 (1 April 1986102) was thereafter to be treated as holding that office in pursuance of an appointment made by the Attorney General. Since there have been several holders of the office of DPP since 1986, section 15(7) is now unnecessary.

6. Section 28 repealed section 9 of the Perjury Act 1911 and became spent when that repeal took effect on 1 April 1986103.

7. Section 31(4) is another transitional provision. It provides that certain paragraphs of section 3(2) are not to apply to proceedings instituted (or begun by a summons issued) before their commencement. The relevant paragraphs related to the duty of the DPP to take over the conduct of certain criminal proceedings. Given that these paragraphs had come into force, at the latest, by 1 October 1986104, section 31(4) has long ceased to be necessary.

Extent 8. The 1985 Act extends to England and Wales only.

Consultation 9. The Home Office, the Crown Prosecution Service and the relevant authorities in Wales have been consulted about these repeal proposals.

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101 A series of commencement orders brought virtually the whole of the 1985 Act into force between May 1985 and April 1987, the final one being the Prosecution of Offences Act 1985 (Commencement No.3) Order 1986, SI 1986/1334. 102 Prosecution of Offences Act 1985 (Commencement No.1) Order 1985, SI 1985/1849. This commencement related to certain geographical areas only. Elsewhere the commencement was 1 October 1986: Prosecution of Offences Act 1985 (Commencement No.2) Order 1986, SI 1986/1029. 103 Prosecution of Offences Act 1985 (Commencement No.1) Order 1985, SI 1985/1849. 104 The actual commencement date depends on the geographical area of the proceedings in question: see Prosecution of Offences Act 1985 (Commencement No.1) Order 1985, SI 1985/1849; Prosecution of Offences Act 1985 (Commencement No.2) Order 1986, SI 1986/1029.

275 Reference Extent of repeal or revocation ______

Criminal Justice Act 1988 Section 49. (c.33) Section 64. Section 100. Section 103. Section 123(1) and (5). Section 125. Schedule 5. In Schedule 8, Part 2.

Criminal Justice Act 1991 Section 69. (c.53). Section 72.

Criminal Procedure and Investigations Section 46. Act 1996 (c.25) Section 65.

Public Order (Amendment) Act 1996 The whole Act. (c.59)

Crime and Disorder Act 1998 Section 35. (c.37) Section 36(3) and (6). Section 97(5). Sections 107 and 108. Section 116.

Anti-terrorism, Crime and Security Sections 37 and 38. Act 2001 (c.24) Sections 122 and 123. ______

Introduction

1. This note identifies a number of provisions in recent criminal statutes that have become unnecessary since their enactment.

Criminal Justice Act 1988 2. The purpose of the Criminal Justice Act 1988 (“the 1988 Act”) was to make changes to the existing criminal justice system.

3. Section 49 repealed section 134 of the Magistrates’ Courts Act 1980 and became spent when section 49 came into force on 12 October 1988105.

4. Section 64 amended section 32 of the Game Act 1831 by increasing the maximum fine payable from level 1 to level 4. However that amendment has been superseded by a

105 Criminal Justice Act 1988 (Commencement No.2) Order 1988, SI 1988/1676.

276 further amendment increasing the maximum fine to level 5106 in relation to offences committed after 3 February 1995. Section 64 is accordingly now spent.

5. Section 100(7) (power to inspect Land Register etc) provided that section 100 should cease to have effect on the day appointed under section 3(2) of the Land Registration Act 1988 for the coming into force of that Act. The day appointed was 3 December 1990107 whereupon section 100 ceased to have effect.

6. Section 103(2) amended the provisions of the Criminal Justice (Scotland) Act 1987 specified in Part 2 of Schedule 5 to the 1988 Act. However the provisions amended have since been repealed108. Consequently section 103(2) (and Part 2 of Schedule 5) is spent. Moreover since section 103(1) (which amended the provisions specified in Part 1 of Schedule 5) has already been repealed109, section 103 (and Schedule 5) may now be repealed as a whole.

7. Section 123 relates to custodial sentences for young offenders. Subsection (1) introduces subsections (2) to (5). However, subsections (2) to (4) have already been repealed110 and subsection (5), which substituted a new section 2(4) of the Criminal Justice Act 1982, became spent when section 2(4) was repealed111. Accordingly subsection (1) is now unnecessary and may be repealed along with subsection (5).

8. Section 125 repealed section 22(5) of the Children and Young Persons Act 1969. Section 125 became spent upon coming into force on 1 October 1988112.

9. Schedule 8 amended the law relating to custodial sentences for young offenders. Part 2 of Schedule 8 contained transitional provisions in relation to young offenders who, before the commencement of section 1A of the Criminal Justice Act 1982 on 1 October 1988113, had been committed for sentence to the Crown Court, had been sentenced to youth custody, had been detained in a detention centre or youth custody centre114 or had been subject to release under licence or to supervision. The passage of time since 1988 has

106 This amendment was made by Criminal Justice and Public Order Act 1994, s.168(1), Sch.9, para.1(1), (3), (7). 107 Land Registration Act 1988 (Commencement) Order 1990, SI 1990/1359. 108 Criminal Procedure (Consequential Provisions) (Scotland) Act 1995, ss.4, 6, Sch.3, Pt.2, paras.15, 16; Sch.5. 109 Drug Trafficking Act 1994, s.67, Sch.3. 110 Subsections (2) and (3) were repealed by Criminal Justice Act 1991, s.101(2), Sch.13. Subsection (4) was repealed by Powers of Criminal Courts (Sentencing) Act 2000, ss.165(4), 168(1), Sch.12, Pt.1. 111 Criminal Justice Act 1991, s.101(2), Sch.13. 112 Criminal Justice Act 1988 (Commencement No.1) Order 1988, SI 1988/1408. 113 Section 1A of the Criminal Justice Act 1982 was inserted by sections 123(1), (4) of the 1988 Act. Section 123 came into force on 1 October 1988; Criminal Justice Act 1988 (Commencement No.1) Order, SI 1988/1408. 114 By virtue of a custodial order under certain provisions in the legislation relating to the Armed Forces.

277 clearly rendered these transitional provisions relating to young offenders unnecessary. In consequence, Part 2 of Schedule 8 may now be repealed.

Extent 10. The provisions of the 1988 Act proposed for repeal extend to England and Wales only (except that section 103(2) and Part 2 of Schedule 5 extend to Scotland only).

Criminal Justice Act 1991 11. The purposes of the Criminal Justice Act 1991 (“the 1991 Act”) included making new provision with respect to the treatment of children and young persons in the criminal justice system.

12. Section 69 inserted subsection (1A) into section 12 of the Magistrates’ Courts Act 1980. However a new section 12 was later substituted by the Criminal Justice and Public Order Act 1994115 whereupon section 69 became unnecessary.

13. Section 72 repealed certain provisions in the Children and Young Persons Act 1969 and in the Police and Criminal Evidence Act 1984. Section 72 became spent once it came into force on 1 October 1992116.

Extent 14. The provisions of the 1991 Act proposed for repeal extend to England and Wales only.

Criminal Procedure and Investigations Act 1996 15. The purpose of the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”) was to make provision about criminal procedure and criminal investigations.

16. Section 46(1) repealed provisions in the War Crimes Act 1991 and became spent when section 46(1) came into force at Royal Assent on 4 July 1996. Since the only other provision in section 46 (subsection (2)) has already been repealed117, the whole of section 46 may now be repealed.

115 The 1994 Act, s.45, Sch.5, para.1. 116 Criminal Justice Act 1991 (Commencement No.3) Order 1992, SI 1992/333. 117 Access to Justice Act 1999, s.106, Sch.15, Pt.1.

278 17. Section 65 repealed provisions in the Criminal Procedure (Attendance of Witnesses) Act 1965 and in the Magistrates’ Courts Act 1980, all in relation to any alleged offence into which no criminal investigation had begun before 1 April 1997. Section 65 came into force at Royal Assent on 4 July 1996 whereupon it became spent.

Extent 18. Section 46 extends to England, Wales and Northern Ireland whilst section 65 extends to England and Wales alone.

Crime and Disorder Act 1998 19. The purposes of the Crime and Disorder Act 1998 (“the 1998 Act”) included making provision for preventing crime and disorder.

20. The 1998 Act contains a number of repealing provisions, all of which became spent when they came into force. These provisions are- ♦ section 35 (which repealed provisions in the Criminal Justice and Public Order Act 1994, and which came into force on 30 September 1998118) ♦ section 36(3) and (6) (which repealed provisions in the Treason Acts 1790 and 1795, the Sentence of Death (Expectant Mothers) Act 1931 and in the Criminal Justice Act (Northern Ireland) 1945, and which came into force on 30 September 1998119) ♦ section 97(5) (which repealed section 20 of the Criminal Justice and Public Order Act 1994, and which came into force on 1 June 1999120) ♦ section 107(2) (which repealed provisions in the Crime (Sentences) Act 1997, and which came into force on 30 September 1998121) ♦ section 108 (which repealed provisions in the Crime and Punishment (Scotland) Act 1997, and which came into force on 30 September 1998122).

21. Section 116 is a transitory provision relating to the period before section 73 was brought into force. In particular section 116(1) empowered the Secretary of State to make an order relating to the court’s powers to make orders under sections 1 and 4(3)(a) before

118 Crime and Disorder Act 1998 (Commencement No.2 and Transitional Provisions) Order 1998, SI 1998/2327. 119 Crime and Disorder Act 1998 (Commencement No.2 and Transitional Provisions) Order 1998, SI 1998/2327. 120 Crime and Disorder Act 1998 (Commencement No.4) Order 1999, SI 1999/1279. 121 Crime and Disorder Act 1998 (Commencement No.2 and Transitional Provisions) Order 1998, SI 1998/2327. The repeal of section 107(3)-(5) by the Powers of Criminal Courts (Sentencing) Act 2000, s.165(4), Sch.12, Pt.1 means that, once section 107(2) has been repealed, section 107 will contain no substantive provision and may therefore be repealed in whole. 122 Crime and Disorder Act 1998 (Commencement No.2 and Transitional Provisions) Order 1998, SI 1998/2327.

279 that date123. Section 73 was duly brought into force on 1 April 2000124 whereupon section 116 became spent. It may be repealed on that basis.

Extent 22. The repeals to the 1998 Act proposed in this note extend to England and Wales only except that sections 36(3) and 108 extend to Scotland and section 36(6)(b) to Northern Ireland.

Anti-terrorism, Crime and Security Act 2001 23. The purposes of the Anti-terrorism, Crime and Security Act 2001 (“the 2001 Act”) included making further provision about terrorism and security.

24. Sections 37 and 38 are repealing provisions. They repealed provisions in, respectively, the Public Order Act 1986 and the Public Order (Northern Ireland) Order 1987. Both sections became spent when they came into force at Royal Assent on 14 December 2001.

25. Section 122 required the Secretary of State to appoint a committee to conduct a review of the 2001 Act. By subsection (4), the committee had to complete the review and send a report not later than the end of 2 years beginning with the day on which the Act was passed (i.e. 2 years from 14 December 2001). By subsection (5) the Secretary of State had to lay a copy of the report before Parliament as soon as was reasonably practicable.

26. The report was duly produced by the Privy Counsellor Review Committee. It was laid before Parliament on 18 December 2003.125 Section 122 thereupon became spent.

27. Section 123 provided for the report produced by the committee pursuant to section 122(4) to specify any provision of the 2001 Act as a provision which, pursuant to section 123(2), should cease to have effect 6 months after the report was laid before Parliament under section 122(5) (i.e. 18 June 2004). In the event the Committee specified the whole Act. However, section 123(3) provided that this section 123(2) cesser provision should not apply if, before the end of the 6 month period, a motion had been made in each House of Parliament considering the report. Since such a motion was duly passed in each House126,

123 Secure Training Order (Transitory Provisions) Order 1998, SI 1998/1928. 124 Crime and Disorder Act 1998 (Commencement No.6) Order 1999, SI 1999/3426. 125 Privy Counsellor Review Committee Report on the Anti-terrorism, Crime and Security Act 2001 (HC 100). 126 25 February 2004, Hansard (HC), col 384; 4 March 2004, Hansard (HL), col 833.

280 section 123(3) did not result in any statutory provisions ceasing to have effect. Section 123 now having run its course, the whole of the section is now spent.

Extent 28. The provisions of the 2001 Act proposed for repeal extend throughout the United Kingdom.

Consultation 29. The Home Office, the Crown Prosecution Service, the Ministry of Justice and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

32-195-449 01 February 2008

281 PART 4

EAST INDIA COMPANY

______

East India Company Acts (various) from 1796 to 1832

General background to the legislation 1. The East India Company was established by Royal Charter in 1600 and operated until its dissolution in 1874.1 Its initial purpose was to provide a vehicle for the creation of exclusive trading privileges in the East Indies (India, including Pakistan and Bangladesh, and Malaysia, China and Japan) for London merchants. In practice, it also became an “agent of imperialism”2 prior to the passing of direct rule of India to the British government in 1858.

2. The East India Company began as “The Governor and Company of Merchants of London Trading into the East Indies”.3 It operated under a trade monopoly throughout the 17th century. At first, the company’s prospects were dependent upon the success of individual voyages, but by 1657 the company had achieved continuous investment through a joint stock arrangement. The Royal Charter provided the key to the company’s success: although it was not a state enterprise (unlike its main European competitors, the Dutch company and the French company), the Charter underpinned the company’s reputation and standing. Except where its actions impinged on national interests, it was allowed to operate independently and unchecked.

3. In 1694, the Government (bowing to the forces of opposition) withdrew the East India Company’s trade monopoly. The English Parliament provided that all English subjects had the right to trade with the Indies. In 1695, a Scottish East India Company was formed, but soon failed because of lack of backing from the English Parliament. A second English East India Company was established in 1698, and the two English organisations then operated concurrently. Through a constitutional flaw,

1 See generally, for the history of the British East India Company, P Lawson, The East India Company: A History (1993); G Davies, The Early Stuarts 1603-1660, (2nd ed 1959) p 322; G Clark, The Later Stuarts 1663-1714, (2nd ed 1959) p 348; B Williams, The Whig Supremacy 1714-1760, (2nd ed 1959) p 324 and L Woodward, The Age of Reform 1815-1870, (2nd ed 1959) p 403. The Royal Charter was granted by Elizabeth I on 31 December 1599, and became effective the following day. 2 P Lawson, The East India Company: A History (1993) p viii.

282 the second company (which was share-based) lost majority control to the first. By 1702, it had become clear that the original company was the stronger, and that the two companies could not co-exist. In 1708, after six years of negotiation facilitated by Sidney Godolphin (1st Earl of Godolphin), the two companies formally merged, to become the “United Company of Merchants of England Trading to the East Indies”.4

4. The amalgamated company not only consolidated its lucrative trade monopoly in the Indies through the 18th century, it also extended its reach from trading to the exercise of political and territorial power. Anglo-French hostilities in Europe spilt over into the Indies, and there were numerous clashes between French5 and the English6 factions. Moreover, both the French and English companies became embroiled in the domestic rivalry of the Mughal rulers in India, with each company supporting a different camp. The English company recognised the only way to preserve English interests in India was to defend them aggressively. Sir Robert Clive returned7 to India in 1756, at the start of the Seven Years War,8 and set about his appointed task. After a key battle at Plassey in 1757, he secured the presidency of Madras, and then sent a relief force to Bengal where he captured Calcutta.9 With Madras and Bengal under Clive’s command, and both nawabs (local rulers) subject to his control, the East India Company secured sovereignty in the region.

5. The company ruled a large part of India throughout the 18th century under its own mandate. The East India Company Act 178610 marked the formal transfer of political and ruling power in India from the company to the British Crown, with the company acting as the state’s subsidiary. Thereafter, the fortunes of the company deteriorated. Its general indebtedness grew and trading became increasingly reliant on military support from the company-controlled Indian army. In 1813, Parliament

3 The Royal Charter, 1600, as cited in P Lawson, The East India Company: A History (1993) p17. 4 W Holdsworth, A History of English Law, volume XI (1966) p148. 5 Led primarily by Joseph François Dupleix. 6 Led primarily by Sir Robert Clive, later 1st Baron Clive of Plassey. (b.1725-d.1774.) Clive became an East India Company servant in 1743. After a short period in the administrative service, he transferred to the company’s military arm and headed numerous campaigns in the Indies. Clive returned to England after retiring from active service in 1767. 7 For a discussion of Clive’s previous sojourn in India, please see paragraph 3 on page 294. 8 1756-1763. The Treaty of Paris 1763, signed by Britain, France and Spain, formally marked the end of the hostilities. 9 Clive’s action was in response to the “Black Hole of Calcutta” incident, where 123 Britons died in a single night after being imprisoned by the nawab. 10 East India Company Act 1786 (26 Geo.3 c.16), repealed in 1793. Parliament had previously attempted to clarify the boundaries between the company and the British state with the East India Company Act 1784 (24 Geo.3 Sess.2 c.25), which provided for a Board of Commissioners, appointed by

283 withdrew the company’s trading monopoly.11 Having lost its ability to make a profit, the East India Company’s role became simply the provision of administrative services to the British Crown.

6. In 1857, as a consequence of British political reforms, principally affecting Bengal and the north-east of the country, the Indian army mounted attacks (the Great Rebellion) in that region against their British officers. The other British presidencies were less affected. This sealed the fate of the company: because it could no longer control the military, it could no longer act as an arm of the British Crown. The Government of India Act 185812 provided that the governance of India should pass absolutely to the British Crown (for whom it had been held in trust). The company was unable to divorce itself from its past dealings with India, and its fortunes failed to improve. It ceased trading, and was dissolved by Act of Parliament in 1874.13

the Crown, to control the company. Because the 1784 Act was capable of different interpretations, the 1786 Act’s purpose was to remove uncertainty. 11 East India trade Act 1813 (54 Geo.3 c.34). The company retained its monopoly to trade in tea with Canton (China), but in all other respects the monopoly was abolished. 12 21 & 22 Vict. c.106 (1858). 13 East India Stock Dividend Redemption Act 1873 (36 & 37 Vict. c.17).

284 ______Reference Extent of repeal or revocation ______36 Geo.3 c.119 (1796) The whole Act. (East India Merchants and Purchase of land in City, etc Act)

36 Geo.3 c.127 (1796) The whole Act. (East India Merchants and land for Warehouses, etc Act) ______

Background to the legislation

1. The East India Company headquarters were based at East India House, in Leadenhall Street in the City of London, for the entirety of the company’s existence. The former mansion house was in use from 1648 to 1726, when it was then rebuilt. The new building was replaced in 1799-1800 by a much larger structure (designed by the architect Richard Jupp) which survived until 1929.14 Lloyd’s of London took over East India House after 1874.

36 Geo.3 c.119 (1796) Purpose 2. By 1796, two issues had arisen. First, the company’s headquarter offices required expanding and, secondly, the proximity of the dwelling-houses on the eastern side of the property posed a fire hazard which needed to be addressed by creating a wider safety cordon. The solution was, initially, for the company to promote what became an Act of 1796, in order to obtain the necessary powers.15

3. The broad purposes behind the 1796 Act were as follows:

(a) to facilitate the acquisition by the company of various premises for the project,16 the owners of three specific parcels of land (who lacked full

14 See www.portcities.org.uk/london/server/show/conMediaFile.6114/The-Old-East-india-House. 15 36 Geo.3 c.119 (1796) (“the 1796 Act”), being “An Act to enable the United Company of Merchants of England trading to the East Indies, to purchase certain Houses and Ground contiguous to the East India House, and to widen the North End of Lime Street”. The Act recited in its preamble that the United Company owned the freeholds of a “certain edifice” known as the East India House and of “divers offices and warehouses thereunto adjoining” (including a property called simply The India House), which property-holding stretched from Leadenhall Street through to the west side of Lime Street, at its rear. The various offices were used for the safe-keeping of company papers and records, which were “of great consequence to the publick as well as to the said United Company”, and of “other valuable property”: ibid., preamble. 16 In summary the project involved extending the offices at India House, and widening the north end of Lime Street, both of which necessitated the acquisition of land and buildings from Leadenhall Street

285 legal capacity to transfer title) were authorised “to sell and convey” the various legal interests to the company, notwithstanding the legal impediments;17

(b) to authorise the sale of one parcel of land in Lime Street by the parson and churchwardens of the parish of St. Andrew Undershaft, by deeming them to be holders of the legal estate (even though they were simply recipients of the rents and profits of the land which was held by others on trust for charitable purposes);18

(c) in the event that any one or more of the owners of the three sites should refuse to sell, or should be unable to adduce “a clear title”, to provide for the assessing, by a special jury, of the values of the parcels of land in question for compensation purposes and determination by court order.19 If no person could be identified as an appropriate recipient of the compensation moneys, then, on payment of the moneys into the Bank of England in the prescribed manner, “good, clear, and perfect title” could be conveyed to the company, or the company could take possession of the land as the lawful owners;20

eastwards, to Lime Street, and in Lime Street itself, from its north-west corner up to the shipping office already in the company’s ownership. Much of the required land had been acquired by the company by agreement, but three parcels remained outstanding. Even though the purchase prices had been agreed with the respective vendors, unencumbered title could not be conveyed until certain charitable trusts attaching to the properties had been circumvented. This required parliamentary authorisation: the 1796 Act, preamble. Conduct of the project could be overseen by a committee of the court of directors of the company, operating under delegated powers: ibid., s 17. 17 The 1796 Act, s 1. The form of conveyance was to be by indenture, reciting the consideration paid, and “enrolled in the court of hustings of the said City of London” within six months of execution. The effect of enrolment was that the estates stated to be conveyed to the company would be properly vested in it, and the indenture would “have the same force as fines and recoveries duly levied and suffered”: ibid., s 1. Similarly, all “bargains and sales” (in respect of land purchased by the company for the 1796 Act’s purposes), once enrolled in the court of hustings, would “absolutely vest the premises therein mentioned” in the company and would likewise have the force accorded to “any fine or fines, recovery or recoveries whatsoever” when levied: ibid., s 11. 18 The 1796 Act, s 2. The Act recited that from 1672 onwards the land was held by “sundry persons, inhabitants of the said parish” as trustees (under the will of Thomas Rich, deceased) but, on their various deaths, the parson, churchwardens and vestrymen for the time being of the parish had failed to appoint replacement trustees. As a consequence, and with the passage of time, it had become impossible to ascertain the individuals in whom the estate should have vested (and who could now lawfully convey the land). An ownership deeming provision was the solution. 19 The 1796 Act, s 3. The jury was to be empanelled by the Lord Mayor’s Court (acting through the City sheriffs), on the application of the court of directors of the company. Once value was determined by the court, notice of the decision was then to be served on the interested parties. The Act laid down, in sections 3 to 5, the mechanics for summoning the jury, of returning a verdict, of remunerating jurors, of assessing and awarding costs between the parties, and of maintaining the court’s records of its findings. By section 14, the Lord Mayor’s Court was empowered to impose a fine up to £10 on any sheriff, deputy, bailiff, agent, juror or witness who defaulted on, or wilfully neglected to perform, their duty under the Act, and to levy distress to enforce such fine. 20 The 1796 Act, s 6. Any conveyance (or deemed conveyance) was to contain “all such reasonable and usual covenants as on the part of the said United Company, their successors and assigns, shall be

286 (d) to require the payment and the application of the land purchase moneys in such a way that alternative lands could be acquired for the vendor owners, to be held on the same trusts as applied to the original lands (under the supervision of the High Court of Chancery);21

(e) to authorise the making of claims by individuals for recovery of the monetary value (with interest) of lands purchased by the company, subject to a limitation period of five years;22

(f) to require the company, “with all convenient speed after the passing of this [1796] Act”, to complete the authorised land purchases, to demolish the various buildings on site (fronting Lime Street), and then to widen and pave both the carriageway and the abutting west-side footway;23

reasonably required”, and was to be executed at the expense of the company: ibid. Where persons were in actual occupation of premises being purchased, and their terms of occupation had not yet expired “by effluxion of time or otherwise”, they were to be served with notice and were only to be dispossessed when the term had expired or six months had elapsed. If vacant possession was not offered, the court was empowered to issue a precept to take possession: ibid., s 7. 21 The 1796 Act, ss 8-10. Specific statutory provision had to be made in respect of two of the land acquisitions. In the case of settled land owned by Mr and Mrs J Ravenshaw (located in Leadenhall Street), but held in trust for their family and funding an annual charitable payment, the purchase money was to be paid into the Bank of England (in the name of the accountant-general of the Chancery Court, to earn interest through government use, pursuant to the mechanics prescribed by 12 Geo.1 c.32 (1725) and 12 Geo.2 c.24 (1738)) pending the purchase of a replacement property sanctioned by the court: ibid., s 9. In the case of land belonging to the parish of St. Andrew Undershaft, located at Lime Street (see above) held for charitable purposes, and land belonging to the Governors of Christ’s Hospital in London, also located in Lime Street and held for charitable purposes, the capital purchase moneys would likewise be paid into the Bank for investment (to the order of the Chancery court), pending use for the acquisition, in each instance, of replacement real estate. Meanwhile, the interest accruing could either be paid to the charitable bodies, or retained and accumulated to supplement the eventual purchase moneys: ibid., s 10. 22 The 1796 Act, s 12. The claimant was able to enter a “memorial” of their claim in a register to be maintained by the town clerk of the City of London (on the lines of a register maintained for the county of Middlesex), which claim had then to be established by the claimant. A claim could only be made within five years from the date of enrolment of the sale or bargain in the hustings (or within five years of removal of any legal disability on the claimant’s part), after which it would become statute-barred. On expiry of the limitation period, the company would be “quieted in the possession” of the acquired property. In the event of a successful claim against it, the company had the right to seek indemnity from the original vendor: ibid., s 12. Where a claimant succeeded in their action, they were not precluded from bringing separate proceedings to recover mesne profits from any person who had, prior to the purported sale, been in possession of the property: ibid., s 13. 23 The 1796 Act, s 15. Lime Street was to be widened from its north end up to the company’s existing shipping office building, to a minimum overall width of 22 feet (including a footway at least 4 feet wide), and paved (or re-paved) in Purbeck stone (so as to match the paving with which “the other streets of London are most usually paved”): ibid. This construction obligation did not, however, extend to the future repair and maintenance of the paved street (“the pavement”), which would “for ever then after be kept in repair by such person or persons, companies or societies, which now are or hereafter shall be chargeable with the repairs of the publick streets in the said parish of Saint Andrew Undershaft”: ibid., s 16. The duty to pave, repair and maintain streets and highways in the City was vested in the Mayor and Commonalty of the City of London, on behalf of the City’s inhabitants, by the Paving, etc, of London Act 1768 (8 Geo.3 c.21). This Act was amended by the City of London Sewerage Act 1771 (11 Geo.3 c.29) and the London (Streets and Sewers) Act 1793 (33 Geo.3 c.75). The duty passed to the vestries under the Metropolis Management Act 1855, but reverted to the City Corporation under the London Government Act 1899 (now repealed). The City Corporation remains the local highways authority for all non-strategic roads within its boundary.

287 (g) to permit the company to exceed the maximum annual value statutorily prescribed for its land and property portfolio in Great Britain;24 and

(h) to lay down a limitation period for legal challenge of “any thing done in pursuance of this [1796] Act”.25

Status of the 1796 Act 4. The sole purpose of the 1796 Act was to enable the East India Company to extend its headquarters building in London, subject to it also widening and paving a public highway adjoining one of the boundaries.

5. The 1796 Act stood alone, and was not dependent upon other legislation relating to the company’s functions. Apart from references to existing national legislation relating to the summoning of juries (in section 3) and to the payment of compensation moneys into court (in section 9), the Act did not on its face refer to other legislation.

6. The enlarged Leadenhall Street building was erected in 1799-1800. It appears to have survived until 1929, when it was demolished. Today, the site is occupied by the Lloyd’s Building (designed by Richard Rogers, and built in 1986).

7. The East India Company was dissolved in 1874.

8. The 1796 Act is now spent, and may be repealed in whole.

36 Geo.3 c.127 (1796) Purpose 9. At the same time, the company needed to reconfigure its warehousing operation in order to make it more secure. To this end it sought, and obtained, further legislative powers which would enable it to stop up a public highway that divided its warehouse complex, and would enable it to acquire land for this purpose and for building further warehousing.26

24 The 1796 Act, s 18. The Act recognised that the threshold would of necessity be exceeded by the acquisition of the additional lands and by carrying out the building construction and refurbishment programme. 25 The 1796 Act, s 19. Actions had to be commenced in the City of London within six months of accrual of the cause, failing which they would be time-barred and costs penalties could be imposed. 26 The powers were contained in 36 Geo.3 c.127 (1796) (“the warehousing Act”), being “An Act for enabling the United Company of Merchants of England trading to the East Indies to purchase Ground

288 10. In broad terms the second 1796 Act (“the warehousing Act”) provided the following powers:

(a) to enable the company’s court of directors to enlarge its landholding within the City of London27 by acquiring “a small estate” (5 Inkhorn Court) then in private ownership;28

(b) to build additional warehouse accommodation and to ensure that its warehousing complex was “united and made private” by acquiring further land and diverting an existing public street;29

(c) to empower all corporate bodies and persons with legal incapacity “to sell and convey” to the company, by indenture, their interests in the relevant parcels of land;30

(d) to provide a mechanism “to settle and ascertain” the value of parcels of land where an owner either refuses to sell voluntarily or is unable to sell “by reason of absence or disability”, or where no-one can be found with power to negotiate a sale or agree upon a price, or where the vendor is unable to make good title;31

for building Warehouses upon, and to make a new Street from Petticoat Lane to White Street, instead of Gravel Lane in Petticoat Lane”. 27 The company’s existing landholding (and warehousing) lay between New Street (near Bishopsgate Street) to the north, Petticoat Lane to the east, Harrow Alley to the south, and various houses and grounds in White Street and Cutler Street to the west, all in the parish of St. Botolph Aldgate. This site was “intersected almost through the centre” by Gravel Lane, running from Petticoat lane to Harrow Alley, which “publick lane, passage, or highway” was “exceeding inconvenient for carriages” because of its width and its winding configuration: preamble to the warehousing Act. 28 The warehousing Act, preamble and s 1. The land was owned by one Joseph Sibley and his wife. 29 The warehousing Act, preamble and s 1. The company would, at its own expense, provide a tranche of land for the new street (running from Petticoat Lane to White Street, near Houndsditch) and acquire (for the western end) buildings and land owned by “the Master, Wardens, and Commonalty of the Mystery of Cutlers within the Liberty of the City of London, and by them leased to divers tenants”, together with “a certain vacant piece of ground” leased to the Revd. Josiah Thompson (which latter parcel was for the company’s own use): ibid. Specific parliamentary authority was required because (a) the lands in question were subject to trusts which would need to be overridden, or were vested in persons with insufficient legal capacity to sell and convey, and (b) closure and diversion of Gravel Lane involved interference with a public highway. The warehousing Act provided the authority and gave “sufficient” indemnity to the company and its officers, agents and contractors in respect of any claims made subsequently by the various vendors: ibid., s 1. The court of directors of the company was authorised to delegate to one of its committees power “to manage and transact” the project on its behalf: ibid., s 18. 30 The warehousing Act, s 2. The sales were only perfected once the relevant indenture had been enrolled in the court of hustings for the City of London within a time limit of six months and, once enrolled, the premises would vest in the company absolutely and with full legal effect: ibid., ss 2, 11. 31 The warehousing Act, s 3. In these circumstances, at the instigation of the company’s court of directors, the Lord Mayor’s Court was required to issue warrants to the city’s sheriffs to summon a jury who were to hear evidence on value and “assess and award” appropriate compensation (for which the court would then enter judgment). The court’s decision would be binding against all-comers, including

289 (e) to provide a mechanism for making payment for the land and transfer of title where the landowner is under a legal incapacity, refuses to execute the conveyance, or cannot make “clear title”;32

(f) to authorise the making of claims by individuals for recovery of the monetary value (with interest) of lands purchased by the company, subject to a limitation period of five years;33

(g) to require the company, “with all convenient speed” post-enactment, to complete the various land purchases and to construct the new highway (from Petticoat Lane, westwards along Harrow Alley, and then south down White Street) as a paved street with a minimum width of 16 feet;34

(h) to permit the company to exceed the maximum annual value statutorily prescribed for its land and property holding in Great Britain;35 and

“the King’s most Excellent Majesty, his heirs and successors”, and had to be entered on the court record which was to be available for public inspection: ibid., ss 3, 5. Provision was made for jurors and witnesses to be reimbursed their expenses and compensated for their time, the cost of which would fall solely on the company (although not in certain circumstances): ibid., s 4. The court was given power to fine any defaulting sheriff, bailiff, agent, juror or witness, or any other person who should “wilfully neglect” to perform their duty under the Act: ibid., s 14. 32 The warehousing Act, s 6. In these circumstances payment could be made into the Bank of England (under the direction of the High Court of Chancery), notice given as appropriate, and the company was then at liberty to take possession of the land and to hold it as “if the said premises were conveyed to them by all the persons entitled thereto, or interested therein, and such persons were competent to make such conveyances”: ibid. Where the acquired lands were previously held on trust or for charitable purposes, alternative lands were to be purchased and held under the same arrangements, subject to direction by the Chancery Court. Pending such purchase, in the case of charitable trusts, the sale proceeds were to be held in the Bank of England and invested in Government stock for the charity’s benefit, subject again to the Court’s direction: ibid., ss 8, 9. Occupiers of land were not to be dispossessed without six month’s prior notice, unless their terms “shall sooner determine by effluxion of time or otherwise”: ibid., s 7. In default of yielding possession at the due date, enforcement was to be effected by the city’s sheriffs acting on the court’s warrant. Specific statutory protection was also afforded to mortgagees of acquired land, who were, in essence, to be paid off with interest or (with their consent) re-secured: ibid., s 10. 33 The warehousing Act, s 12. This provision closely mirrors that in section 12 of the 1796 Act: see above. A “memorial” of the claim had to be entered in a register held by the town clerk of the City of London. If the claimant was successful, the company had a right of action against their vendor. Once the limitation period had expired, the company was entitled to retain quiet possession of the acquired parcel of land. As under the 1796 Act, a claimant was not precluded from bringing separate proceedings against a previous occupier for mesne profits: ibid., s 13. 34 The warehousing Act, s 15. The highway was to include within it a footway, at least 2 feet 6 inches wide, adjoining the carriageway. As with Lime Street (see above, under the 1796 Act), once the reconstruction works were complete, the obligation for future repair and maintenance was to pass to the body or authority “chargeable with the repairs of the publick streets in the said parish of Saint Botolph Aldgate”: ibid., s 16. Once the new highway had been constructed and dedicated the company was authorised to stop-up the former Gravel Lane, which would then vest in the company “as their own private property”: ibid., s 17. 35 The warehousing Act, s 19. This provision mirrors and repeats, almost identically, the lifting of the restriction by the 1796 Act, s 18, above.

290 (i) to lay down a limitation period for legal challenge in respect of “any thing done in pursuance of this [warehousing] Act”.36

Status of the warehousing Act of 1796 11. The warehousing Act’s sole purpose was to enable the East India Company to extend and make secure its warehousing complex within the City and, in so doing, to divert an inconvenient highway. The warehousing complex was situated some streets away from the site of the company headquarters.

12. The warehousing Act stood alone. Its existence did not depend on earlier legislation relating to the company’s functions, or on the previous Act of 1796. As with the 1796 Act, its reference to national legislation was restricted to the powers for summoning juries (in section 3) and to the mechanism available for making payments into court (in section 9).37

13. Gravel Lane still exists, situated between Middlesex Street and Houndsditch, in the City of London. The northern part of this lane was demolished in 1799 to facilitate the construction of the Cutler Street (or Cutlers Gardens) warehouses for the East India Company to store imported goods, principally tea. The warehouse complex eventually covered over 5 acres. On the demise of the East India Company the buildings were taken over by the St. Katharine’s Dock Company and, later, by the Port of London Authority. During the 1970s the warehouses were converted into office accommodation.38

14. Cutler Street (of today) was formed in 1906 from Cutlers Street and White Street (running south to Harrow Alley and Gravel Lane), both of which were in existence in 1746.39

36 The warehousing Act, s 20. As with the 1796 Act (above), any actions had to be commenced in the City of London within six months. If this were not complied with, actions would be barred and costs penalties would be imposed. 37 In the printed version of the warehousing Act, section 9 is wrongly shown as section 11, through the transposition of Roman numerals. 38 See: Middlesex Street: Conservation Area Character Summary (Corporation of London Department of Planning and Transportation, 2003), and http://www.portcities.org.uk/london/server/show/conMediaFile.4276/The-Cutler-Street-warehouses. 39 See H Harben A Dictionary of London (1918) at http://www.british- history.ac.uk/report.asp?compid=10283.

291 15. The East India Company was dissolved in 1874, and all ancillary powers vested in it to develop and acquire land would have evaporated at that time.

16. The warehousing Act of 1796 is now spent, and may be repealed in whole.

Extent 17. The greater part of each of the Acts of 1796 applies locally only within the City of London, in England (although section 18 of the earlier Act, and section 19 of the later Act, are expressed to apply also to Great Britain).

Consultation 18. The Foreign and Commonwealth Office, the Department for International Development, the Department of Trade and Industry, the City of London Corporation, Lloyd’s of London and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

32-195-453 LAW/005/016/06 01 February 2008

292 ______

Reference Extent of repeal or revocation ______

46 Geo.3 c.cxxxiii (1806) The whole Act. (East India Company and the Nabobs of the Carnatic Act)

50 Geo.3 c.cciii (1810) The whole Act. (East India Company and the Nabobs of the Carnatic Act)

52 Geo.3 c.clxxxviii (1812) The whole Act. (East India Company and the Nabobs of the Carnatic Act)

57 Geo.3 c.viii (1817) The whole Act. (East India Company and the Nabobs of the Carnatic Act)

59 Geo.3 c.xxvi (1819) The whole Act. (East India Company and the Nabobs of the Carnatic Act)

3 Geo.4 c.xviii (1822) The whole Act. (East India Company and the Nabobs of the Carnatic Act)

7 Geo.4 c.xli (1826) The whole Act. (East India Company and Creditors of the Nabobs of the Carnatic Act) ______

Background to the legislation 1. There were two types of territorial division in India between 1600 and 1947:40 the presidencies and the princely states. From the early 17th century, the English established presidencies in areas of India, the main three being Bombay, Madras and Calcutta. Originally, these were British trade enclaves dependent upon the Mughal emperor’s edict allowing foreign trade in India. As the East India Company grew stronger, these presidencies grew in power. They formed British India when direct rule was transferred to the Crown in 1858.

2. The presidencies were the main administrative areas, ruled by presidents at first, followed by governors and councils. They were made up of various princely

40 India achieved independence from British rule in 1947.

293 states. Muslim princely states were ruled by nawabs, or nabobs,41 whilst Hindu princely states were ruled by rajahs. The Madras presidency, also called the Carnatic region, was situated on the east coast of South India, and included the princely states of North and South Arcot and Tanjore. The rulers of these princely states nominally retained autonomy over their land, but amassing British debts and seeking British military protection inevitably turned them into vessels through which the British governed.

3. The nawabs of Arcot (or nabobs of the Carnatic) had sought the support of the British in the mid 18th century when the French had replaced Mohamed Ali Khan Walajan, then nawab, with their own candidate, Chanda Sahib. Sir Robert Clive arrived in the Carnatic in 1751 to provide assistance to the displaced nawab. By 1752, Clive had reinstated Mohamed Ali, reciprocally securing a new commercial market in the Carnatic.42

4. The nawab (or nabob) Mohamed Ali, became heavily indebted to the East India Company. The company had supported the nawab in the First Mysore War43 and in violent clashes with Tanjore.44 In order to repay his debts to the company, the nawab was forced to expropriate the state revenues and the revenues of vassal states under his power, for example, Tanjore. In February 1785 Edmund Burke,45 in a searing speech delivered to Parliament on the Nabob of Arcot’s debts, spoke of the nawab’s “dreadful resolution” to pour a “hurricane of war” on the central provinces of the Carnatic (and upon a people who already were suffering the terrible effects of famine), and of the Government’s complicity in that “tyranny sublimed into madness”.46 His principal thrust was against “the ministers at [the Speaker’s] right hand” who were seeking to facilitate loans based (he said) on their unrealistic “estimate of the revenues of the Carnatic”, so as to provide “not supply for the establishments of its protection, but rewards for the authors of its ruin”. The picture was one of “oppression…extortion and usury”.47 By offering to lend further moneys

41 An English corruption of the term “nawab”, which refers both to Indian rulers and to the company servants who acquired huge wealth in the Indies and returned to England to flaunt it. 42 See B Williams, The Whig Supremacy 1714-1760 (2nd ed 1962) p327. 43 1767-1769. 44 1771 and 1773. 45 b.1729-d.1797. An influential Whig MP and political philosopher, Burke championed liberal and reform causes, highlighting the responsibilities of Britain in the Empire, and bringing to light previously unpublicised injustices across the Empire. 46 Parliamentary History (1785) vol 25, cols 182-259. Burke records that the nawab’s principal opponent (Hyder Ali, of Mysore) fought back against the nawab once he had “terminated his disputes with every enemy and every rival, who buried their mutual animosities in their common detestation against the creditors of the nabob of Arcot”: ibid. 47 Ibid.

294 to the nawab, Burke felt that the company and the Government were condoning and encouraging the Nabob of Arcot’s exploitation of the country around him.

46 Geo.3 c.cxxxiii (1806) Purpose 5. In July 1805 the East India Company (which had by then taken over the collection and “administration of the revenues of the Carnatic Payen Ghaut”) entered into “articles of agreement” (“the 1805 agreement”) with various private creditors of the Nabobs of Arcot so as “to form a fund for the payment of all the just debts to private creditors remaining unsatisfied”.48 The 1805 agreement provided that the company would set aside annually a significant sum of money for the fund,49 from which the various creditors would be paid “in full satisfaction and discharge of all [their] claims and demands”, once such claims had been independently verified.50

6. The verification and apportionment process was to be overseen by three “commissioners and referees” who would operate in England, supplemented by the efforts of three similar appointed officers who would sit at Madras in India.51 The commissioners’ task was to investigate “the origin, justice, and amount of the several debts claimed to be due” and “the rights of such claimants to such debts”, with a view to establishing entitlement and apportionment.52 Administration of the claims process would be handled by two “registers of the debts of the Nabobs of Arcot” (ie. registrars), who were to be appointed by the creditors.53

48 Preamble to 46 Geo.3 c.cxxxiii (1806) (“the 1806 Act”), being “An Act for enabling the Commissioners acting in Execution of an Agreement made between the East India Company and the Private Creditors of the Nabobs of the Carnatic, the better to carry the same into Effect”. The debts concerned were those incurred by several members of the ruling family, all deceased by 1805: His late Highness the Nabob Wallah Jah (Nabob of Arcot and of “the Carnatic in the East Indies”), His late Highness the Nabob Omdut ul Omrah (the eldest son of Wallah Jah), and His late Highness the Ameer ul Omrah (the second son). 49 “the sum of Star Pagodas three lac forty thousand” (340,000 Star Pagodas) each year: the 1806 Act, preamble. 50 The 1806 Act, preamble. 51 The initial three English commissioners were named in the Act. The three commissioners in India were to be appointed by the Governor General of Fort William in Bengal (acting in Council), and drawn from “the covenanted civil servants of the said United Company on the Bengal establishment”: the 1806 Act, preamble. The commissioners were to be known as the Carnatic Commissioners (see the sidenote to section 9 of the 1806 Act). 52 The 1806 Act, preamble. Prior to undertaking this task, the commissioners were obliged to publish notices inviting persons resident in Europe, the East Indies and elsewhere, to submit claims, and then to publish schedules of claims made so as to afford an opportunity for “all such persons as should have any interest to oppose or impeach the same”: ibid. 53 The 1806 Act, preamble. One registrar was to be based in London, and the other in Madras. They were to maintain books of accounts setting out the sums awarded by the commissioners to different classes of creditor. The company had to approve the proposed appointments, and they were also entitled to dismiss those appointed.

295 7. The parties to the 1805 agreement recognised the need for legislative reinforcement to ensure “the due and faithful execution of the trusts reposed” in the commissioners. To this end, the 1806 Act was sought and obtained. In broad terms, the purpose of the 1806 Act was as follows:

(a) to place the commissioners (and their successors) on a formal footing;54

(b) to authorise the commissioners to receive evidence orally or by “written interrogatories”, supported by oath or affirmation (administered by the commissioners or the courts);55

(c) to authorise the commissioners (in England and in India) to compel witnesses to attend to give evidence,56 subject to reimbursing their costs and expenses;57

(d) to require the commissioners to present a report to Parliament at the beginning of each session, setting out a statement of the claims received in both England and India, and listing those claims which had been determined “either provisionally or absolutely”;58

(e) to provide a limitation period of six months for any legal action which might be commenced “for any thing done in pursuance of any of the [Act’s] provisions”;59 and

54 The 1806 Act, s 1. Each commissioner was obliged, on appointment, to be sworn into office, and to undertake to exercise his functions conscientiously in accordance with “the true intent and meaning” of the 1805 agreement and its signatories: ibid. 55 The 1806 Act, s 2. Evidence could be received orally in person or by written affidavit or deposition. Any person who should “wilfully and corruptly give false evidence, or make any false answer, statement, or deposition” was liable to be punished for perjury: ibid., s 3. 56 The 1806 Act, ss 4, 5. The commissioners (or any two of them) could issue a “precept” or summons requiring personal attendance and production of documentation. The precept was to be endorsed with an indication of who (commissioners or parties) had sought the attendance. Wilful avoidance, absconding, defaulting to appear or produce relevant documents, or failing to be sworn or to testify, could lead to imprisonment “without bail or mainprize” pending the witness submitting to the tribunal: ibid., s 6. However, no-one in the United Kingdom or India could be required to leave their jurisdiction to appear before commissioners: ibid., s 7. 57 The 1806 Act, s 8. Witnesses were entitled to be reimbursed the cost of attending and to receive “a reasonable compensation for his or her loss of time”, which moneys were to be paid before the appointed day. The bill was to be footed by the party seeking attendance or, where attendance was required by the commissioners themselves, by the company. Costs were to be quantified and awarded by the commissioners where there was dispute between the parties: ibid. 58 The 1806 Act, s 9. The grounds for determination were also to be specified. Section 9 made clear on its face, however, that the 1806 Act was not to be taken as in any way ratifying or confirming the 1805 agreement, or extending its ambit. 59 The 1806 Act, s 10.

296 (f) to provide that the greater part of the 1806 Act, which vested powers in the commissioners, was time-limited and would “continue in force” until 1 August 1810.60

Status of the 1806 Act 8. The purpose behind the 1806 Act was very narrow: to obtain Parliamentary sanction for the appointment of commissioners to resolve disputes relating to the Carnatic debts, and to provide them with powers of inquiry and determination. The East India Company was at that time responsible for the administration of the revenues of the Carnatic Payen Ghaut, through its treasury based in neighbouring Madras.

9. Although the 1806 Act stemmed from a private agreement executed in July 1805, in legislative terms it stood on its own. It did not rely on, or refer to, other legislation. The Act did not purport to extend or modify the terms of the 1805 agreement.

10. The powers vested in the appointed commissioners by the 1806 Act were specifically time-limited.61 That time limit was subsequently extended by later continuation Acts (see below), but the latest time limit has long since expired.

11. The East India Company, one of the parties to the 1805 agreement, was dissolved in 1874.

12. The 1806 Act is now spent, and may be repealed in whole.

Purpose of the continuation Acts 50 Geo.3 c.cciii (1810) 13. The powers conferred on the appointed commissioners by the 1806 Act (above) lapsed in 1810 (either in August of that year or, at latest, by “the end of the then next session of Parliament”).62

60 The 1806 Act, s 12. The commissioners’ powers were allowed to continue in force beyond the stated date, but only up “until the end of the then next session of Parliament”: ibid. The remaining provisions of the 1806 Act (such as the limitation period for challenging decisions) lasted indefinitely. 61 The 1806 Act, s 12. 62 The 1806 Act, s 12.

297 14. Because it was “expedient, that the time during which the said powers and authorities should continue in force, should be enlarged”, and in order to keep the commissioners’ powers alive, the first of a series of six continuation Acts was passed in June 1810.63 The 1810 Act “continue[d] in force” the powers vested in the commissioners (both present and future, and both in England and in India) for a further period of almost three years.64

52 Geo.3 c.clxxxviii (1812) 15. The 1812 Act65 continued the powers in the 1806 Act for a further four years from July 1812 until 1 August 1816 “and from thence until the end of the then next session of Parliament”.66

57 Geo.3 c.viii (1817) 16. The 1817 Act67 extended “the time during which the powers and authorities given by the [1806] Act were to continue” until 1 August 1818 “and from thence to the end of the then next session of Parliament”.68 This extension amounted to an additional two years of authorisation.

59 Geo.3 c.xxvi (1819) 17. The 1819 Act69 continued in force the powers and provisions of the 1806 Act until 1 August 1821 “and from thence to the end of the then next session of Parliament”.70 This extension amounted to an additional three years of authorisation.

63 Preamble to 50 Geo.3 c.cciii (1810) (“the 1810 Act”), being “An Act to continue until the Twenty-fifth day of March One thousand eight hundred and thirteen, the Powers of the Commissioners appointed in pursuance of an Act of the Forty-sixth Year of His present Majesty [1806], for enabling the Commissioners acting in pursuance of an Agreement between the East India Company and the private Creditors of the Nabobs of the Carnatic, the better to carry the same into Effect”. According to the entry in the Chronological Table of Local Legislation, this Act was repealed in part by the Commercial Docks Act 1817 (57 Geo.3 c.lxii). This seems to be an error. The Commercial Docks Act 1817 specifically repealed the Commercial Docks Act 1810 (50 Geo.3 c.ccvii), not the 1810 Act to which we refer. 64 The 1810 Act, s 1. The extended powers were expressed to lapse on 25 March 1813. 65 Preamble to 52 Geo.3 c.clxxxviii (1812) (“the 1812 Act”), being “An Act for further continuing, until the First Day of August One thousand eight hundred and sixteen, and from thence until the End of the then next Session of Parliament, the Powers of the Commissioners appointed in pursuance of an Act of the Forty-sixth Year of His present Majesty, for enabling the Commissioners acting in pursuance of an Agreement between the East India Company and the private Creditors of the Nabobs of the Carnatic, to carry the same into Effect”. 66 The 1812 Act, s 1. This continuation formula was the same as that used in the original 1806 Act, and reverted to the August anniversary. 67 57 Geo.3 c.viii (1817) (“the 1817 Act”), being “An Act for further continuing until the First Day of August One thousand eight hundred and eighteen, and from thence to the End of the then next Session of Parliament, the Powers given by an Act of the Forty-sixth Year of His present Majesty, for enabling the Commissioners acting in Execution of an Agreement made between the East India Company and the private Creditors of the Nabobs of the Carnatic, the better to carry the same into Effect”. 68 The 1817 Act, preamble and s 1. 69 59 Geo.3 c.xxvi (1819) (“the 1819 Act”), being “An Act for further continuing, until the First Day of August One thousand eight hundred and twenty-one, and from thence to the End of the then next

298 3 Geo.4 c.xviii (1822) 18. The 1822 Act71 continued in force the powers of the commissioners for a further four years until 1 August 1825 “and from thence to the end of the then next session of Parliament”.72

7 Geo.4 c.xli (1826) 19. The 1826 Act73 continued in force the powers in the 1806 Act until 1 August 1829 “and from thence to the end of the then next session of Parliament”.74 This added a further, and final, period of four years.

Status of the continuation Acts 20. The continuation Acts were each very brief. Each Act consisted of a preamble (reciting the legislative history) and two further sections. Section 1 continued the powers in the 1806 Act for the period specified, while section 2 was an evidential provision deeming the Act to be a “publick Act”.

21. The sole purpose of each continuation Act was to continue in force for a further finite term the powers specifically vested in the Carnatic commissioners. Those powers were time-limited from the 1806 Act onwards. The ancillary provisions in the 1806 Act, such as the limitation period for legal proceedings, were not time- limited.

22. The 1826 Act was the final continuation Act, and the extension period under that Act has long since expired. All the continuation Acts relied on the 1806 Act, and the 1805 agreement, for their existence.

Session of Parliament, the Powers granted by an Act of the Forty-sixth Year of His present Majesty, for enabling the Commissioners acting in Execution of an Agreement made between the East India Company and the private Creditors of the Nabobs of the Carnatic, the better to carry the same into Effect”. 70 The 1819 Act, preamble and s 1. 71 3 Geo.4 c.xviii (1822) (“the 1822 Act”), being “An Act for continuing, until the First Day of August One thousand eight hundred and twenty-five, and from thence to the End of the then next Session of Parliament, the Powers granted by an Act of the Forty-sixth Year of His late Majesty, for enabling the Commissioners acting in Execution of an Agreement made between the East India Company and the private Creditors of the Nabobs of the Carnatic, the better to carry the same into Effect”. 72 The 1822 Act, preamble and s 1. 73 7 Geo.4 c.xli (1826) (“the 1826 Act”), being “An Act for further continuing, until the First Day of August One thousand eight hundred and twenty-nine, and from thence to the End of the then next Session of Parliament, the Powers granted by an Act of the Forty-sixth Year of His late Majesty, for enabling the Commissioners acting in execution of an Agreement made between the East India Company and the private Creditors of the Nabobs of the Carnatic, the better to carry the same into effect”. 74 The 1826 Act, preamble and s 1.

299 23. The East India Company, one of the parties to the 1805 agreement, was dissolved in 1874.

24. The continuation Acts are now spent, and may be repealed in whole.

Extent 25. The 1806 Act, and the six continuation Acts running from 1810 to 1826, applied to the United Kingdom (although in the main, only to England) and to the province of Madras, now the state of Tamil Nadu, in India.

Consultation 26. HM Treasury, the Foreign and Commonwealth Office, the Department for International Development, the Department of Trade and Industry and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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300 ______Reference Extent of repeal or revocation ______5 Geo.4 c.cxvii (1824) The whole Act. (East India Company and the Rajah of Tanjore Act)

11 Geo.4 & 1 Will.4 c.xxxiii (1830) The whole Act. (East India Company and Rajah of Tanjore Act) ______

Background to the legislation 1. The princely state of Tanjore was located on the east coast of South India within the presidency of Madras. Tanjore was a Maharatta state originally ruled over by a Hindu rajah, and became a British protectorate in 1793.

2. His Highness the Rajah Ameer Sing reigned in Tanjore between 1793 and 1798. After the wars with the nawab of Arcot in 1771 and 1773, the rajah, his state and the state revenues were under the control of the nawab of Arcot. This continued until Tanjore was annexed to British India in 1799.75

3. During his reign, the Rajah of the state of Tanjore (His late Highness Ameer Sing) had incurred debts to several (unnamed) creditors.76

5 Geo.4 c.cxvii (1824) Purpose 4. By 1824 the debts remained outstanding. The East India Company was responsible for collecting the revenues due to the Rajah of Tanjore. Various creditors (or claimants) had entered into articles of agreement, in February of that year, with the East India Company, to the effect that a mechanism would be put in place to adjudicate upon the validity of the claims (which would then be submitted to the company for payment from a specially appointed fund).77

75 When Serfoji II ascended the throne in 1799 he transferred the sovereignty of Tanjore absolutely to the East India Company, who administered the area as a subsidiary of the British Crown. He retained title to the capital of Tanjore, and a small stretch of land surrounding it. Rajah Serfoji II died in 1833 and was succeeded by his son, Sivaji. For further information about Tanjore see http://en.wikipedia.org/wiki/Thanjavur and P Lawson, The East India Company: A History (1993). 76 The purpose of these debts, which may have encompassed more than loans, is not specified on the face of the relevant legislation. 77 The agreement was dated 11 February 1824: see preamble to 5 Geo.4 c.cxvii (1824) (“the 1824 Act”), being “An Act for enabling the Commissioners acting in Execution of an Agreement made between the East India Company and the private Creditors of His late Highness Ameer Sing, formerly Rajah of Tanjore, deceased, the better to carry the same into effect”.

301 5. The arrangement involved the appointment of six commissioners (three in England and three in India) who were charged with identifying the claimants, reviewing the claims and then determining which claims should be eligible for payment. The 1824 agreement laid out the following rubric:

(a) the various creditors were to be entitled to claim for the principal sums owed in respect of “good, just, valid, and valuable considerations”, together with simple interest accrued “from the time when such debts were severally contracted”;78

(b) the claims had to be capable of being settled by the company drawing “transferrable bonds or certificates, to be issued by the Madras Government”;79

(c) three named individuals were to be the first commissioners based in England, and “in order to the more complete investigation of the matters thereby submitted” to them, their efforts were to be supplemented by three “commissioners and referees in India” sitting at Madras;80

(d) the commissioners were required to publish notices, both in Europe and in the East Indies, inviting submission of claims by creditors. The claims would then be scheduled and made available to the company so as to afford it “liberty to dispute and oppose” the debts as appropriate. In addition, the parties were allowed time to advance their cases “by argument or proof”;81

78 As recited in the preamble to the 1824 Act. Interest was to cease running as at 30 April 1823, and the amounts claimed were to be net of any payments already received. 79 The 1824 Act, preamble (and art 1 of the agreement). The bonds or certificates were to carry interest of 4% p.a., running from 30 April 1823, but only “so long as the revenues of Tanjore should continue to be in the possession of the said United Company”: ibid. 80 The 1824 Act, preamble (and arts 2, 3 of the agreement). The three Indian-based commissioners were to be appointed “from amongst the covenanted civil servants of the said United Company on the Bengal establishment” by the Governor General of Fort William in Bengal (acting in council): ibid. 81 The 1824 Act, preamble (and art 5 of the agreement). Proof could be adduced orally, by “examination on written interrogatories”, by affidavit and by production of documents. By article 8 of the agreement the Indian commissioners were required to make the submitted claims schedule available to the Madras Government (via the Governor in Council of Fort Saint George) for objection. The Indian commissioners were to act in identical manner to the English commissioners, and were to investigate and “to decide finally on every claim so to be preferred to them” (including those referred by their English counterparts), but only in respect of those claims where the original principal sum did not exceed 1,000 rupees.

302 (e) the company was entitled to lay down a limitation period after which the lodging of further claims would be barred;82

(f) once the total debts had been established, the company was obliged to draw down from the Tanjore revenues (“from time to time [but only] so long as they should remain in possession of the said United Company”) sufficient sums as would cover the payment of interest and discharge of the principal secured by the bonds and certificate;83 and

(g) in return for these arrangements, the various creditors would accept the company’s “covenants and engagements…in full satisfaction and discharge of all claims and demands whatsoever” which they had against the Rajah of Tanjore.84

6. So as to formalise and reinforce the processes within the agreement, the 1824 Act was promoted to provide the appointed commissioners with enforceable powers and to ensure their diligent execution.

7. The purpose of the 1824 Act was (in broad terms) to provide that:

(a) all commissioners were, on appointment, to take an oath of office by which they undertook to carry out their functions “faithfully, impartially, and truly”;85

(b) the commissioners were to be empowered to take sworn evidence, both orally and in writing;86

(c) the commissioners be empowered to issue a “precept” to summon a witness to give evidence and produce relevant documents;87

82 The 1824 Act, preamble (and art 9). This limitation period was to be notified by the company to the commissioners in England. 83 The 1824 Act, preamble (and art 10). Annual payments (equal to 5% of the total principal sum outstanding) were to go into an accumulating sinking fund which would be used for eventual discharge of the principal, with simple interest at 4% p.a. 84 The 1824 Act, preamble (and art 16). 85 The 1824 Act, s 1. This requirement applied to the commissioners sitting both in England and in India. 86 The 1824 Act, s 2. The giving of false evidence by a witness was to amount to perjury, punishable by law: ibid., s 3. 87 The 1824 Act, s 4. A witness “precept” (summons) could be issued by the commissioners at their own behest, or on the application of any party with an interest in the matter before them. The summons had to state on whose motion it was issued: ibid., s 5. No-one in the United Kingdom or India could be required to leave their jurisdiction to appear before commissioners: ibid., s 7. Any individual summoned

303 (d) the English commissioners should place before each session of Parliament a schedule of claims received and of those adjudicated upon;88

(e) legal proceedings for any cause arising under the 1824 Act were to be commenced within six months of that occurrence, after which they would be time-barred;89 and

(f) finally, that the powers vested in the commissioners by the 1824 Act were to continue in force until 1 August 1828 “and from thence until the end of the then next session of Parliament”.90

Status of the 1824 Act 8. The 1824 Act was promoted in order to underpin the provisions of the agreement signed with the known creditors in February of that year. Apart from reciting terms within that agreement it did not refer to any other provision, statutory or non-statutory.

9. The powers vested in the English and Indian commissioners by the 1824 Act were specifically time-limited.91 That time limit was extended by subsequent legislation, but even the additional period has long since expired.

10. The East India Company, one of the parties to the 1824 agreement, was dissolved in 1874.

11. The 1824 Act is now spent, and may be repealed in whole.

who wilfully failed to appear or to produce documents, or refused to be sworn, was liable to be arrested and held in prison “without bail or mainprize” until they submitted to the commissioners’ jurisdiction: ibid., s 6. A summoned witness was entitled to be reimbursed both for the costs of their attendance and for their loss of time (to be borne by either the company or the instigating party): ibid., s 8. 88 The 1824 Act, s 9. The list of claims was to include those received in England and in India, and the determinations were to include “the grounds of their decision”: ibid. This requirement, and the 1824 Act itself, were not to be construed as in any way ratifying, or broadening the scope of, the original 1824 agreement. 89 The 1824 Act, s 10. 90 The 1824 Act, s 12. 91 The 1824 Act, s 12.

304 11 Geo.4 & 1 Will.4 c.xxxiii (1830) Purpose 12. The powers conferred on the English and Indian commissioners by the 1824 Act expired by effluxion of time in 1829.

13. By 1830 it had become clear that the period of authorisation, “which has now expired, should be renewed and further continued”.92 In order to rectify this lapse, a continuation Act was secured in 1830. The 1830 Act simply “renewed and continue[d] in force” the powers until 1 August 1833 and “from thence to the end of the then next session of Parliament”.93

Status of the 1830 Act 14. The 1830 Act comprised only a preamble and two short sections.94

15. The Act’s sole purpose was to keep alive, for a finite period, the powers vested in the commissioners by the original 1824 Act. This it did, but the extended period has now long since expired.

16. No further legislation was promoted to extend the life of the 1824 Act powers.

17. The East India Company was dissolved in 1874.

18. The 1830 Act is now spent, and may be repealed in whole.

Extent 19. The 1824 and 1830 Acts applied to the United Kingdom (although, in the main, only to England) and to the province of Madras, now the state of Tamil Nadu, in India.

92 Preamble to 11 Geo.4 & 1 Will.4 c.xxxiii (1830) (“the 1830 Act”), being “An Act to continue An Act of the Fifth Year of His present Majesty, for enabling the Commissioners acting in execution of an Agreement made between the East India Company and the private Creditors of the late Rajah of Tanjore the better to carry the same into effect”. 93 The 1830 Act, s 1. Given the loose wording of the section, it may well be that its effect was to provide the commissioners, over the short period of lapse, with retrospective authorisation. 94 The preamble recited the existence and purpose of the 1824 Act (above). Section 2 of the 1830 Act was a deeming provision only, to the effect that the Act was to be treated for court evidence purposes as “a public Act” (ie. self-producing).

305 Consultation 20. HM Treasury, the Foreign and Commonwealth Office, the Department for International Development, the Department of Trade and Industry and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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306 ______Reference Extent of repeal or revocation ______2 & 3 Will.4 c.cxii (1832) The whole Act. (East India Company Act) ______

Background to the legislation 1. The zamindars (or zemindars) were holders of local land interests who took on police, judicial and military duties. They were answerable to the ruler of the state or region where their interests were located. The scope of their duties was determined by the size of the landholding which supported their interests. The land itself was owned by the raiyats (peasants) but the zamindars held a proprietary interest in the revenue from the land. They collected the rent and passed it to the government.95

2. The zamindari continued to be used as the main system of tax collection by the British in colonial India. After independence, the zamindari was abolished as a practical tool, but the titles were retained.

3. In the “presidency of Madras”,96 the Zemindar of Nozeed and Mustaphanagur (the late Macca Narsinva Opparow) had, prior to 1776, become indebted to one James Hodges (and others) by loans which “the better enabled [him] to pay the tribute and kists due from the said Zemindar to the United [East India] Company”.97

2 & 3 Will. 4 c.cxii (1832) Purpose 4. By 1832 the loan debt remained unpaid. James Hodges had died in September 1794, leaving his grandson (Captain James Murray, Royal Navy) as personal representative for the estate to pursue the claim. That claim was made against the East India Company because of that body’s earlier sequestration (in

95 See http://banglapedia.search.com.bd/HT/Z_0009.htm. 96 Presidencies were formed within the regions of India under direct English rule. In Madras, the region was governed by a president and council. Sub-regions (such as Masulipatam) were governed by a chief and council. 97 Preamble to 2 & 3 Will. 4 c.cxii (1832) (“the 1832 Act”), being “An Act for providing for the Discharge of a Claim in respect of Monies advanced by the late James Hodges Esquire on Security of the Lands of the late Zemindar of Nozeed and Mustaphanagur in the District of Fort Saint George in the East Indies, now under the Government of the Honourable the East India Company”.

307 1779) of the zemindary’s assets “on account of large alleged arrears of tribute then due to the said company”.98

5. In November 1784, the president and council of Madras had ordered the chief and council of Masulipatam to require the zemindar’s creditors to release the security for their debts. In return for this the president and council were “willing to recommend” to the company that the creditors be reimbursed their loans. These reimbursements were to be subject to the company’s position as superior creditor being adequately protected. The various creditors’ loans had been secured by mortgage on “districts” owned by the zemindar.99

6. Acting on the assurances received, in December 1784 James Hodges surrendered the various villages he held, and rendered an account for the balance of his loan then outstanding (being 58,955 Madras pagodas and 25 fanams), which the president and council endorsed. The company took over management of the villages.

7. In February 1785, the Madras presidency advised the Masulipatam council and James Hodges that, because the “heavy balance” due to the company had yet to be discharged, the creditors would have to wait before the recommendation could be considered by the “said governor and council”.100 Hodges applied to the company in April 1792 for restitution of the villages or compensation in lieu, but he was refused on both counts (as, subsequently, were his widow and representatives).101

8. By 1803, with the “introduction of the permanent settlement of the landed revenues into the presidency of Madras”, the Opparow family were restored to the zemindary, and the company relinquished its claim for “all arrears of revenue up to that time”.102

98 The 1832 Act, preamble. 99 The 1832 Act, preamble. The president and council had calculated that the Nozeed zemindary was practically insolvent. It would take up to twelve years for the zemindary to “discharge the public demands on it”, taking into account the need to make provision for the zemindar’s son and for the “annual tribute”: ibid. 100 The 1832 Act, preamble. The reference to “the said governor” in the text seems to be an error; presumably the draftsman meant “the said president”. 101 They also made representation to the Commissioners for the Affairs of India, without success. Eventually the claims became time-barred, denying them any relief through the courts. 102 The 1832 Act, preamble.

308 9. After nearly forty years of haggling, the company, in its “political capacity”, recognised (notwithstanding the 1803 settlement) that there was a legitimate expectation that the loans originally “sanctioned by their government” should be repaid, on the basis of the 1784 account.

10. To this end, the 1832 Act was promoted to provide authority for the East India Company to pay the amount due to the personal representative from the revenues received from the zemindary.103 That payment was stipulated to be made “in this country” (ie., in England), by July 1833, at an exchange rate of eight shillings per pagoda.104

Status of the 1832 Act 11. The 1832 Act was a very short piece of legislation, designed solely to sanction the settlement of a long-standing financial dispute. Although the Act recited specific understandings and events, in legislative terms it stood alone.

12. Authority for the making of payment by the East India Company expired by mid-July 1833. It was not extended by later legislation.

13. The East India Company was dissolved in 1874.

14. The 1832 Act is now spent, and may be repealed in whole.

Extent 15. The 1832 Act applied to England and to the province of Madras, now the state of Tamil Nadu, in India.

Consultation 16. HM Treasury, the Foreign and Commonwealth Office, the Department for International Development and the Department of Trade and Industry have been consulted about these repeal proposals.

32-195-453 LAW/005/016/06 01 February 2008

103 The 1832 Act, preamble and s 1. 104 The 1832 Act, s 2. The time limit for payment was expressed to be “within one year from the passing of this Act”: ibid. The Act received Royal Assent on 11 July 1832. The remaining section of the Act (s 3) simply deemed it a public Act for the purpose of any judicial proceedings.

309 PART 5

LONDON

GROUP 1 – POOR RELIEF

______

Reference Extent of repeal or revocation ______

10 Geo.3 c.79 (1770) The whole Act. (Holborn Poor Relief Act)

10 Geo.3 c.80 (1770) The whole Act. (Holborn Poor Relief Act)

14 Geo.3 c.75 (1774) The whole Act. (Southwark Workhouse Act)

38 Geo.3 c.xxxiv (1798) The whole Act. (St Sepulchre’s Workhouse Act)

39 Geo.3 c.iv (1799) The whole Act. (St Bride Fleet Street Poor Relief Act)

46 Geo.3 c.xvi (1806) The whole Act. (St Sepulchre City of London Poor Relief Act)

59 Geo.3 c.xv (1819) The whole Act. (Wapping Workhouse Act)

7 Geo.4 c.cxiv (1826) The whole Act. (St Bride Fleet Street Poor Relief Act) ______

London Poor Law

Introduction

1. The Acts identified in this note for repeal are relics of the “Old Poor Law” as it operated in London. By “Old Poor Law” is meant the parish-based poor law relief arrangements that existed before the implementation of the Poor Law Amendment Act 1834. These arrangements applied not just in London but throughout England and Wales as a whole. “London” in this sense covers parishes both within and without the Cities of London and Westminster, including parishes falling within the then county of Middlesex. The Acts identified in this note were enacted for the purpose of providing for the needs of the poor, particularly by providing the necessary powers to raise money from the inhabitants of the parish to build a

310 workhouse to contain the poor.1 The Acts have long ceased to serve any useful purpose and their repeal is proposed on that basis.

Background 2. The origin of the Old Poor Law can be traced to enactments passed in 1597 and 1601.2 The 1601 Act, which amended the 1597 Act, obliged each parish to relieve the aged and the helpless, to bring up unprotected children in habits of industry, and to provide work for those capable of it but lacking their usual trade. The Act established the parish as the administrative unit responsible for poor relief, with churchwardens or parish overseers collecting poor-rates and then allocating relief, usually in the form of bread, clothing, fuel, the payment of rent, or cash. The poor- rate was originally a form of local income tax, but it gradually evolved into a property tax based on the value of a person’s real estate.

3. Examples of early parish workhouses can be found in London (around 1650),3 Chichester (around 1681), Bristol (1696), Witham (1714) and Mildenhall (1720). Many more workhouses were set up following an Act of 17224 which was known as Knatchbull’s Act.5 This enabled workhouses to be established either by individual parishes or in combination with neighbouring parishes. A further purpose of the Act was to ensure that the prospect of the workhouse should act as a deterrent and that relief should be available only to those who were prepared to enter the workhouse. About 700 workhouses were estimated to be in operation in 1732. By 1777, a Parliamentary survey of poor law expenditure in England and Wales estimated that the number of parish workhouses had risen to 1873 (approximately one parish in seven) with a total capacity of over 90,000 places.6

4. Not every workhouse was run by the parish itself. The work was sometimes contracted out to a third party who would feed and house the poor, charging the parish a weekly rate for each inmate. The contractor would provide the inmates with

1 Although people needing assistance from the parish were generally categorised as “the poor”, poverty was not the only issue. Old age, illness, disability and unemployment were other issues. Moreover, the workhouse was not the only form of relief available from the parish. Assistance often took the form of “out relief” – that is, money, food or medical assistance provided while people continued to live in their own homes. Equally they might have been treated for illness in the workhouse infirmary or in the county lunatic asylum. Children of poor parents were brought up and educated in Poor Law schools and, in due course, apprenticed or placed in service. 2 39 Eliz.1 c.3 (1597); 43 Eliz.1 c.2 (1601). 3 The London Corporation of the Poor was set up in 1647 to erect workhouses and houses of correction, enforce the law against vagabonds and set the poor to work. 4 9 Geo.1 c.7. 5 Sir Edward Knatchbull, MP for Kent, promoted this enactment.

311 work, any income thereby generated being kept by him. This system was known as “farming the poor”.

5. In 1832 the Government appointed a Royal Commission to review the existing arrangements for poor relief. This was at least partly in response to growing dissatisfaction with the current system, not least from the land-owning classes who carried much of the poor-rate burden. The Royal Commission reported7 in 1834 making a number of recommendations that resulted in the Poor Law Amendment Act 1834.8

6. The 1834 Act established a new poor law system. A Poor Law Commission was set up to administer the new system. It divided the 15,000 or so parishes of England and Wales into new administrative units called “Poor Law Unions”,9 each run by a locally elected Board of Guardians who took over responsibility for poor relief in that Union area. The funding of each Union and its workhouses continued to be provided by the local poor rate within each parish. It was, however, only with the passage of the Metropolitan Poor Act 186710 that all London parishes were required to come under the control of Boards of Guardians. This Act established the Metropolitan Asylums Board which was given responsibility for the care of London’s sick poor. The Poor Law Commission was abolished and replaced by a new Poor Law Board in 184711 which itself was replaced by the Local Government Board in 1871.12 The Local Government Board also had responsibilities relating to sanitation and public health.

7. The workhouse system continued until well into the twentieth century. In 1913, the terminology was changed so that workhouses became known as “poor law

6 Report from the Committee appointed to inspect and consider the returns made by the Overseers of the Poor, 15 May 1777. 7 Royal Commission on the Administration and Practical Operation of the Poor Laws. Administration and Practical Operation of the Poor Laws, 1834 Sessional Papers, vol xxvii, number 44. 8 4 & 5 Will.4 c.76. 9 “Union” meant union of a group of parishes, with each Union operating one or more workhouses in that Union area. 10 30 & 31 Vict. c.6. 11 The Poor Law Board Act 1847 (10 & 11 Vict c.109) abolished the Poor Law Commission and allowed the appointment of members of the new Poor Law Board. Problems with the Poor Law Commission had been brought to the public’s attention by the Andover Scandal in 1845. The scandal revealed systematic abuses of paupers which had gone unnoticed for a considerable number of years, and may have been encouraged by the Poor Law Commission’s permissive attitude to its institutions. The Poor Law Board was intended to exercise greater control, and prevent these problems happening again. See A Brundage, The English Poor Laws, 1700-1930 (2002) Palgrave. 12 The Local Government Board Act 1871 (34 & 35 Vict c.70) established the Local Government Board which was to be responsible for supervising the laws relating to public health, local government, and the

312 institutions”. It was only on 1 April 1930, when the Local Government Act 1929 came into force, that Boards of Guardians and Poor Law Unions were abolished, their functions being transferred to local government. In the case of London, the functions of the 25 London Boards of Guardians were transferred to the London County Council, responsibility for the poor and destitute passing to new local Public Assistance Committees.

10 Geo.3 c.79 (1770) (Holborn Poor Relief Act) 10 Geo.3 c.80 (1770) (Holborn Poor Relief Act) 8. These two 1770 Acts both relate to the financing of two new workhouses in the Holborn area of London. Both Acts were cast in broadly similar terms to provide near identical powers to raise the necessary finance and operate the workhouses.

9. According to their long titles, the purposes of the Acts were- (a) in the case of 10 Geo.3 c.79, to enable the parishioners of St Andrew, Holborn in the City of London to purchase a workhouse; and (b) in the case of 10 Geo.3 c.80, to build a workhouse for the Liberty of Saffron Hill, Hatton Garden and Ely Rents, in the Parish of St Andrew, Holborn in the county of Middlesex.13

10. The two Acts provided for the following matters14- (a) appointment of trustees for carrying out the purposes of the Acts, arrangements for meetings of trustees and provisions for appointing new trustees (b) in the case of 10 Geo.3 c.79, to purchase an existing workhouse that had recently been erected by one John Payce (c) in the case of 10 Geo.3 c.80, to acquire land and erect a new workhouse on it (d) trustees were empowered to levy annual rates on all property owners and occupiers in the parish to pay for the workhouse; and enforcing the collection and payment of these rates (e) power to raise money for the workhouse by sale of annuities

relief of the poor. Upon the establishment of the Local Government Board, the Poor Law Board would cease to exist, and all its powers and duties were to vest in the newly formed Local Government Board. 13 The reason for two Acts being necessary in respect of the Parish of St Andrew Holborn was that the parish spanned the boundaries between the City of London and the county of Middlesex. Today the parish falls within the London Borough of Camden. 14 These following matters are not identified by reference to section numbers because neither Act was divided into sections.

313 (f) appointment of officials to collect the rates; and (g) provision for penalties, appeals and procedural matters.

11. Both workhouses subsequently became part of Poor Law Unions. The parish of St Andrew in the City of London became part of the West London Poor Law Union in December 1837, whilst the Liberty of Saffron Hill, Hatton Garden and Ely Rents became part of the Holborn Poor Law Union in April 1836. The workhouse for St Andrew Holborn in the City of London was situated in Shoe Lane until around 1826 when the site was redeveloped as Farringdon Market. The workhouse for the Liberty of Saffron Hill, Hatton Garden and Ely Rents was situated just off Little Saffron Hill, near the junction with Ray Street. It is not clear exactly when this workhouse closed; it was not in use when the Liberty joined the Holborn Poor Union in 1836.

14 Geo.3 c.75 (1774) (Southwark Workhouse Act)

12. According to its long title, the purpose of this 1774 Act was “for enlarging the present, or providing a new Workhouse, for the Use of the Parish of Saint Saviour Southwark, and for regulating the Poor in such Workhouse; for widening King Street, at the Entrance into the High Street, Southwark; for making a Carriage Way from the said High Street, through the Greyhound Inn, into Queen Street, and for improving the Passage from thence into Gravel Lane, leading towards the Black Friars Bridge Road, in the Parish of Christ Church”.

13. Accordingly this 1774 Act had two main purposes. One was to provide for, or enlarge, the workhouse in Southwark.15 The preamble recorded that the number of poor people in the parish of St Saviour in Southwark had increased so greatly in recent years that the present workhouse was unable to contain them without being enlarged or replaced by a new one. The other purpose was to build or improve the highways in Southwark. Thus the preamble also recorded that it would be a great public convenience if “a Commodious Carriage-way was opened from the Eastern Parts of Southwark, to communicate with the Road leading from Saint George’s Fields to Black Friars Bridge”, but this could not be done without power to demolish houses and premises in King Street, in the High Street, and in Queen Street and Duke Street.

15 The St Saviour’s workhouse was originally built in Maid Lane in 1728.

314 14. Accordingly the 1774 Act provided for the following matters16- (a) appointment of trustees for carrying out the purpose of the Act, arrangement for meetings of trustees and provisions for appointing new trustees (b) appointment of treasurer, clerks and collectors of rates and payment of salaries (c) duties of collectors to account for the rates money (d) trustees empowered to rebuild or enlarge the existing workhouse, or demolish it, purchase new land and build a new workhouse (e) punishing any misbehaviour by workhouse inmates (f) keeping of deserted children or the wandering poor in the workhouse (g) annual election of overseers of the poor (h) trustees empowered to acquire and demolish premises in King Street, in the High Street and in Queen Street and Duke Street in order to construct the new highway; compensation to be settled by jury if need be; secured lenders to be paid off; any surplus land to be disposed of (i) power to raise money for the workhouse/highway works by sale of annuities, and the arrangements for servicing those annuities (j) trustees empowered to levy annual rates on all property owners and occupiers in the parish to pay for the workhouse/highway works; enforcing the collection and payment of such rates (k) trustees empowered to borrow money by issuing bonds to pay for the workhouse/highway works (l) provision for penalties, appeals and procedural matters.

15. The 1774 Act was concerned solely with the arrangements for rebuilding the workhouse, and constructing a new highway, in Southwark. The Act became unnecessary when the workhouse was finally completed in 1777 and the highway was completed in 1781. The workhouse site was used to provide the London Fire Brigade Headquarters in 1878. The building now houses the London Fire Brigade Museum.

16 These following matters are not identified by reference to section numbers because the 1774 Act was not divided into sections.

315 38 Geo.3 c.xxxiv (1798) (St Sepulchre’s Workhouse Act) 46 Geo.3 c.xvi (1806) (St Sepulchre City of London Poor Relief Act) 16. According to its long title, the purpose of the 1798 Act was “for rebuilding the Workhouse of the Parish of Saint Sepulchre, in the City of London; and for the better Relief and Employment of the Poor in the said Parish”. The purpose of the 1806 Act was to authorise the raising of more money to enable the rebuilding works to be completed.

17. The Parish of St Sepulchre had two districts, or liberties, which lay either side of the line of London’s traditional city walls. The London liberty, or St Sepulchre’s- within, lay within the old walls. St Sepulchre’s-without lay beyond the city wall in the then county of Middlesex. Both districts established new workhouses in 1727-28. The 1798 and 1806 Acts relate to the workhouse established in St Sepulchre’s- within.

18. The preamble to the 1798 Act recorded that the existing workhouse was “old and ruinous, and too small for the Accommodation and Relief of the Poor thereof, and considerable Sums of Money will be necessary to be raised for the re-building of the same…for the Reception, Relief and Employment of the Poor of the said Parish”.

19. The 1798 Act contained the following provisions for the rebuilding of the workhouse- (a) appointing of trustees for carrying out the purposes of the Act together with provisions for appointing new trustees (sections 1 to 3) (b) arranging for the trustees’ first and subsequent meetings, the procedure to be followed at such meetings and the appointment of a treasurer and other officials, including a surveyor to supervise the building works (sections 4 to 11) (c) authorising the trustees to demolish the existing workhouse and erect a new workhouse, together with ancillary buildings, either on the site of the existing workhouse in Chick Lane or else on other land within the parish (section 12). The trustees were authorised to purchase such additional land as was necessary to provide the workhouse (section 13); and to invest the purchase moneys in cases where the vendor was incapacitated (section 14)

316 (d) authorising the trustees to contract for the building work and take steps against contractors in the event of default; and authorising the churchwardens to pay the rental on any property leased to the trustees (sections 15 to 17) (e) authorising the levying of rates on property owners and occupiers in the parish to pay for the rebuilding work, and enforcing the collection and payment of these rates (sections 18 to 29) (f) authorising the trustees to raise money by selling life annuities or by raising loans (sections 30 to 35) (g) provisions concerning legal proceedings (sections 36 to 38) (h) provisions punishing the bringing of alcohol into the new workhouse (section 39), rewarding inmates for good work (section 40), punishing idleness or swearing (section 41) (i) preventing inmates of the Fleet Prison (which was within the parish of St Sepulchre) or their families becoming entitled to poor law benefits (section 42) (j) provisions for appeals and limitation of actions (sections 43 and 44).

20. The 1806 Act recorded in the preamble that not enough money had yet been raised to enable the completion of the new workhouse. Accordingly the Act authorised the trustees to levy additional rates on premises within the parish (section 1) and to sell additional life annuities (sections 2 to 4).

21. The workhouse was duly re-built just off Chick Lane. This lane no longer exists – the area where the workhouse used to be is now occupied by Charterhouse Street and the London Central Markets.17 The workhouse finally closed its doors in or before 1867.

22. The 1798 and 1806 Acts are concerned solely with the arrangements for rebuilding the St Sepulchre-within workhouse. Both Acts became unnecessary when the workhouse was finally completed in, at the latest, 1824. Accordingly both Acts may now be repealed.

17 The parish of St Sepulchre-Within joined the Holborn Union in 1845 but left it in 1915 to form the new Finsbury Union (along with Clerkenwell, St Luke, the Charterhouse and Glasshouse Yard).

317 39 Geo.3 c.iv (1799) (St Bride Fleet Street Poor Relief Act) 7 Geo.4 c.cxiv (1826) (St Bride Fleet Street Poor Relief Act) 23. According to its long title, the purpose of the 1799 Act was “for the better Relief and Employment of the Poor of the Parish of Saint Bridget, otherwise Saint Bride, Fleet Street, in the City of London”.18 The purpose of the 1826 Act was to amend the 1799 Act. Neither Act authorised the building of a workhouse.

24. These Acts reflect the responsibilities of parishes at that time to provide for the poor. Most parishes, or unions of parishes, funded at least one workhouse in their area, and the parish of St Bride (or St Bridget) in Fleet Street was no exception.19 Indeed, the 1799 Act and 1826 Act authorised the raising of money from the rates to provide for the needs of the poor whether or not the poor were resident in the parish workhouse.

25. The powers of the 1799 Act were found to be insufficient to provide adequate poor relief. The 1826 Act was therefore enacted to amend and enlarge those powers. Indeed the 1826 Act not only superseded the 1799 Act but repealed it subject to a number of transitional provisions.20

26. The 1826 Act provided for the following matters- (a) the repeal of the 1799 Act “except in the respects herein-after mentioned” on 24 June 1826 (section 1) (b) the appointment of trustees to carry out the purposes of the Act, the appointment of new trustees, the qualification of trustees, arrangements for meetings of trustees and the procedure to be followed in relation to them (sections 2 to 10) (c) the appointment of a treasurer and other officers, accounting provisions, officers appointed under 1799 Act to retain office until removed (sections 11 to 22) (d) trustees authorised to purchase furniture, clothing and other items required for the workhouse, to contract for the poor to be lodged or

18 St Bride’s was among the City churches to be rebuilt by Sir Christopher Wren following the Great Fire in 1666. The rebuilding work was sufficiently advanced for the re-opening of the church for worship in December 1675, although work on the steeple was not completed until 1703. St Bride’s was further restored following extensive war damage in 1940. 19 A workhouse existed in the parish of St Bride as early as the 1720s. 20 The 1826 Act, s1. The existence of these transitional provisions, albeit now long spent, means that a formal repeal of the 1799 Act is necessary in order to remove the Act from the statute book.

318 employed and for poor children to be nursed and cared for (sections 23 to 25) (e) powers and duties of churchwardens, overseers, treasurers and auditors (sections 26 to 32) (f) appointment of assessors to calculate annual value of property in the parish (sections 33 and 34) (g) calculation of annual sums needed to provide relief for the poor of the parish, and setting an annual rate (payable by parishioners) to pay for it (sections 35 to 39) (h) liability for rates, appeals against assessments for rates, collection, enforcement and penalties (sections 40 to 65) (i) miscellaneous matters including limitation of actions (sections 66 to 72).

27. The 1799 and 1826 Acts have long been obsolete. As from 183421 responsibility for the poor started to be transferred from individual parishes to Boards of Guardians appointed by Poor Law Unions.22 These Boards of Guardians and the Poor Law Unions were eventually abolished on 1 April 1930 under the provisions of the Local Government Act 1929. The functions of the 25 London Boards of Guardians were transferred on that day to the London County Council, responsibility for the destitute passing to new local Public Assistance Committees.

59 Geo.3 c.xv (1819) (Wapping Workhouse Act) 28. According to its long title, the purpose of the 1819 Act was “for raising a Further Sum of Money, by Annuities or otherwise, for the Purpose of erecting a Workhouse for the Use of the Poor of the Parish of Saint John of Wapping, in the County of Middlesex”.

29. The 1819 Act was the final in a series of enactments23 passed to raise money to erect and provide a workhouse in Wapping. The present Act records, in its preamble, that the workhouse and ancillary offices had now been completed but further money was needed to cover the costs of the completion works. The 1819 Act authorised the raising of a further £6000 to cover these final costs.24

21 Poor Law Amendment Act 1834; Metropolitan Poor Act 1867. 22 St Bride’s was one of the seven parishes that constituted the West London Poor Law Union at its creation in December 1837. The West London Union was wound up in 1869 with its constituent parishes transferring to the City of London Union. 23 22 Geo.3 c.35 (1782) (repealed by SR&O 1901/276); 23 Geo.3 c.32 (1783) (repealed by SR&O 1901/276); 57 Geo.3 c.lxxiii (1817) (repealed by SR&O 1901/276). 24 The 1819 Act, s1.

319 30. The workhouse at Wapping (just off Green Bank on Upper Wall Alley) was one of several workhouses situated within the parish of Stepney.25 It is mentioned by Charles Dickens in The Uncommercial Traveller.26 Stepney Poor Law Union was formed in December 1836 and its constituent parishes included Wapping. The Stepney Poor Law Union became known as the Parish of Stepney Union in 1927. Wapping today falls within the London Borough of Tower Hamlets.

31. The 1819 Act became unnecessary once the £6000 had been raised to pay for the completion works. Records indicate that the Wapping workhouse finally closed its doors in 1863.

Extent 32. The Acts proposed for repeal applied only in the London area.

Consultation 33. The City of London Corporation, the London Boroughs of Southwark, Camden and Tower Hamlets, the London Fire Brigade Museum and St Bride’s Fleet Street have been consulted about these repeal proposals.

LAW/005/007/06 01 February 2008

25 A workhouse was opened in Virginia Street around 1730 to hold about 60 men, women and children. 26 The Uncommercial Traveller originated in a series of articles that Charles Dickens wrote between 1860 and 1869 for the journal “All The Year Round”.

320 GROUP 2 – WESTMINSTER COURT HOUSE

______

Reference Extent of repeal or revocation ______

18 Geo.3 c.72 (1778) The whole Act. (Westminster Improvement Act)

39 Geo.3 c.lxxxii (1799) The whole Act. (Westminster Court House Act)

44 Geo.3 c.61 (1804) Section 3. (Sessions Houses, Westminster, etc Act)

47 Geo.3 sess.2 c.lxvii (1807) The whole Act. (Westminster Court House Act) ______

Westminster Court House Introduction 1. These Acts of 1778, 1799 and 1807 (together with section 3 of the 1804 Act) were passed with the single purpose of building a court house in what is now the City of Westminster. The necessity for so much legislation relates to issues such as the project running out of money and late changes to the chosen site for the court house. The Acts became unnecessary once the matters with which they were concerned (i.e. the financing of the project and the building of the court house) had been completed. This occurred in, or just after, 1807. The court house no longer exists, having been replaced by a new court building on the same site during the 1880s. The replacement building was itself demolished to make way for the present Middlesex Guildhall, which was constructed from 1906 to 1913. The Middlesex Guildhall has in recent years been used as a Crown Court but is due to be renovated to house the new UK Supreme Court.

2. The need for a court building of some sort in the City of Westminster was identified in the preamble to the 1778 Act: Whereas there is not any convenient Court-house for holding the Courts and exercising the Jurisdiction of the Dean and Chapter of the Collegiate Church of Saint Peter,27 within the City and Liberty of Westminster, and for holding the Quarter Sessions of the Peace, and transacting the other publick Business of the said City and Liberty: And whereas it would be greatly for the Convenience of the said Dean and Chapter, and of His Majesty’s Justices of

27 The Collegiate Church of St Peter, Westminster is better known as Westminster Abbey. It is neither a cathedral nor a parish church but a “Royal Peculiar” under the jurisdiction of a Dean and Chapter, subject only to the Sovereign.

321 the Peace for the said City and Liberty, and for the Benefit of the Inhabitants thereof, if a public Court-house was built for the Purposes aforesaid …

3. Accordingly the court house was needed for the exercise of the jurisdiction of the Dean and Chapter, for the business of the courts of Quarter Sessions and for transacting any other business in Westminster.

18 Geo.3 c.72 (1778) (Westminster Improvement Act) 4. The 1778 Act provided for the following matters28- (a) appointing of Commissioners to purchase land in Westminster and erect a court house (b) the purchased land to be conveyed to the Dean and his successors (c) cost of the land purchase and building work not to exceed £7500 (d) repairs to the court house to be funded out of the rates for the county of Middlesex (e) the City of London to contribute an annuity of £247 and 10 shillings towards the cost of building the court house, the sum to be raised from the surpluses of the Orphans Fund29 (f) any further funding needed to build the court house to come from the county rates.

39 Geo.3 c.lxxxii (1799) (Westminster Court House Act) 5. The 1799 Act was passed to give the Commissioners additional powers including authority to raise more money to carry out the purposes of the 1778 Act. The preamble to the Act records that the Commissioners had now purchased land on which to build the court house, but they needed to (a) buy out the interests of tenants occupying this land (b) buy additional land (belonging to the Dean and Chapter) and (c) stop up a number of passageways.

6. Accordingly the 1799 Act provided for- (a) the Commissioners to spend an additional £6000 in buying land, buying out the interests of tenants and in building the court house (section 2) (b) more money to be raised from the county rates or from annuities (sections 3 to 5)

28 These following matters are not identified by reference to section numbers because the 1778 Act was not divided into sections. 29 This Fund was established by a 1694 Act (5 & 6 Will & Mar c.10) for the relief of the orphans and other creditors of the City of London.

322 (c) the building line of the court house, the stopping up of passageways and the payment of compensation (sections 11 to 16).

44 Geo.3 c.61 (1804) (Sessions Houses, Westminster, etc Act) 7. One of the purposes of this 1804 Act was to amend the 1778 and 1799 Acts to enable the Commissioners to build the new court house not on the land which they had already bought for that purpose, but on land nearby owned by the Dean and Chapter. This land was known as the Round Woolstaple, an area off what is now Parliament Square (close to the approach to Westminster Bridge) which used to house the ancient Westminster Market.30 The reason for abandoning the original plan to build the court house close by to Parliament was a practical one. According to the preamble to the 1804 Act, “the erecting of the said Courts on such Ground, and the Resort of Persons to such Courts, would incommode the Approach to the Two Houses of Parliament, and produce considerable Inconveniences”.

8. The 1804 Act accordingly provided for the Commissioners to sell the land acquired pursuant to the 1778 and 1799 Acts to Special Commissioners representing the Crown, and to buy the site of the ancient market for the purpose of the new court house. The site ultimately chosen for the new court house was on the west side of the modern Parliament Square, approximately on the site of the present day Middlesex Guildhall. The building was designed by the architect Samuel Pepys Cockerell. It is not proposed that the 1804 Act as a whole should be repealed because it contains provisions unrelated to the land needed for the building of the court house. However, section 3 of the 1804 Act which authorised the Commissioners to build the court house on the site of the market is clearly now spent and may be repealed.

47 Geo.3 sess.2 c.lxvii (1807) (Westminster Court House Act) 9. This 1807 Act amended the earlier three Acts in order to give the Commissioners additional powers to complete the building of the court house and to provide for its operation once the building work was complete. Accordingly the Act provided for-

30 An Act of 1749 (23 Geo.2 c.14) recorded in its preamble that the “market for the City of Westminster had from ancient times been held from or under the Dean and Chapter of the Collegiate Church of St Peter, Westminster in a place called the Round Woolstaple in the Parish of St Margaret in the City of Westminster, which market had lately been designated for the purpose of building a bridge across the River Thames from the Woolstaple.” The bridge was duly opened in November 1750. Sinking foundations meant that the bridge had to be replaced by a more secure structure (the modern Westminster Bridge) in 1862. Presumably the new court house was constructed on part of the old market not required for bridge access.

323 (a) the sale of part of the site of the ancient market not required for the building of the court house (section 1) (b) authorising the Commissioners to spend an additional £4000 in building and fitting out the court house (section 2) (c) the court house to be under the control and management of the justices of the City and Liberty of Westminster with power to engage staff, let out the cellars beneath the court house and keep the premises repaired and maintained (sections 4 to 7).31

Conclusion 10. As indicated in the introduction to this note, the court house building authorised by the 1778, 1799 and 1807 Acts (together with section 3 of the 1804 Act) no longer exists. It follows that these Acts no longer serve any useful purpose and so may be repealed on that basis. Their repeal will have no effect on the current building on that site, the Middlesex Guildhall, because the Acts do not relate to it in any way.

Extent 11. The provisions proposed for repeal applied only in the City of Westminster.

Consultation 12. Westminster City Council, the Department for Constitutional Affairs, HM Court Service and the Dean and Chapter, Westminster Abbey have been consulted about these repeal proposals.

LAW/005/007/06 01 February 2008

31 However, by virtue of an Act of 1844 (7 & 8 Vict. c.71, s 14), the control and management of the court house passed to the justices of the county of Middlesex.

324 GROUP 3 – LONDON COAL DUTIES

______

Reference Extent of repeal or revocation ______

45 Geo.3 c.ii (1805) The whole Act. (London Coal Trade Act)

5 Geo.4 c.cxlvii (1824) The whole Act. (City of London Coal Trade Act)

3 & 4 Vict. c.cxxxi (1840) The whole Act. (Port of London Coal and Wines Import Duties Act)

6 & 7 Vict. c.ci (1843) The whole Act. (Port of London Coalwhippers Act)

Coal Duties (London and Westminster The whole Act. and adjacent Counties) Act 1851 (14 & 15 Vict. c.cxlvi)

Coal Duties (London etc) Drawback The whole Act. Act 1857 (20 & 21 Vict. c.lxxxix) ______

London Coal Duties Acts

1. This note proposes the repeal of six local Acts relating to the London coal trade of the nineteenth century, with particular reference to the duties payable on coal.

Background 2. From mediaeval times, the City of London Corporation has been entitled to collect dues or taxes on coal and other goods entering the City. A charter of James I in 1605 confirmed the City’s ancient right to collect certain dues, known as metage, on coal entering the City. The dues covered the costs of the Weighers and Measurers of coal who were appointed, in part at least, to prevent the public being defrauded. These officials became known as Coal Meters. Coal coming up the Thames would be unloaded, weighed and measured. A further charter of 1612 established that the rate of metage should be 8d. per ton.

3. After the Plague in 1665 and the Great Fire of London in 1666, the City’s finances were left in a precarious state. It was impossible for the necessary rebuilding and improvements to be financed out of existing resources. It was probably

325 because the machinery to collect taxes on coal already existed that it was decided to finance the works out of further dues on coal. A series of Acts were passed to sanction an increase in coal duties to carry out the building works.32 The City remained heavily in debt despite this additional revenue. An Act of 169433 increased the metage duty by 4d. and an additional duty of 6d. per chaldron34 was imposed. These additional dues, together with other moneys, were designed to extinguish the City’s debt. These duties were continued on a number of occasions over the years and were linked with building improvements in the City. The whole of the City’s debt was paid off by 1834.

4. The Corporation continued to receive coal duties for most of the nineteenth century. An Act of 1831,35 which abolished the metage system along with the office of Coal Meter, provided for a coal duty of 12d. per ton to be payable for 7 years. This Act was extended by a series of Acts to 1889.36 The duties on coal were finally abolished by the London Coal Duties Abolition Act 1889.37

5. The London Coal Exchange, a “free open and public market for the sale of coal” built pursuant to an Act of 180338 opened on Billingsgate in January 1805.39 Prior to the 1803 Act, the coal market had been under the management of the Woodmongers Company40 and later, the Lightermen,41 but there were concerns about the way the market was being run.42 Under the Act of 1803, the Corporation of London compulsorily purchased the Billingsgate market opened the free market. The Exchange was rebuilt in 1847, pursuant to an Act of 1846,43 on Lower Thames Street opposite the Billingsgate market by James Bunstone Bunning.44 It was situated on

32 These included 18 & 19 Cha.2 c.8 (1666) and 22 Cha.2 c.11 (1670). 33 5 & 6 Will & Mar. c.10. 34 A chaldron was a coal measure of about 36 bushels. 35 1 & 2 Will.4 c.lxxvi. 36 1 & 2 Vict. c.ci (1838); 8 & 9 Vict. c.101 (1845); 24 & 25 Vict. c.42 (1861); 26 & 27 Vict. c.46 (1863); and 31 & 32 Vict. c.17 (1868). 37 The 1889 Act (c.17), s.1. 38 43 Geo.3 c.cxxxiv 39 Denny, J., Lionel, P, Sir. “The Coal Market”, [1969] 4 Transactions of the Guildhall Historical Association 21 at page 22. 40 The Woodmongers Company became defunct in the eighteenth century, and its members joined the Worshipful Company of Fuellers, one of the Livery Companies of the City of London. 41 This company still exists as the Company of Watermen and Lightermen, and it is the only City Guild to be established and controlled by Act of Parliament. 42 Jarman, D. “The London Coal Trade”, [1987] 10 Berkshire Family History Society Magazine 264. 43 9 & 10 Vict. c.xxii (repealed). 44 b.1802 – d.1863. As architect to the Corporation of London, Bunning built the City of London School, and provided the plans for Holloway Prison, amongst other notable projects.

326 top of a Roman bathhouse which was discovered and excavated during the building works.45

6. The London Coal Exchange and Market no longer exists. Its demise resulted from the nationalisation of the coal industry following the 1939-45 War.46 The building remained on Lower Thames Street until 1967, when it was demolished, pursuant to the City of London (Various Powers) Act 1967. The site was later appropriated for other purposes, and the legislation regulating the Exchange has since been formally repealed.47

7. Although most of the Acts imposing duties on coal entering London have long since been repealed, a number of obsolete Acts regulating the sale and supply of coal in London remain on the statute book. These Acts are identified in the following paragraphs.

45 Geo.3 c.ii (1805) (London Coal Trade Act) 8. The purpose of this 1805 Act was to indemnify those persons working in the coal market in the City of London who had incurred penalties during the month of January 1805 as a result of an Act of 1803.48 The 1803 Act established a free market in the City of London for the sale of coal. The market opened on 2 January 1805. The 1803 Act imposed new obligations to record full details of contracts for the sale of coal, and any sale agent who failed to comply with these obligations was liable for a fine of £100. A number of agents, through ignorance of the new rules, faced ruin if the law had been strictly enforced against them. Accordingly the 1805 Act provided these persons with an indemnity in respect of any penalties incurred by them during the first month of the new rules.

9. The transitory nature of this 1805 Act means that it has been spent for 200 years.

45 The Roman bathhouse is a prime archaeological site in the City of London. It was excavated again after the Coal Exchange’s demolition in 1967. 46 Coal Industry Nationalisation Act 1946. 47 City of London (Various Powers) Act 1967, s 31, Sch 3. This Act also repealed 9 Vict. c.xxii, an Act of 1846 that authorised the rebuilding of the coal market on an enlarged site. 48 43 Geo.3 c.cxxxiv.

327 5 Geo.4 c.cxlvii (1824) (City of London Coal Trade Act) 10. The purpose of this 1824 Act was to authorise the City of London to borrow £16000 at 4% interest so it could then repay an earlier loan bearing interest at 5%. The security for the new loan was the revenue from the coal duties received by the City of London pursuant to the Act of 1803 referred to above.

11. The detailed provisions set out in the 1824 Act for borrowing the £16000 and repaying the existing loan are long since spent with the result that the Act may now be repealed as being unnecessary.

3 & 4 Vict c.cxxxi (1840) (Port of London Coal and Wine Import Duties Act) 12. The purpose of this Act was to continue for four years from 5 July 1858 certain duties levied on coal and wine imported into the Port of London. The duty on coal (6d. per chaldron) would have expired, pursuant to an Act of 1829,49 on 5 July 1858. The duty on wine (4 shillings per tun) was, as in the case of the duty on coal, originally imposed by an Act of 1694.50

13. This 1840 Act became spent once four years from 5 July 1858 had elapsed and it may now be repealed on that basis.

6 & 7 Vict. c.ci (1843) (Port of London Coalwhippers Act) 14. The purpose of this 1843 Act was to regulate the workforce known as coalwhippers, whose principal function was to unload coal from vessels arriving at the Port of London. Commissioners were appointed by the City of London and others to register and regulate these coalwhippers. Only registered coalwhippers were to be allowed to undertake such employment.

15. This Act was intended to have only temporary effect. It was expressed to continue in force until the end of the Parliamentary session following 1 January 1846.51 Accordingly this Act has long ago expired under its own terms and may now be repealed formally.

49 10 Geo.4 c.cxxxvi (London Bridge Approaches). 50 5 & 6 Will. & Mar. c.10 (Orphans, London). 51 The 1843 Act, s 47.

328 Coal Duties (London and Westminster and adjacent Counties) Act 1851 Coal Duties (London etc) Drawback Act 1857 16. According to its long title, the purpose of the Coal Duties (London and Westminster and adjacent Counties) Act 1851 (“the 1851 Act”) was “to amend the Acts relating to the Vend and Delivery of Coals in London and Westminster, and in certain Parts of the adjacent Counties; and to allow a Drawback on Coals conveyed beyond certain Limits”.

17. The 1851 Act amended earlier legislation relating to sale and delivery of coal in the Cities of London and Westminster and surrounding areas.52 In particular the 1851 Act contained provisions to ensure the quality of coal brought into the Port of London and the payment of duties on coal brought into London whether by sea, canal, road or railway. The area covered by the system of duties on coal was the radius of 20 miles from the General Post Office in St Martin’s-le-Grand in the City of London. The 1851 Act provided for this 20 mile distance to be marked by boundary stones or other permanent markings.53 Any coal passing over the 20 mile boundary as it came into London attracted the duties, although there was provision for remission of duty (known as ‘drawback’) in cases where the coal merely passed through London without being unladen. The enforcement of the various obligations imposed by the 1851 Act was in the hands of the Clerk and Registrar of the City of London Coal Market.

18. According to its long title, the purpose of the Coal Duties (London etc) Drawback Act 1857 (“the 1857 Act”) was “to allow a Drawback on the Duties payable on Coals, Culm, Coke and Cinders”. The 1857 Act amended the 1851 Act so as to allow drawback of duty paid in certain cases notwithstanding that the coal had been unladen from the vessel that brought it into London.

19. Given the closure of the Coal Market and the abolition of the tax on coal brought into London,54 the 1851 and 1857 Acts are clearly now unnecessary. Their formal repeal is recommended on that basis.

52 These Acts were 1 & 2 Will.4 c.lxxvi (1831), 1 & 2 Vict. c.ci (1838) and 8 & 9 Vict. c.101 (1845). All three Acts have been repealed by City of London (Various Powers) Act 1967, s 31, Sch 3. 53 Approximately 250 of these boundary posts remain situated around London. The posts are no longer in a neat ring after the London Coal and Wine Duties Continuance Act 1861 reduced the size of the area within the boundaries. 54 London Coal Duties Abolition Act 1889.

329 Extent 20. The provisions proposed for repeal in this note applied only within a 20 mile radius from central London.

Consultation 21. HM Treasury, HM Revenue and Customs, the Department of Trade and Industry, the City of London Corporation, Westminster City Council, the Worshipful Company of Fuellers and the Company of Watermen and Lightermen have been consulted about these repeal proposals.

(32-195-104) LAW/005/007/06 01 February 2008

330 GROUP 4 – COURT OF CHANCERY

______

Reference Extent of repeal or revocation ______

49 Geo.3 c.lxix (1809) The whole Act. (Court of Chancery Act)

50 Geo.3 c.clxiv (1810) The whole Act. (Court of Chancery Act)

56 Geo.3 c.lxxxiv (1816) The whole Act. (Court of Chancery Act)

10 Geo.4 c.cxvi (1829) The whole Act. (Six Clerks and Chancery Inrolment Offices Act)

5 & 6 Will.4 c.cvi (1835) The whole Act. (Court of Chancery (Improvement of Offices) Act) ______

Obsolete Court of Chancery Acts Background 1. The Acts which this note proposes for repeal were set in a period during the early nineteenth century at a time when the Court of Chancery had a well-justified reputation for inefficiency, delay and inordinate expense. The Court was headed by the Chancellor55 and was primarily concerned with the administration of equity.56 The backlog of undecided cases was caused partly by inefficient procedure and partly by the desire of successive Chancellors to consider each case personally. A Vice- Chancellor57 was first appointed in 1813 to assist the Chancellor and the Master of the Rolls with the dispatch of judicial business. This, however, did little to speed up cases. The volume of litigation increased and the cause lists were as full as ever.

2. Another feature common in the Court of Chancery (and, indeed, common in all principal English courts from medieval times until the nineteenth century) was that most court officers drew their income from court fees. In other words, court officials

55 The Chancellor was from medieval times Keeper of the Great Seal of England. Royal justice was initiated by original writs sealed by the Chancellor. The modern title of the Chancellor is Lord High Chancellor of Great Britain, or, more usually, Lord Chancellor. 56 The Court also had a common law jurisdiction as well as jurisdiction in bankruptcy and lunacy cases. 57 Two additional Vice-Chancellors were appointed in 1842. The Office of Vice-Chancellor disappeared in 1875 with the re-organisation of the court system and was not revived until the Administration of Justice Act 1970, s 5. Following changes brought about by the Constitutional Reform Act 2005 (whereby the Lord Chancellor ceased to exercise judicial functions), the Chancery Division of the High Court is

331 were paid no salary but relied on the court fees paid by litigants.58 Indeed it was often the case that court officials acquired their position by buying it from the previous holder of that office. The office became the property of the current holder and he could sell it on to someone else in due course. Frequently the actual work of the office would be carried out not by the office-holder but by a deputy appointed by the office-holder.

3. Reforms to the running of the Court of Chancery began to take effect by the 1830s. An Act of 1833 provided for annual salaries to be paid to the Registrars, their clerks and other officials, and prohibited the acceptance by any court officer of any gratuity.59 An Act of 1842 abolished certain obsolete offices of the Court including the Clerks of Enrolment and the Six Clerks.60 A more complete measure of reform came in 1852 with a series of enactments, one of which provided that, as from 28 October 1852, no officer of the Court of Chancery or any of the judges of that court should receive for his own benefit any fee or reward but should instead be paid by annual salary.61 Penalties were to be imposed on any such officer or judge who thereafter accepted any such fee or reward.62

4. The Court of Chancery ended with the establishment of the Supreme Court of Judicature by the Supreme Court of Judicature Act 1873. The Court of Chancery, together with the Court of Queen’s Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes and the London Court of Bankruptcy were united and consolidated to constitute the Supreme Court of Judicature.63 The jurisdiction of the Court of Chancery was assigned to the Chancery Division of the High Court which, together with the Court of Appeal, comprised the new Supreme Court.

5. The opening of the Royal Courts of Justice in the Strand by Queen Victoria on 4 December 1882 provided dedicated accommodation for the hearing of Chancery business. Until then most Chancery appeals had been heard on premises made available in Lincoln’s Inn.

today headed by the Chancellor of the High Court: Supreme Court Act 1981, s 5(1)(a) (as substituted by the 2005 Act, s 15(1), Sch 4, Pt 1, paras 114, 118(1), (2)). 58 By contrast, judges were paid an official salary. Even here, however, it was not uncommon for the salary to be supplemented by court fees. 59 3 & 4 Will.4 c.94, ss 33, 41, Sch. 60 5 & 6 Vict. c.103, s 1. 61 15 & 16 Vict. c.87, s 1. 62 15 & 16 Vict. c.87, ss 3, 4. 63 Supreme Court of Judicature Act 1873, s 3.

332 Proposed repeals 6. The following paragraphs describe the five Court of Chancery Acts that remain on the statute book, and propose their repeal.

49 Geo.3 c.lxix (1809) (Court of Chancery Act)

7. According to its long title, the purpose of this 1809 Act was- for making Provision for such of the Sub-Registrars or Deputy Registrars of the High Court of Chancery, as from Age or Infirmity shall be afflicted with permanent Disability, and be incapacitated for the due Execution of their office; and for making Further Provision for the two Seniors of the said Registrars, for the Clerks in the Registrar’s Office, for the Master of the Report office, and for providing additional Clerks in the Report Office of the said Court; and for making other Payments and Regulations in respect of the said Offices.

8. The preamble to the 1809 Act recorded that the fees to which certain High Court of Chancery officials64 were entitled, had become insufficient to recompense them for the “Attendance, Trouble, and Importance of their Offices, and to the Length of their Services”. The issue had become more pressing because of the increase in the number of duties for which no fee or duty was payable, and because of the increase in the cost of living. The preamble also recorded the need to make provision for incapacitated Registrars and to provide funding for additional clerks.

9. The 1809 Act accordingly provided for the following matters- (a) specified sums (payable quarterly out of the dividends from accumulated suitors’ cash) to be paid to senior and deputy registrars and to certain other clerks and registrars. These officials would also be reimbursed for expenses incurred by them from 5 April 180465 (section 1) (b) clerks to produce certificates of good service in order to claim the specified sums payable under section 1 (section 2) (c) power for Lord Chancellor to remove from office and replace any Sub or Deputy Registrars afflicted with permanent infirmity and provide them with an annuity (section 3) (d) provisions for paying the expenses arising out of the 1809 Act and for handling the surplus accumulated suitors’ cash (sections 4 to 7).

64 These officials included the Filer and Keeper of papers of the Office of Registrar, the Sub or Deputy Registrars and their clerks. 65 These expenses including providing stationery, books, coals and candles.

333 10. By 1852, the system of remunerating Court of Chancery officials from fees paid into court by litigants had been superseded by the payment of annual salaries.66 These arrangements for salaries and, where applicable, pensions were carried over to the new Chancery Division of the High Court by the Supreme Court of Judicature Act 1873.67 The current arrangements for appointing officials working in the Chancery Division are contained in the Courts Act 2003.68 Such officials are usually civil servants to whom civil service terms and conditions (including the Principal Civil Service Pension Scheme) will apply. In all cases, the remuneration of officials will be governed by the terms and conditions of their employment contracts. Accordingly the provisions of the 1809 Act for supplementing the income of court staff and providing annuities for sick officials have long been unnecessary and may now be repealed.

50 Geo.3 c.clxiv (1810) (Court of Chancery Act) 11. According to its long title, the purpose of this 1810 Act was- for building certain Offices for the Examiners, Cursitors, Clerk of the Crown, and Clerks of the Petty Bag, of the High Court of Chancery; and for making certain Regulations in the Examiner’s Office of the said Court; and for making Provision for such of the Examiners, Deputy Examiners, and Clerks, as from Length of Service or from Age or Infirmity, are or shall be incapacitated from the due Execution of their Offices; and for making Provision for other Officers of the said Court; and for making other Payments in respect of the said Offices.

12. The preamble to the 1810 Act recorded that problems had arisen concerning the office of Examiner of the High Court of Chancery, not least the lack of any procedure for removing an incapacitated or incompetent Examiner from office69 or preventing an Examiner from engaging in other employments and pursuits. Moreover the business of the Examiners was conducted in sub-standard premises, the freehold of these premises (which were in Rolls Yard, Chancery Lane) being vested in the Examiners and other officials personally. The preamble also recorded as improper the existing arrangements for remunerating the Usher and Court Keeper, whereby they were permitted to make a profit out of the stationery and other articles that they supplied to the court. Finally, the preamble recorded the need for better security for the premises holding the records of the court. The premises (on the first floor of a building in Chancery Lane) were vested in court officers, known as Cursitors, whose business it was to keep these records.

66 See opening paragraphs of this note. 67 The 1873 Act, s 77. 68 The 2003 Act, s 2(1) to (3).

334 13. Some provisions of the 1810 Act have already been repealed.70 These provisions were section 1 (applying some of the income from accumulated suitors’ cash for the purposes of the Act), section 3 (providing accommodation for the Examiners, Cursitors and other officials), section 8 (power to appoint additional Examiners), section 15 (payment of compensation, salaries and annuities), section 16 (payment of allowances to the Usher and Court Keeper), section 17 (regulating the supply to the court of parchment and stationery), section 18 (paying annuities to Examiners and clerks who are removed from office), section 19 (power to sell property for the purposes of the Act), section 21 (application of compensation money), sections 25 to 28 (expenses of the Act and investments).

14. The unrepealed provisions of the 1810 Act provide for the following matters- (a) freehold of the premises in the Rolls Yard, Chancery Lane (where the business of the Examiners, the Clerk of the Crown and the Clerks of the Petty Bag was carried on) to be vested in the Master of the Rolls for the time being (section 2) (b) any premises purchased for the use of the Court of Chancery to be vested in the Master of the Rolls for the time being (section 4) (c) no building purchased or built pursuant to the Act to be used as a private residence (buildings to be used only for the purposes of the Act) (section 5) (d) power for Lord Chancellor to remove from the office of Examiner (or the clerk of such Examiner) any person who is unable or incompetent to discharge the duties of such office (section 6) (e) removal of Henry Flitcroft Esq from the office of Examiner (section 7) (f) filling vacancies in the office of Examiner, and oaths to be taken by new Examiners and copying clerks (section 9) (g) Examiners and clerks to attend to their duties in person and not to undertake other employment (section 10)

(h) Examiners to distribute their business equally amongst each other; witnesses on different sides of a case to be examined by different Examiners (section 11)

69 One of the Examiners was identified in the preamble to the 1810 Act as Henry Flitcroft Esq who had “for a considerable time been a Lunatic Ward of the said Court of Chancery, and wholly incompetent to the Discharge of the Duties of the said Office”. 70 Courts of Justice (Salaries and Funds) Act 1869 (c.91), s 34, Sch 5.

335 (i) Lord Chancellor and Master of the Rolls to determine the terms and conditions (including the fees to be paid to them by suitors) of Examiners and their clerks (section 12) (j) authority for appointment of temporary Examiners or clerks in cases of temporary illness or disability (section 13) (k) Lord Chancellor empowered to appoint maximum of four persons to keep order in the court and “prevent insane and other disorderly Persons from intruding themselves into the said Court” (section 14) (l) application of compensation money in respect of land acquired pursuant to the Act (sections 20, 22 to 24) (m) savings, status of Act (sections 29, 30).

15. The 1810 Act no longer has any effect. So far as the offices of the court are concerned, the premises in Rolls Yard no longer exist. During the 1880s and 1890s, the area in Rolls Yard occupied by the Examiners, the Clerk of the Crown and the Clerks of the Petty Bag was redeveloped. The Public Record Office in Chancery Lane was built on that site and on neighbouring land.71 The site is occupied today by Kings College London as a library and information services centre. Accordingly, no court today operates from the site of the old Rolls Yard, the work of the Chancery Division being carried out in the Royal Courts of Justice in the Strand.

16. Matters in the 1810 Act relating to the appointment, and terms and conditions, of court officials working in what is now the Chancery Division of the High Court have long since been handled administratively by central government (currently HM Courts Service) pursuant to the Courts Act 200372 rather than being determined personally by the judiciary.

17. Accordingly the 1810 Act no longer serves any useful purpose and may be repealed on that basis.

71 The Public Record Office in Chancery Lane was built between 1847 and 1898 to house government records. Rolls Yard was built over during the later stages of the building works in the mid to late 1890s. The Public Record Office vacated Chancery Lane in 1996. Kings College London acquired a long lease of the building in 1998 and converted it into a library (the Maughan Library) and information services centre. The Public Record Office is now part of the National Archives at Kew. 72 The 2003 Act, s 2.

336 56 Geo.3 c.lxxxiv (1816) (Court of Chancery Act) 18. According to its long title, the purpose of this 1816 Act was “for erecting Buildings for the Accommodation of the Court of Chancery”.

19. The preamble recorded (a) the need for the Vice Chancellor of England to have the use of suitable accommodation for holding the sittings of the Court of Chancery,73 (b) an agreement between the Honourable Society of Lincoln’s Inn to grant land at the west end of, and adjoining, the Society’s Council Chamber for the purpose of a new court to be built on it, and (c) an arrangement whereby Robert Greenhill Russell of Lincoln’s Inn would surrender his interest in a set of Chambers over the Council Chamber.

20. The 1816 Act accordingly provided for the following matters- (a) Sheriff of Middlesex to enpanel a jury to assess the sum to be paid to Robert Greenhill Russell to compensate him for the loss of his accommodation at Lincoln’s Inn (section 1) (b) penalty for giving false evidence to the Sheriff and jury (section 2) (c) Court of Chancery to order sums to be paid out of the income from accumulated suitors’ cash (i) by way of the assessed compensation to Robert Greenhill Russell, (ii) to the Honourable Society of Lincoln’s Inn to compensate them for their expenses in connection with the new court (including making alterations to their Council Chamber), (iii) in building and fitting out the Vice-Chancellor’s new court (up to a maximum of £9000), and (iv) to cover future expenses such as repairs and insurance (section 3) (d) the new court, its rooms and cellars to remain vested in the trustees for the Honourable Society of Lincoln’s Inn in trust for the use of the court, the property to revert to the Society if the property should cease to be used as a court (section 4) (e) expenses of the Act, reserving rights over accumulated suitors’ cash, and the status of the Act (sections 5 to 7).

73 Until 1813, the Lord Chancellor and the Master of the Rolls were the sole judges of the Court of Chancery. The appointment of a Vice-Chancellor in 1813 gave rise to the need to provide additional premises for court hearings.

337 21. The new court ran westwards from the north-end of the Old Hall, extending nearly to the site of the present War Memorial. Further accommodation was provided by Lincoln’s Inn when, in 1841, two more Vice-Chancellors were appointed. In 1851, two additional judges were appointed to hear Chancery appeals, and these were given hearing accommodation in the Old Hall in Lincoln’s Inn. The opening of the Royal Courts of Justice in the Strand in 1882 meant that these premises in Lincoln’s Inn were no longer required for judicial business.74 Accordingly, the courts of the three Vice-Chancellors were demolished in 1883, allowing the chapel to be enlarged westwards.

22. This 1816 Act ceased to serve any useful purpose once the Royal Courts of Justice were opened thereby providing accommodation for the Vice-Chancellors. The Act may therefore be repealed as being unnecessary.

10 Geo.4 c.cxvi (1829) (Six Clerks and Chancery Inrolment Offices Act) 23. According to its long title, the purpose of this 1829 Act was “to provide for the Repair of the Six Clerks and Chancery Inrolment Offices, and the better Preservation of the Records of the Court of Chancery”.

24. The ancient office of the Six Clerks administered the process of pleadings entered in Chancery. The office enrolled commissions, pardons, patents, warrants etc that had passed the Great Seal. Another of its functions was to assist impoverished parties involved in Chancery actions. The Six Clerks also represented the interests of paupers and lunatics. As part of the series of reforms of the Chancery Court in 1842, the office of the Six Clerks was abolished.75 Their functions in relation to representing the interest of “paupers, infants and lunatics” vested in the office of the Solicitor to the Suitors’ Fund.76

25. The preamble recorded- (a) the arrangements under earlier legislation dating back to 177477 whereby the income from accumulated suitors’ cash was to be used to buy land in

74 The Courts of Justice Building Act 1865, s 23 provided for these premises to vest in the Honourable Society of Lincoln’s Inn free from the trusts imposed by the 1816 Act once the premises were no longer required for judicial business. 75 5 & 6 Vict. c.103 (1842), s 1. Despite their functions, the Six Clerks were thought to serve little useful purpose. 76 These functions eventually became vested in the Official Solicitor to the Supreme Court of Judicature 77 14 Geo.3 c.43 (1774); 15 Geo.3 c.56 (1775).

338 an ancient garden in Lincoln’s Inn and build offices for the Six Clerks (including an Inrolment Office for the holding of records) (b) the fact that these new offices had fallen out of repair and were too small to hold all the Court of Chancery records.

26. The 1829 Act accordingly provided for the following matters- (a) the Lord Chancellor authorised to order the repair of the offices of the Six Clerks and the Inrolment Office, and the indexing and removal of Court of Chancery records from the Inrolment Office to the Record Office in the Tower of London78 (section 1) (b) transfer of the necessary funds to pay for the repairs and indexing and removal of court records (section 2) (c) authority to apply accumulated suitors’ cash towards meeting the costs of the repairs, indexing and removal of records etc (section 3) (d) status of the Act (section 4).

27. Subsequently in 1842, following the abolition of the office of the Six Clerks, the offices were vested in the Accountant General of the Court of Chancery, to be used for such purposes as the Lord Chancellor might direct.79

28. The former offices of the Six Clerks, 10 Stone Buildings, Lincoln’s Inn, fell vacant when the new Law Courts in the Strand were opened in 1882. By an Act of 1865,80 the Honourable Society of Lincoln’s Inn were permitted to re-purchase the land and premises once they were no longer required for Court of Chancery business. The premises are today used as the Headquarters of the Inns of Court and City Yeomanry of the Territorial Army.

29. The purposes of the 1829 Act were met when the repairs to the offices were carried out and the Chancery records were duly indexed and removed to the Tower. Accordingly the Act has long been unnecessary and is ripe for repeal.

78 The Tower of London ceased to house the Record Office in 1866 (when it moved to new premises in Chancery Lane). 79 5 & 6 Vict. c.103, s 29. 80 Courts of Justice Building Act 1865 (c.48).

339 5 & 6 Will.4 c.cvi (1835) (Court of Chancery (Improvement of Offices) Act) 30. According to its long title, the purpose of this 1835 Act was for “the Improvement of the Registrar’s Office and other Offices of the Court of Chancery”.

31. The preamble recorded- (a) the arrangements under existing legislation81 whereby the Lord Chancellor could order annual sums not exceeding £500 to be applied in making additions or alterations to the accommodation of the Registrar and the Accountant-General of the Court of Chancery82 (b) the fact that a considerable increase in business in the Court of Chancery had meant that alterations and improvements were needed urgently to the accommodation of the Registrar, Accountant-General and the Master or Keeper of the Reports of the Court (c) that the cost of these works would exceed £500.

32. The 1835 Act accordingly provided for the following matters- (a) the Lord Chancellor was authorised to order the carrying out of the necessary works at a cost not exceeding £3000 (section 1) (b) these costs were to be met from accumulated suitor’s cash (section 2) (c) status of the Act (section 3).

33. The offices were probably those previously occupied by the Six Clerks i.e. 10 Stone Buildings, Lincoln’s Inn (referred to earlier in this note). The exact date when the works authorised by this Act were duly carried is not certain, but it is clear that the Act became unnecessary by, at the latest, 1882 when the building was handed back to Lincoln’s Inn. On any view the Act has long been unnecessary.

Extent 34. The provisions proposed for repealed applied only in the area of central London around Chancery Lane.

81 52 Geo.3 c.liv (1812). 82 The office of Accountant General was established in 1725: 12 Geo.1 c.32/33 and 54 Geo.3 c.14 in order to deprive Masters of the Court of Chancery of their control over suitors’ money. Thereafter the money was placed in the Bank of England under the control of the Accountant General. The office was abolished in 1872 (35 & 36 Vict. c.44) and his duties were passed to the Paymaster-General.

340 Consultation 35. The Department for Constitutional Affairs, HM Courts Service, the National Archives,83 the Honourable Society of Lincoln’s Inn, Maughan Library (for Kings College London) and the City of London Corporation, have been consulted about these repeal proposals.

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83 The Public Record Office, now known as “the National Archives”, is consulted as former occupier of the old court offices in Chancery Lane referred to in the 1810 Act.

341 GROUP 5 - MARKETS

______

Reference Extent of repeal or revocation ______

54 Geo.3 c.cxv (1814) The whole Act. (Sheepskin Inspectors (King’s Place Market, St Mary Newington) Act) ______

54 Geo.3 c.cxv (1814) (Sheepskin Inspectors (King’s Place Market, St Mary Newington) Act)

1. The purpose of this 1814 Act was to extend the provisions of an 1808 Act, relating to the inspection of sheep and lamb skins, to a new market at St Mary Newington. The subsequent repeal of the 1808 Act has made the 1814 Act unnecessary.

2. The Act of 180884 amended earlier legislation relating to the use of horse hides in the making of boots and shoes. This earlier legislation also contained provisions to prevent damage to raw hides and skins during the flaying process. The 1808 Act required that the raw skins of all sheep and lambs slaughtered within five miles of the Royal Exchange in the City of London were brought for inspection and marking either to one of the existing sheepskin markets (including the markets in Southwark and Whitechapel) or to any other market or place subsequently appointed by Act of Parliament. The 1808 Act also provided for the annual election of inspectors to inspect and mark these skins.

3. The 1814 Act appointed the newly-opened skin market at King’s Place, near Blackman Street in the Parish of St Mary Newington in the county of Surrey (now in the London Borough of Southwark), as a place to which sheep and lamb skins might be sent for inspection and marking, pursuant to the 1808 Act. The 1814 Act also extended the powers of the Southwark market inspectors to this new market. Finally, the 1814 Act extended the five mile limit of the 1808 Act to 15 miles in certain cases.

4. However, the 1808 Act and the earlier legislation have been repealed by an Act of 182485 which declared these earlier Acts to be unnecessary and oppressive in their operation. Although the 1824 Act did not expressly repeal the 1814 Act as well,

84 48 Geo.3 c.lxxi (London Hides and Skin Trade). 85 5 Geo.4 c.57 (Horse Hides).

342 its repeal of the 1808 Act has made the ancillary 1814 Act unnecessary. It may be repealed on that basis.86

Extent 5. The 1814 Act applied only within a 15 mile radius of the City of London.

Consultation 6. The Department of Trade and Industry, the City of London Corporation, the London Borough of Southwark, the Worshipful Company of Cordwainers, the Worshipful Company of Curriers, the Leathersellers’ Company and the National Market Traders’ Federation have been consulted about this repeal proposal.

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86 The King’s Place market has long ceased to exist. Its exact date of closure is uncertain but was probably no later than 1833 when the Leather Market in Weston Street, Bermondsey, opened.

343 Reference Extent of repeal or revocation ______

Belgrave Market Act 1869 The whole Act. (32 & 33 Vict. c.clvii)

Belgrave Market (Extension of The whole Act. Time) Act 1873 (36 & 37 Vict. c.clxix) ______

Belgrave Market Acts

1. This note proposes the repeal of two obsolete Victorian Acts passed to establish a market in the Chelsea area of south-west London.

Belgrave Market Act 1869 2. The purposes of the Belgrave Market Act 1869 (“the 1869 Act”) were set out at the beginning of the preamble to the Act- Whereas the establishment of a market for the sale of butchers meat, poultry, game, fish, butter, cheese, milk, vegetables, and other animal and vegetable products, and other marketable commodities, and the erecting, providing, maintaining, and regulating a market, market places, market houses, and other houses, shops, and stalls in connexion therewith, in the parish of Saint Luke, Chelsea, would be highly advantageous to the inhabitants of that parish and the neighbourhood…

3. The 1869 Act included the following provisions- (a) the incorporation of a Company to be known as “The Belgrave Market Company” (“the Company”) to set up and maintain the market (section 4) (b) authorising the Company to build the market and acquire the land necessary for that purpose (section 5) (c) prohibition on entering land of the Cadogan estate (except with consent) or land of the Marquis of Westminster (sections 6 and 7) (d) provisions relating to the Company’s share capital, borrowing powers, meetings and directors (sections 8 to 22) (e) the Company’s compulsory purchase powers to expire in August 1872 (section 23) (f) market to be completed, and the Company’s powers for constructing the market to cease, by August 1874 (section 24) (g) powers for the Company to acquire easements and additional land by agreement, and to stop up and enclose certain yards, courts and places within the parish of St Luke, Chelsea (sections 25 to 27)

344 (h) the Company to serve notice before taking possession of certain premises (section 28) (i) power for the Company to erect dwelling houses and shops, and to sell land (sections 29 and 30) (j) receipts for, and application of, purchase moneys; compensation for deficiency in local rates; charging of tolls, etc (sections 31 to 38 and Schedules) (k) miscellaneous savings, and expenses of the 1869 Act (sections 39 to 42).

Belgrave Market (Extension of Time) Act 1873 4. The purpose of the Belgrave Market (Extension of Time) Act 1873 (“the 1873 Act”) was to extend the time limits in the 1869 Act for the compulsory purchase of land and completion of the market.

5. Accordingly the 1873 Act provided that certain of the powers of compulsory purchase granted by the 1869 Act should be revived and extended until 21 July 1875 (section 5), and that the period for completing the market should be extended until 21 July 1876. The remainder of the 1873 Act dealt with ancillary matters.87

6. Despite the extension of the time granted by the 1873 Act, there is no indication that the Belgrave market was ever built. Nor is there any record of the Company in the records of active companies held at Companies House. Moreover, given that the powers granted by Parliament for the compulsory acquisition of land for the market and for the completion of the market expired more than 130 years ago, it seems clear that both the 1869 and 1873 Acts are now unnecessary. Their repeal is proposed on that basis.

Extent 7. The provisions proposed for repeal applied only in the Chelsea area of London.

Consultation 8. The Department of Trade and Industry, the Royal Borough of Kensington and Chelsea, Westminster City Council, the Cadogan Estate, the Grosvenor Estate (for

87 Short title, construction of Acts and interpretation (ss 1 to 4), saving (s 7), qualification of directors (s 8), expenses of Act (s 9).

345 the Duke of Westminster) and the National Market Traders’ Federation have been consulted about these repeal proposals.

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346 Reference Extent of repeal or revocation ______

Leadenhall Market Act 1871 The whole Act. (34 & 35 Vict. c.liv)

Leadenhall Market Act 1879 Section 16. (42 & 43 Vict. c.cii) ______

Leadenhall Market Act 1871

1. According to its long title, the main purpose of the Leadenhall Market Act 1871 (“the 1871 Act”) was to extend and regulate Leadenhall Market in the City of London. The construction of a replacement market a few years later made the 1871 Act unnecessary and provision for its repeal was included in the Leadenhall Market Act 1879 (“the 1879 Act”). This repeal has, however, never been formally activated. This note proposes that such repeal should now proceed.

2. Today Leadenhall Market is mainly a shopping arcade rather than a market. In the 14th century, however, Leadenhall Market was a major market for meat, game, poultry and fish. The original market building was a hall with a leaden roof, hence the name of the market.

3. The 1871 Act provided for the enlargement of the market. The City of London which, then as now, owned the market, was given powers to purchase land and raise money to finance the enlargement.

4. The effects of the 1871 Act were short-lived. The preamble to the 1879 Act records that “it would be of public advantage if the said Act [i.e. the 1871 Act] were repealed, and Leadenhall Market as now held were discontinued and abolished”. In short, the 1879 Act had the effect of sweeping away much of the old market. A new market was constructed on the site, but on a larger scale, which involved occupying more land and removing houses on the east and west sides so as to form new streets. The first stone of the new Leadenhall Market, designed by Sir Horace Jones, the City architect, was laid on 28 June 1881.

5. Section 16 of the 1879 Act provides as follows- 16. When and as soon as Leadenhall Market provided by the Corporation [i.e. the City of London] in pursuance of the provisions of this Act is ready to be opened for the use of the public, the Corporation shall fix a day for the opening thereof, and by a notice under the hand of the town clerk of the City

347 of London, published in the London Gazette, notify that such market has been provided, and the day and hour when the same will be opened, and from the day so notified the Leadenhall Market Act, 1871, shall be and the same is hereby repealed, and the old market shall be discontinued and shall cease to be used as a market, and no market shall thereafter be holden on the site thereof.

6. In other words, the 1871 Act was to have been repealed on the day given by notice, published in the London Gazette, as the opening day of the new Leadenhall Market. Since, however, no such notice appears to have been published in the London Gazette, the 1871 Act remains in force to this day.

7. Given that the re-opening of the new Leadenhall Market occurred over 120 years ago, it is clear that the repeal of the 1871 Act is long overdue. This repeal is now proposed, with section 16 of the 1879 Act being repealed consequentially.

Extent 8. The provisions proposed for repeal applied only in the City of London.

Consultation 9. The Department of Trade and Industry, the City of London Corporation, and the National Market Traders’ Federation have been consulted about these repeal proposals.

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348 Reference Extent of repeal or revocation ______

Newport Market Act 1872 The whole Act. (35 & 36 Vict. c.lxxxii) ______Newport Market Act 1872 1. This note proposes the repeal of an obsolete Victorian Act passed to revive a market in Central London to the north of Leicester Square. The market was never built.

Background88 2. A market known as Newport Market was built by Dr Nicholas Barbon in the 1680s. The area covered by the market was located within the area of central London that is today bounded by Shaftesbury Avenue, West Street, Little Newport Street and Newport Place.89

3. By letters patent dated 27 April 1686, James II granted a licence to hold a market in Newport Garden on Tuesdays, Thursdays and Saturdays to Dr Barbon’s trustee, John Bland. The licence covered the sale of all merchandise except live cattle. In 1725 Daniel Defoe described Newport Market as one of the principal meat markets of London.90 Cattle bought at live cattle markets were driven to Newport Market to be slaughtered and sold.

4. By 1840, however, the business of the market had fallen away. The Newport Market area had degenerated into a slum which was a haunt of thieves and prostitutes. In the 1860s, a group of philanthropists established the Newport Market Refuge for the destitute and homeless. The Refuge occupied the market-house and other parts of the market. Newport Market thereafter became effectively defunct.

5. The passing of the Newport Market Act 1872 (“the 1872 Act”) was an effort to revive the old market. The terms of the 1872 Act are outlined below. Suffice it to say that the 1872 Act established the “Newport Market Company” (“the Company”) to make and maintain a general market on or near the site of the old market. New

88 Unless otherwise acknowledged, background information comes from ‘Newport Market Area: Newport Estate’, Survey of London: vols 33 and 34: St Anne Soho (1966) pp 360-379 – www.british- history.ac.uk/report.asp?compid=41112. 89 Shaftesbury Avenue was constructed in 1886 and the Charing Cross Road, which today straddles the area, was constructed the following year. The market drew its name from the Earl of Newport (Mountjoy Blount) who occupied a large house (Newport House) in this area. 90 Daniel Defoe, A Tour Thro’ London about the year 1725.

349 roads were to be built and streets widened for the purpose. The 1872 Act gave the Company five years to complete the main construction works, after which period the powers would cease.91

6. In the event no new market was ever built, probably because of difficulties in raising the necessary funds. In March 1879, the Metropolitan Board of Works began compulsory purchase proceedings in respect of the Newport Market and surrounding areas. The construction of the Charing Cross Road and Shaftesbury Avenue in the mid-1880s resulted in the demolition of the old market buildings and the redevelopment of the entire area.

The 1872 Act 7. The 1872 Act included the following provisions: (a) the incorporation of the Company to make and maintain the market in the area prescribed (sections 4 and 5) (b) powers for the Company to build the market and acquire the necessary land, construct new streets and stop up existing streets etc (sections 6 to 13) (c) the Company’s compulsory purchase powers to expire in July 1875; such powers not to extend to particular premises or interests (sections 14 to 18) (d) provisions as to local rates, protection of sewers and water and gas pipes (sections 19 to 26) (e) provisions relating to the Company’s share capital, borrowing powers, meetings and directors (sections 27 to 40) (f) the market works to be completed by July 1877, after which the Company’s powers to construct the market cease (section 41) (g) the Company to serve notice before taking possession of certain premises (section 42) (h) power for the Company to levy market tolls (sections 43 to 48 and Schedules) (i) power for the Company to erect dwelling houses and shops; application of purchase moneys; power to grant leases, etc (sections 49 to 52) (j) power for the Company to enter agreements as to the new street from Leicester Square to Oxford Street (Charing Cross Road) (section 53) (k) miscellaneous savings, and expenses of the 1872 Act (sections 54 to 56).

91 The 1872 Act, s 41. The period expired on 18 July 1877.

350 Conclusion 8. Despite the powers provided by the 1872 Act to revive the old Newport Market, no new market was ever built. The site of the old market was cleared away when the whole area was cleared and re-developed in the 1880s. The Company’s name does not appear in the records of active companies held at Companies House, and must be assumed to be defunct.

9. Given that the powers to revive the market provided by the 1872 Act expired in July 1877, it seems clear that this Act is now unnecessary. Its repeal is proposed on that basis.

Extent 10. The provisions proposed for repeal applied only in the central London area.

Consultation 11. The Department of Trade and Industry, the Greater London Authority, Westminster City Council and the National Market Traders’ Federation have been consulted about these repeal proposals.

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351 GROUP 6 – GENERAL REPEALS

______

Reference Extent of repeal or revocation ______

18 Geo.3 c.67 (1778) The whole Act. (Middlesex Sessions House Act) ______

18 Geo.3 c.67 (1778) (Middlesex Sessions House Act) Introduction 1. The purpose of this 1778 Act was to authorise the justices of the peace for the county of Middlesex to sell their existing Sessions House and build a new Sessions House in a more convenient location. The building constructed under the authority of this Act has long ceased to be used as a Sessions House, and is now in private ownership. The 1778 Act is therefore now unnecessary.

Background 2. The Middlesex Sessions was the court with responsibility for the ancient county of Middlesex.92 It was the equivalent of the courts of Quarter Sessions in other English counties.93 In addition to the full range of judicial and criminal business, the court was involved in a wide rage of activities that would now be the responsibility of central and local government. These included issues concerning taxation, highways and bridges, electoral registration, vagrancy and poor law, prices and wages, licensing of places of entertainment and alehouses, the care of the insane, registration of aliens and coroners records.94

3. In 1612 the Middlesex Sessions moved to Hick’s Hall in St John Street, Clerkenwell.95 Unfortunately this location, being in the middle of a busy street, became too noisy for court business, and the court moved out in 1778. The new Sessions House was built in 1779-82 in nearby Clerkenwell Green. The disposal of

92 The county of Middlesex no longer exists as an administrative area. It was abolished as an administrative county by the London Government Act 1963. But the county of Middlesex as it existed in the eighteenth and nineteenth centuries, up to the boundary changes made by the Local Government Act 1888 (which created the county of London), stretched along the north bank of the Thames from the River Colne in the west to the River Lea in the east, excluding the City of London but including such places as Westminster, Fulham, St Marylebone, Shoreditch and Stepney. 93 “Quarter Sessions” refers to the fact that in most counties the courts convened four times a year. However in Middlesex the court could be in session throughout the year. 94 For further information see Middlesex Sessions of the Peace at www.cityof london/corporation. 95 Baptist Hicks, first Viscount Campden (1551-1629) built the Sessions House at his own expense on a site granted to the Middlesex justices by James 1. The building was completed in 1612.

352 the old Sessions House and the building and furnishing of the new was sanctioned by the 1778 Act.

4. The 1778 Act provided for the following matters:96 (a) appointing of Commissioners for carrying out the purposes of the Act (b) Commissioners authorised to demolish old Sessions House and restore the site for public use (c) Commissioners authorised to buy land and build new Sessions House (d) Justices authorised to hire temporary premises for the holding of Sessions pending completion of building works (e) City of London to contribute £11,000 towards the cost of building the new Sessions House (such sum to be raised by annuities chargeable on the Orphans Fund97) (f) any further funding needed to build the new Sessions House to come from the county rates.

5. This Sessions House was duly built and was used for court hearings until 1920-21 when hearings were transferred to new premises at Newington Causeway in Southwark. Although the building continues in use (it is today owned and occupied by Central London Masonic Centre Ltd) the purposes for which it was designed – and the purposes of the 1778 Act – no longer exist. Accordingly the 1778 Act is now unnecessary and may be repealed on that basis.

Extent 6. The 1778 Act applied only in the central London area.

Consultation 7. The Department for Constitutional Affairs, HM Court Service, the City of London Corporation, the London Borough of Islington, Central London Masonic Centre Ltd and the United Grand Lodge of England (the governing body of Freemasonry in England and Wales) have been consulted about this repeal proposal. LAW/005/007/06 01 February 2008

96 These following matters are not identified by reference to section numbers because the 1778 Act was not divided into sections. 97 This Fund was established by a 1694 Act (5 & 6 Will & Mar c.10) for the relief of the orphans and other creditors of the City of London. The City of London’s debt to the Fund was totally discharged by 1820, and all outstanding charges were liquidated by 1832. It then became the London Bridge Approaches Fund.

353 Reference Extent of repeal or revocation ______

39 Geo.3 c.lviii (1799) The whole Act. (London, Westminster and Southwark Porterage Rates Act) ______

39 Geo.3 c.lviii (1799) (London, Westminster and Southwark Porterage Rates Act)

1. According to its long title, the purpose of this 1799 Act was- for regulating the Rates of Porterage to be taken by Innkeepers and other Persons within the Cities of London and Westminster, the Borough of Southwark, and places adjacent.

2. The 1799 Act needs viewing in its historical context. It pre-dated the railways as a means of conveying packages around the country. Moreover, such systems as existed in 1799 for the carriage of packages were operated by private carriers rather than by the early postal service. Packages were usually sent by road carriage with instructions for the carrier to deposit them at an inn. The innkeeper would be instructed either to hold the package for collection by the final recipient or to arrange its delivery to that person.

3. The 1799 Act was intended to control the fees charged by innkeepers and others (such as warehousemen) with whom the packages were deposited, and by the porters who actually carried and delivered them. The preamble to the Act explains that the existing laws were insufficient to prevent the “great Exactions and Abuses … daily practised in the Porterage or Delivery of Boxes, Baskets, Packages, Parcels, Trusses,98 Game and other things … brought by Stage Waggons, Carts, Public Stage Coaches or Carriages”.

4. Section 1 limited the fees that could be charged for delivering these goods. As from 5 July 1799, no innkeeper, warehousekeeper or other person to whom any box, basket, package, parcel, truss, game or other thing not exceeding 56 pounds in weight was brought by any stage waggon or cart, public stage coach or carriage could charge more than the following fee for carrying and delivering the item within the Cities of London and Westminster, the Borough of Southwark and surrounding areas-

98 This probably describes bundles such as straw or hay.

354 Distance Fee Not exceeding 0.25 mile 3d. Exceeding 0.25 mile up to 0.5 mile 4d. Exceeding 0.5 mile up to 1 mile 6d. Exceeding 1 mile up to 1.5 miles 8d. Exceeding 1.5 miles up to 2.0 miles 10d. For every extra 0.5 mile 3d.

5. Section 2 imposed a penalty of between 5 and 20 shillings on anyone who charged in excess of this fee scale for carrying or delivering such goods.

6. Sections 3 to 5 provided for the arrangements for the delivery of goods. Before the goods were handed to a porter for delivery, a ticket had to be issued setting out such details as the name of the porter and the fee being charged (section 3). The goods usually had to be delivered within six hours if they had originally been deposited at the inn or warehouse by public stage coach (section 4) or within 24 hours if they had originally been deposited by public stage waggon (section 5). Sections 6 to 8 prescribed the arrangements in cases where the goods were deposited at the inn or warehouse for collection by, rather than delivery to, the owner. In these cases, limits were set on the storage charges that could be made. Section 9 imposed penalties on misbehaving porters. Section 10 provided for the situation where the owner refused to pay for the costs of carriage and delivery. Sections 11 to 19 were concerned with ancillary matters such as the powers of justices to enforce the provisions of the Act.

7. The regime established by the 1799 Act has long been obsolete. The need to regulate the service provided by innkeepers and porters in holding and delivering packages and other goods became unnecessary once that service was provided by institutions such as the railways and the Post Office.99 The 1799 Act is now obsolete and may be repealed on that basis.

99 The parcel-delivery market, long the preserve of private carriers, became dominated by the railways from 1830 onwards. Following negotiations with the railways for the carriage of parcels by rail, culminating in the passing of the Post Office (Parcels) Act 1882, the Post Office launched its ‘Inland Parcels Post’ service in 1883. This facilitated the previously complex process of sending parcels by rail, a process that required the co-operation of all the railway companies along any given route.

355 Extent 8. The 1799 Act applied only in central London and surrounding areas.

Consultation 9. The City of London Corporation, the Greater London Authority and the British Institute of Innkeeping have been consulted about this repeal proposal.

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356 Reference Extent of repeal or revocation ______

50 Geo.3 c.xxviii (1810) The whole Act. (Westminster Sunday Tolls Act)

______

50 Geo.3 c.xxviii (1810) (Westminster Sunday Tolls Act)

1. According to its long title, the purpose of this 1810 Act was to- revive and continue the Terms and Powers of an Act passed for empowering the Commissioners for paving, cleansing, and lighting the Squares, Streets, and Lanes within the City and Liberty of Westminster and Parts adjacent, to collect certain Tolls on Sundays upon the several Roads therein mentioned.

2. The Act being revived and continued by the 1810 Act was an Act of 1765100 which authorised the charging of tolls on any coach, carriage, horse, mule or ass that used certain turnpike roads in the Westminster area on Sundays. The toll money was required to finance the paving, cleansing and lighting of squares, streets and lanes within the City of Westminster and surrounding parishes. The turnpikes at which the tolls would be charged included those at or near Westminster Bridge, St James’ Park, Hyde Park, Hyde Park Corner, Tyburn, St Marylebone, Portland Street, Tottenham Court and Gray’s Inn Lane. The Act was expressed to remain in force for a period of 21 years.

3. The 1810 Act, in its preamble, recorded that although the term granted by the 1765 Act had expired, the Act needed to be revived and continued in order to clear debts that had accrued under it.

4. Accordingly the 1810 Act provided for- (a) the revival and continuation of the 1765 Act (section 1) (b) the appointment of additional Commissioners to put the Act into operation (section 2) (c) exemptions from the tolls and penalties charged under the 1765 Act (sections 3 and 4) (d) expenses, status and duration of Act (sections 5 to 7).

5. Section 7 provided for the 1810 Act to remain in force for a period of seven years, with a provision for earlier determination in the event of all outstanding debts

100 5 Geo.3 c.13.

357 being cleared before then. It follows that this Act has ceased to have any effect for nearly two centuries and may now be formally repealed. The 1765 Act which it continued was repealed in 1948.101

Extent 6. The provision proposed for repeal applied only in the City of Westminster and surrounding areas.

Consultation 7. Westminster City Council and the City of London Corporation have been consulted about this repeal proposal.

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101 Statute Law Revision Act 1948, s 1, Sch 1.

358 Reference Extent of repeal or revocation ______

53 Geo.3 c.cxvi (1813) The whole Act. (King’s Bench, Marshalsea and Fleet Prisons (Relief of Poor Prisoners) Act) ______

53 Geo.3 c.cxvi (1813) (King’s Bench, Marshalsea and Fleet Prisons (Relief of Poor Prisoners) Act)

1. The sole purpose of this 1813 Act was to repeal an Act of 1812102 so far as that Act related to the relief of debtors in certain London prisons. The 1813 Act became spent once the repeal took effect at Royal Assent on 3 June 1813.

2. The 1812 Act authorised justices of the peace to order that a person who had been imprisoned for debt (otherwise than in a county gaol) and who was unable to support himself while in prison should be awarded financial relief from parish funds.103

3. The 1813 Act repealed the 1812 Act as it related to the parishes of St George the Martyr in Southwark and St Bride (otherwise known as St Bridget) in the City of London. These two parishes between them housed three debtors’ prisons – the Kings Bench Prison and the Marshalsea Prison (St George), and the Fleet Prison (St Bride).104 The preamble to the 1813 Act records that all three prisons contained many prisoners who originated in parishes far removed from St George and St Bride, the inference being that the funding arrangements authorised by the 1812 Act bore harshly on the two parishes and on their rate-paying inhabitants. The repeal had the effect of lifting this financial burden from the two parishes.

4. As explained above, the 1813 Act has been spent since it came into force in June of that year. Its formal repeal is now proposed on that basis.

102 52 Geo.3 c.160 (relief of debtors in prison). This Act has since been wholly repealed: Statute Law Revision Act 1873, s 1, Sch. 103 Persons imprisoned for debt at that time were required to pay for their own maintenance whilst in prison. 104 All three prisons have long ceased to exist. They were consolidated in 1842 and became known as the Queen’s Prison, which institution was closed in 1862 before being demolished in 1879. The Fleet Prison was demolished in around 1845. The Marshalsea is referred to by Charles Dickens in Little Dorrit (published 1857). His father, John Dickens, was imprisoned in the Marshalsea in 1824, thereby forcing his son to leave school at the age of 12 and go to work in a bootblack factory.

359 Extent 5. The provisions proposed for repeal applied only in the City of London and in the London Borough of Southwark.

Consultation 6. The City of London Corporation, the London Borough of Southwark, the Home Office and HM Prison Service have been consulted about this repeal proposal.

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360 Reference Extent of repeal or revocation ______

59 Geo.3 c.cxxvii (1819) The whole Act. (London Bread Trade Act)

60 Geo.3 & 1 Geo.4 c.i (1819) The whole Act. (Bread Industry (London) Act)

1 Geo.4 c.iv (1820) The whole Act. (Bread Trade Act) ______

London Bread Trade Acts

1. This note proposes the repeal of three obsolete local Acts relating to the London bread trade.

59 Geo.3 c.cxxvii (1819) (London Bread Trade Act) 2. This 1819 Act repealed an Act of 1815105 regulating the bread trade in London and replaced it with new provisions to control quality and pricing. The 1819 Act contained the following provisions: (a) repeal of the 1815 Act (section 1) (b) penalty for selling underweight bread within the City of London and the Liberties thereof and within ten miles of the Royal Exchange; no penalty unless bread weighed in presence of magistrate within 24 hours of being baked (sections 2 and 3) (c) lawful for loaves to be sold by price, rather than by weight, but every baker selling priced loaves by weight must keep scales for weighing such loaves upon request (sections 4 and 5) (d) provisions as to trial of offences, penalties, appeals and limitation (sections 6 to 17) (e) Act not to prejudice rights of the City of London, the Worshipful Company of Bakers etc (section 18) (f) Act to continue in force until two months after commencement of the next Session of Parliament (section 19) (g) status of Act (section 20).

105 55 Geo.3 c.xcix (London Bread Trade).

361 60 Geo.3 & 1 Geo.4 c.i (1819) (Bread Industry (London) Act) 3. This 1819 Act (“the second 1819 Act”) was passed to continue the earlier 1819 Act (“the first 1819 Act”) before it expired. Accordingly the second 1819 Act simply provided that the first 1819 Act was to continue in force until 24 June 1820.

1 Geo.4 c.iv (1820) (Bread Trade Act) 4. According to its long title, this 1820 Act was passed- to continue, until the Twenty-fourth Day of June One thousand eight hundred and twenty two, Two Acts, of the Fifty-ninth and Sixtieth Years of His late Majesty, for regulating the Weight and Sale of Bread.

5. Accordingly the 1820 Act had the effect of continue the first 1819 Act (as continued by the second 1819 Act) until 24 June 1822. Thereafter all three Acts expired.

Conclusion 6. The expiry of all three Acts at the end of 24 June 1822 means that all three ceased to have effect on that date, although they remain on the statute book pending a formal repeal. Such a formal repeal is now proposed.

Extent 7. The provisions proposed for repeal applied only in the London area.

Consultation 8. The Department of Trade and Industry, the City of London Corporation, Westminster City Council, the London Borough of Southwark and the Worshipful Company of Bakers have been consulted about these repeal proposals.

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362 Reference Extent of repeal or revocation ______

7 Geo.4 c.xlii (1826) The whole Act. (Westminster Bridewell Act) ______

7 Geo.4 c.xlii (1826) (Westminster Bridewell Act)

1. This note proposes the repeal of an 1826 Act, passed to authorise the rebuilding of a prison known as the Westminster Bridewell106 or House of Correction. This prison was demolished in 1884 to make way for the building of Westminster Cathedral on the same site.

Background107 2. The prison that became known as the Westminster Bridewell was originally built around 1618 to the north of Greencoat School and to the west of Artillery Row in Westminster. The area was then known as Tothill Fields. The preamble to the 1826 Act records that this prison was both too small and too insecure to ensure the safety of the inmates. The Act authorised the purchase of a new site and the construction of a new prison to replace the existing one. The new prison, opened in 1834, was built on an eight acre site of open ground, now enclosed by Morpeth Terrace to the west, Francis Street to the south and east, and Ashley Place and Howick Place to the north. Initially intended for men and women with sentences less severe than transportation, from 1850 it was restricted further to convicts of either sex below the age of 17. The total number held at any one time was about 900.

The 1826 Act 3. The 1826 Act provided as follows: (a) appointment of Commissioners to build the new prison, meetings of Commissioners, appointment of clerks and surveyors (sections 1 to 12) (b) Commissioners authorised to purchase land, arrangements for settling value of land purchased, transfer of title, sale of surplus land (sections 13 to 31)

106 “Bridewell” is a generic term meaning ‘prison’ or ‘House of Correction’. It has its origins in an area of London between Fleet Street and the Thames where a House of Correction stood until 1863. 107 Background information comes from the Postcodes Project www.museumoflondon.org.uk/ postcodes/places/SW1.htm; and from Art and Architecture at www.westminstercathedral.org.uk/art/ art.cathsite.html.

363 (c) Commissioners authorised to build a new prison, prisoners from the existing prison to be transferred to the new prison, and the old prison to be sold (sections 32 to 35) (d) borrowing of money to pay for the new prison, including mortgaging the county rate for maximum of 40 years and raising annuities (sections 36 to 41) (e) the new prison to be under control of the justices for the City of Westminster and repaired at the expense of the county rate, recovery of penalties, convictions, appeals, savings and status of the Act (sections 42 to 51)

4. The 1826 Act was subsequently amended by an Act of 1844.108 This had the effect of passing control of the new prison from the justices for the City of Westminster to the justices for the county of Middlesex and establishing the new prison as a House of Correction for that county.109

5. The 1826 Act became unnecessary when the prison was demolished in 1884 to make way for Westminster Cathedral, Clergy House and the Choir School.110 The Act may therefore be repealed on that basis.

Extent 6. The provisions proposed for repeal applied only in the City of Westminster.

Consultation 7. Westminster City Council, the Home Office, HM Prison Service and Westminster Cathedral have been consulted about this repeal proposal.

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108 7 & 8 Vict. c.71, ss 13, 15, 16. This Act was finally repealed by the Statute Law Revision Act 1953. 109 7 & 8 Vict. c.71, s 13 (which records that the new prison was much larger than was needed for the City of Westminster, whereas the House of Correction for the county of Middlesex was too small). 110 See www.westminstercathedral.org.uk.

364 Reference Extent of repeal or revocation ______

Metage on Grain (Port of London) The whole Act. Act 1872 (35 & 36 Vict. c.c) ______

Metage on Grain (Port of London) Act 1872

1. The main purpose of the Metage on Grain (Port of London) Act 1872 (“the 1872 Act”) was to abolish the compulsory metage dues charged on grain111 that entered the Port of London.

2. The preamble to the 1872 Act records that the City of London had long been entitled, or claimed to be entitled, to measure many commodities entering the Port of London, including grain, and to charge dues, known as metage dues, on the commodities so measured.112 In addition to the metage dues arising from grain, fees called fillage and lastage were payable in respect of the grain being measured. The metage dues were payable to the City of London and the fees were payable to the City’s officers or servants who were employed in the measuring process.

3. By section 3 of the 1872 Act, metage of grain, metage dues on grain and the fillage and lastage fees were abolished at the end of October 1872. Section 4 provided that, for 30 years from the end of October 1872, the City of London was entitled to charge a duty on all grain brought into the Port of London. This duty, known as “the City of London Grain Duty”, was to be used for the “preservation of open spaces in the neighbourhood of London, not within the metropolis as defined by ‘The Metropolis Management Act 1855’”. The preamble to the 1872 Act makes it clear that this new grain duty was a replacement for the metage dues on grain that were previously charged.

4. The remaining provisions of the 1872 Act are ancillary upon the replacement of the metage dues by the new grain duty. They include the payment of compensation to the officials previously engaged in calculating and collecting the metage dues (section 8) and provisions facilitating borrowing against the security of the new duty (sections 9 to 13).

111 “Grain” is defined as corn, pulse and certain seeds: the 1872 Act, s 2. 112 “Metage” in this context derives from the process of measuring a volume or weight.

365 5. Sections 19 and 20 relate to the “fraternity of Fellowship Porters, otherwise Billingsgate porters”. This fraternity was constituted in the early 1600s and exercised the rights of the City of London for the metage of salt, grain, fruit and other commodities. They were known variously as Billingsgate Porters, Corn and Salt Porters and Fellowship Porters, and were regulated by orders made by the Court of Common Council of the City of London. Section 19 provided that directors of the Corn Exchange Company and the London Corn Exchange Company should be appointed to the governing body of the Fellowship Porters. Section 20 provided that no alteration in any charges made by the fraternity for the porterage of grain should be made without a unanimous resolution of this governing body including the two directors appointed under section 19. In the event of disagreement between these two directors and the other members of the governing body, a reference of the matter could be made to the President of the Board of Trade for his decision. The dissolution of the Fellowship by Act of Common Council in 1894113 means that sections 19 and 20 are now obsolete.

6. The 1872 Act as a whole ceased to serve any useful purpose once the 30 year duration of the City of London Grain Duty expired in 1902. The duty was never extended by subsequent Act. Accordingly the 1872 Act may now be repealed as unnecessary.

Extent 7. The 1872 Act applied only within the City of London.

Consultation 8. The City of London Corporation, the Department of Trade and Industry, the Grain and Feed Trade Association Ltd and the Baltic Exchange have been consulted about this repeal proposal.

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113 The Act of Common Council was passed on 15 March 1894. It provides that the Fellowship should be dissolved and disbanded on 24 June 1894.

366 Reference Extent of repeal or revocation ______

City of London Free Ferry Act 1884 The whole Act. (47 & 48 Vict. c.clxxvi) ______

City of London Free Ferry Act 1884

1. According to its long title, the principal purpose of the City of London Free Ferry Act 1884 (“the 1884 Act”) was “to enable the mayor and commonalty and citizens of the City of London to establish a Free Steam Ferry across the River Thames east of London Bridge”.

2. In the 1880s, London Bridge was the only bridge spanning the Thames in the City of London. As London grew, more bridges were added. Since, however, these new bridges were all to the west of London Bridge, and Tower Bridge was not completed until 1894, crossing the Thames by ferry boat was the only option available to the inhabitants of the densely populated east end.

3. The 1884 Act was an enabling measure to authorise the City of London to purchase or lease an existing ferry undertaking operated by Thames Steam Ferry Company Ltd. The ferry service had started in October 1877 and ran from the wharf next to the Wapping dock stairs called Tunnel Wharf over to Rotherhithe Church Stairs on the south side. The ferry was plagued with practical problems and as a result was not a commercial success. It closed in 1886. The City of London never used its powers under the 1884 Act to take over responsibility for the ferry. It seems likely that the reason for this was that other crossings of the Thames were being considered by Parliament during the 1880s. No other ferry was established on the same route.114

4. The 1884 Act included the following provisions: (a) short title (section 1) (b) powers conferred by Act to be exercised by the Court of Common Council of the City of London (section 2) (c) incorporation of the Lands Clauses Consolidation Act 1845 (section 3) (d) interpretation (section 4)

114 See Denis Smith, Civil Engineering Heritage London and the Thames Valley, published by Thomas Telford (2000) for more information.

367 (e) power to acquire land and to be granted easements by agreement (sections 5 and 6) (f) power for the City of London to acquire the ferry undertaking (section 7) (g) transfer of ferry undertaking to be by deed; receipt of purchase moneys (sections 8 and 9) (h) power for ferry undertaking to be leased (rather than sold) to the City of London; such lease to be by deed (sections 10 to 13) (i) power for the City of London to build, buy or hire vessels (section 14) (j) no tolls to be charged for using the ferry (section 15) (k) power to obtain information about use of the ferry service (section 16) (l) the City of London empowered to make byelaws relating to the ferry service including penalties for contraventions; byelaws to be published115 (sections 17 to 20) (m) the City of London empowered to make agreements with the Metropolitan Police for maintaining order on the ferry service (section 21) (n) the City of London empowered to raise money for the purposes of the ferry service including using the rents and profits of the Bridge House Estates (sections 22 and 23) (o) miscellaneous financial provisions (sections 24 to 27) (p) appointment of committee to implement 1884 Act (section 28) (q) savings and expenses of Act (sections 29 to 31).

5. It is clear that the powers provided by the 1884 Act to operate a steam ferry service are no longer required today. It is likely that the opening of Tower Bridge in 1894 would have made any ferry service redundant. The 1884 Act accordingly no longer serves any useful purpose and may now be repealed as unnecessary.

Extent 6. The 1884 Act applied only in the London area.

Consultation 7. The City of London Corporation, Transport for London and London River Services have been consulted about this repeal proposal.

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115 In the event, no such bye laws were ever made.

368 Reference Extent of repeal or revocation ______

Westminster Improvement Commissioners The whole Act. Winding-up Act 1891 (54 & 55 Vict. c.cxlii) ______

Westminster Improvement Commissioners Winding-up Act 1891

1. According to its long title, the purpose of the Westminster Improvement Commissioners Winding-up Act 1891 (“the 1891 Act”) was “to wind up the affairs of the Westminster Improvement Commissioners and to distribute their Assets under the direction and control of the High Court and to dissolve the said Commissioners and for other purposes”.

2. The Westminster Improvement Commissioners (“the Commissioners”) were incorporated by the Westminster Improvement Act 1845.116 That Act, and subsequent Westminster Improvement Acts, charged the Commissioners with the carrying out of street constructions and other works and improvements in the City of Westminster area.

3. In the course of their work the Commissioners incurred substantial liabilities, including judgment debts. By 1891 these exceeded £2 million. The Commissioners’ assets, by contrast, amounted to £26,200. It was accordingly considered expedient, that the affairs of the Commissioners should be wound up with their assets being sold for distribution to their creditors. The 1891 Act was passed to achieve these objectives.

4. The 1891 Act contains the following provisions: (a) short title (section 1) (b) interpretation (section 2) (c) by 30 August 1891, the Commissioners were to pay all cash at their disposal into the Companies Liquidation Account at the Bank of England (section 3) (d) the Commissioners to apply to the High Court for the winding-up of their affairs (section 4).

116 8 & 9 Vict. c.clxxviii, s 3.

369 5. The Commissioners duly petitioned the High Court for a winding-up order on 24 October 1891, the order being made on 7 November 1891.117 Accordingly the 1891 Act is now long spent and may be safely repealed.

Extent 6. The 1891 Act applied only in the City of Westminster.

Consultation 7. HM Treasury and Westminster City Council have been consulted about this repeal proposal.

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117 The London Gazette, October 30 1891 and December 4 1891.

370 Reference Extent of repeal or revocation ______

City of London (Central Criminal Court House) The whole Act. Act 1904 (4 Edw.7 c.xciii)

City of London (Central Criminal Court) The whole Act. Act 1951 (14 & 15 Geo.6 c.x)

City of London (Central Criminal Court) The whole Act. Act 1953 (1 & 2 Eliz.2 c.vi)

______

Central Criminal Court

1. This note proposes the repeal of three Acts passed to raise money to build or repair the Central Criminal Court in London.

2. The Central Criminal Court (known as “the Old Bailey” after the street in which it is situated) stands on the site of the old Newgate Prison, in the western part of the City of London. Originally built in 1673, the court has been rebuilt several times upon the same site. The current premises were built in 1907. The Old Bailey is England’s most famous Crown Court and it hears criminal cases remitted to it from all over England and Wales. It sustained extensive damage during the Second World War.

City of London (Central Criminal Court House) Act 1904 3. This 1904 Act records in its preamble that the premises housing the Central Criminal Court were to be pulled down and new premises built for the same purpose. The preamble also records that this rebuilding would be carried out by the City of London with the cost being met by the City borrowing upon the credit of the consolidated rate. Section 3 authorised this borrowing on the basis that the sum borrowed did not exceed £350,000 and that the debt would be discharged within 60 years.

4. The Old Bailey was duly rebuilt and was re-opened in 1907. The debt incurred by the City of London was discharged within the 60 year period118 with the result that the 1904 Act is now unnecessary.

118 The exact date of the final repayment of the debt is not certain. However, City records indicate that repayment was made in full in or before 1967.

371 City of London (Central Criminal Court) Acts 1951 and 1953 5. These 1951 and 1953 Acts were passed as a consequence of the damage sustained by the Old Bailey during the Second World War. The north-east corner of the premises was demolished by enemy action.

6. The cost of repairing the Old Bailey was met partly by the War Damage Commission and partly by the City of London. Section 3 of the 1951 Act authorised the City of London to contribute, out of the general rate of the City, a sum not exceeding £250,000 towards the cost of reconstruction. This sum, however, proved to be insufficient. Increases in the costs of labour and materials meant that the reconstruction costs exceeded the original estimates. Accordingly the 1953 Act was passed to increase the City of London’s contribution to £325,000. Section 3 of the 1953 Act authorised this increase.

7. The contribution towards the restoration work authorised by the 1951 and 1953 Acts was duly made and the necessary works were completed by the mid 1950s. Both Acts are, accordingly, now spent and may be repealed on that basis.

Extent 8. The provisions proposed for repeal applied only in the City of London.

Consultation 9. The City of London Corporation, the Department for Constitutional Affairs and HM Court Service have been consulted about these repeal proposals.

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372 Reference Extent of repeal or revocation ______

London Regional Transport (Amendment) The whole Act. Act 1985 (c.10)

London Regional Transport Act 1996 (c.21) The whole Act. ______

1. The repeals identified in this note are consequential upon the dissolution, in 2003, of London Regional Transport (“LRT”) and the repeal (also in 2003) of the London Regional Transport Act 1984 (“the 1984 Act”).

London Regional Transport (Amendment) Act 1985

2. The sole purpose of the London Regional Transport (Amendment) Act 1985 (“the 1985 Act”) was to authorise the amount of grant payable by the Greater London Council (“the GLC”) to LRT119 for the financial year ending on 31 March 1985.

3. The 1984 Act transferred responsibility for LRT from the GLC to the Secretary of State on 29 June 1984.120 The GLC had already collected the necessary funds to pay grants to LRT for the financial year ending on 31 March 1985 but the transfer of responsibility occurred part way through that year. To remedy this, section 49 of the 1984 Act empowered the Secretary of State to direct the GLC to continue paying grants to LRT until 31 March 1985.

4. The need for the 1985 Act arose from a successful challenge to the exercise by the Secretary of State of his powers under section 49.121 Section 1 of the 1985 Act amended section 49 so as to impose a duty on the GLC to pay a fixed sum by way of grant to LRT no later than 29 March 1985.122 Section 2 provided the short title.

119 The Greater London Council and LRT no longer exist. The Greater London Council was abolished from 1 April 1986 by the Local Government Act 1985, s 1. LRT was dissolved on 16 July 2003 (London Regional Transport (Dissolution) Order 2003, SI 2003/1913). The dissolution of LRT and the transfer of its functions to Transport for London were provided for by the Greater London Authority Act 1999, ss 297 to 302. 120 The London Regional Transport (Appointed Day) Order 1984, SI 1984/877. 121 R v Secretary of State for Transport, ex p GLC [1986] QB 556. The GLC applied for judicial review of a direction made by the Secretary of State for Transport under s 49 of the 1984 Act. The Secretary of State was found to have acted ‘unlawfully, irrationally and procedurally improperly’ in issuing the direction without carrying out appropriate consultation. The direction was quashed by an order of certiorari. 122 The sum was £258,179,588. The amendment substituted a new s 49(1) for s 49(1) to (4) as enacted.

373 5. The payment to LRT of the grant, in accordance with section 49 as amended by the 1985 Act, meant that the 1985 Act thereupon became spent.

6. Moreover, the whole of the 1984 Act (including section 49) was repealed by the Greater London Authority Act 1999 on 15 July 2003.123 This had the dual effect of repealing the text amended by the 1985 Act and of making the 1985 Act unnecessary as well as spent. Accordingly, the 1985 Act is now ripe for repeal on both grounds.

London Regional Transport Act 1996 7. According to its long title, the principal purpose of the London Regional Transport Act 1996 (“the 1996 Act”) was to extend, and facilitate the exercise of, the powers of the LRT to enter into and carry out agreements. This purpose was achieved primarily by amendments to the 1984 Act. However, the repeal of that Act, and the dissolution of LRT in 2003, has meant that the 1996 Act is now unnecessary.124

8. The following provisions of the 1996 Act amended the 1984 Act, and accordingly became unnecessary when the 1984 Act was repealed- ♦ sections 1 to 3 ♦ section 4(1), 4(2)(b), 4(3) and 4(4).

9. Section 4(2) of the 1996 Act made the following amendments to legislation other than the 1984 Act- ♦ section 4(2)(a) amended section 11(3)(bb) of the Competition Act 1980. However, this amendment became unnecessary when it was superseded by a substituted amendment made by the Transport for London (Consequential Provisions) Order 2003125 ♦ section 4(2)(c) amended section 36 of the Transport Act 1985. However, this amendment became unnecessary when section 36 was repealed by the Regulation of Bus Services in Greater London (Transitional Provisions) Order 2000126

123 The 1999 Act, s 423, Sch 34; Greater London Authority Act 1999 (Commencement No 11) Order 2003, SI 2003/1920. 124 The 1984 Act was repealed on 15 July 2003 by the Greater London Authority Act 1999, s 423, Sch 34; SI 2003/1920. LTR was dissolved on 16 July 2003 by the London Regional Transport (Dissolution) Order 2003, SI 2003/1913. 125 SI 2003/1615, art 2, Sch 1, Pt 1, para 6. 126 SI 2000/1462, art 3(1)(b).

374 ♦ section 4(2)(d) amended section 3(1)(b) of the London Regional Transport (Penalty Fares) Act 1992.127 Section 3(1)(b) applied the 1992 Act to “any other person in pursuance of an agreement with [LRT] by virtue of section 3(2) of the 1984 Act”. The effect of the amendment made by section 4(2)(d) was to insert a reference to section 3(2) or 3(2A)(a) of the 1984 Act after the reference to section 3(2). Since, however, the whole of the 1984 Act has been repealed, this amendment is now unnecessary.

10. The only other provisions in the 1996 Act are sections 5 (financial) and 6 (short title, commencement and extent). These are ancillary to sections 1 to 4 and will fall with them.

11. Accordingly the 1996 Act is now unnecessary and may be repealed on that basis.

Extent 12. The provisions proposed for repeal applied only in the London area.

Consultation 13. HM Treasury, the Department for Transport, the Greater London Authority and Transport for London have been consulted about these repeal proposals.

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127 1992 c.xvi.

375 PART 6

POLICE

______

Reference Extent of repeal or revocation ______

2 & 3 Vict. c.xciv (1839) Section 40. (City of London Police Act) ______

2 & 3 Vict. c.xciv (1839) (City of London Police Act)

1. According to its long title, the purpose of the City of London Police Act 1839 (“the 1839 Act”) was to regulate the police in the City of London. In reality the 1839 Act established a professional force, modelled on the Metropolitan Police, to replace the existing system of policing in the City.

2. Section 40 of the 1839 Act provided- “… That it shall be lawful for any Householder within the City of London and the Liberties thereof, personally or by his Servant, or by any Police Constable, to require any Street Musician to depart from the Neighbourhood of the House of such Householder on account of the Illness of any Inmate of such House, or for other reasonable Cause; and every Person who shall sound or play upon any Musical Instrument in any Thoroughfare near any House, after being so required to depart, shall be liable to a penalty not more than Forty Shillings.".

3. This provision was directed at abating the contemporary Victorian annoyance of street organs and brass bands. It mirrors a near identical provision in the Metropolitan Police Act 1839 in relation to street musicians within the Metropolitan Police District.1 This latter provision was repealed in 1864 by the Metropolitan Police Act of that year, which re-enacted the provision with amendments2. This re-enactment was itself repealed in 1989 as being

1 Metropolitan Police Act 1839 (2 & 3 Vict. c.47), s.57. 2 Metropolitan Police Act 1864, ss.1, 2.

376 Last printed 01/02/08 18:12 unnecessary3. Section 40, however, has never been revised or repealed, with the result that the provision still remains in force in the City of London.

4. Section 40 has long ceased to be of practical utility. The regulation of street music nowadays falls to local authorities under the terms of the Environmental Protection Act 1990 (“the 1990 Act”). Part 3 of the 1990 Act, as amended by the Noise and Statutory Nuisance Act 1993, contains several provisions that are relevant in the present context.

5. Section 79(1)(ga) of the 1990 Act defines “noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street …” as a statutory nuisance. ‘Equipment’ is defined as including a musical instrument4. Every local authority (including the Common Council of the City of London5) has a duty, in any case where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint6. A local authority, if satisfied that a statutory nuisance exists, must serve an abatement notice requiring, for example, the abatement or restriction of the nuisance7. A person failing without reasonable excuse to comply with an abatement notice is liable on summary conviction to a fine not exceeding level 5 on the standard scale8. It is also open to individuals to complain to a magistrates’ court that they are aggrieved by the existence of a statutory nuisance9.

6. Accordingly the modern law provides sufficient remedies for householders in the City of London suffering unacceptable noise from street musicians. On that basis, section 40 has been superseded and its repeal is recommended.

3 Statute Law (Repeals) Act 1989, s.1(1), Sch.1, Pt.4. 4 The 1990 Act, s.79(7). This definition of ‘equipment’ was inserted by Noise and Statutory Nuisance Act 1993, s.2(1), (4)(a). 5 The 1990 Act, s.79(7) (definition of “local authority”). 6 The 1990 Act, s.79(1). 7 The 1990 Act, s.80(1). 8 The 1990 Act, s.80(4), (5).

377 Last printed 01/02/08 18:12 Extent 7. The 1839 Act extends only to the City of London.

Consultation 8. The Home Office, the Corporation of London and the City of London Police have been consulted about this repeal proposal.

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9 The 1990 Act, s.82(1). The magistrates’ court has power to order the abatement of the nuisance: s.82(2).

378 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

Oxford Police Act 1868 The whole Act. (31 & 32 Vict. c.lix) ______

Oxford Police Act 1868

1. According to its long title, the Oxford Police Act 1868 (“the 1868 Act”) was passed “for the Establishment of a united Constabulary Force in and for the University and City of Oxford”.

2. Before 1868 there were two police forces operating in the city of Oxford. One was the University police force who, operating under the direction of the proctors, policed the city by night. The other was the municipal police force, formed in 1836, who policed from 4am until 9pm.

3. This division of policing encouraged inefficient practices, whilst the cost of night policing imposed an increasing and unwelcome financial burden on the University. The 1868 Act improved efficiency and cut costs by uniting the two forces. Policing powers were vested in a newly constituted police committee which comprised both University and city corporation representation. The 1868 Act provided for the powers of the police committee and for its funding.

4. Section 25 of the 1868 Act provided that it should cease to have effect after 1 January 1882 unless Parliament had in the meantime provided otherwise. In the event, Parliament did not provide otherwise. Instead the 1868 Act was superseded by the Oxford Police Act 1881 (“the 1881 Act”)10 which provided that, as from 31 December 1881, the united police force should be continued and maintained as hitherto but with a new police committee given new powers. The

10 44 & 45 Vict. c.xxxix.

379 Last printed 01/02/08 18:12 city corporation’s representation on the committee was increased, as was its financial contribution.

5. The dual control approach was ended in 1889 when the city corporation was given full control over policing in Oxford. An order was made in that year11 which repealed substantially the whole of the 1881 Act12 and extended the provisions of the Municipal Corporations Act 1882, as they related to police in boroughs and county boroughs, to the city of Oxford. In 1968 the Oxford city police force was amalgamated with other police forces13 to form the Thames Valley police force.

6. Although the 1868 Act expired on 1 January 1882, it has remained on the statute book in the absence of an express repeal. Such a repeal is now proposed.

Extent 7. The 1868 Act extended only to the city of Oxford.

Consultation 8. The Home Office, the University of Oxford, Oxford City Council and the Thames Valley Police have been consulted about this repeal proposal.

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11 See Local Government Board’s Provisional Order Confirmation Act 1889 (52 & 53 Vict. c.xv), City of Oxford Order, art.28(1). 12 The remainder of the 1881 Act was repealed by the Oxfordshire Act 1985 (c.xxxiv), s.49(2), Sch.3, Pt.1. 13 Reading, Berkshire, Buckinghamshire and Oxfordshire. See Thames Valley Police (Amalgamation) Order 1968, SI 1968/496.

380 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

West Riding Police Superannuation The whole Act. Act 1886 (49 & 50 Vict. c.v)

______

West Riding Police Superannuation Act 1886

1. According to its long title, the West Riding Police Superannuation Act 1886 (“the 1886 Act”) was passed “to make further provisions with respect to the Superannuation Fund for the police of the west riding of the county of York”.

2. The origins of the 1886 Act lie in the County Police Act 1839 (“the 1839 Act”)14 which provided for the establishment of county and district constables by the authority of justices of the peace15. The 1839 Act was amended by the County Police Act 1840 (“the 1840 Act”)16 which, in section 10, authorised the establishment in each county of a superannuation fund to provide pensions for the constables appointed for that county pursuant to the 1839 Act. Deductions made from each constable’s wages were paid into the fund, the income from which would provide for their pensions.

3. The 1886 Act was necessary because the superannuation fund established for the police of the west riding of the county of York under the 1840 Act could no longer provide sufficient income to discharge the pensions and other payments charged on it. Accordingly the 1886 Act authorised the justices of the peace for the west riding area to direct that the fees received by police constables in that area for the service of summonses, the execution of warrants and for the performance of other occasional duties by them should be paid into their superannuation fund17. Moreover it was provided that any continuing

14 2 & 3 Vict. c.93. 15 The 1839 Act permitted county police forces to be established on a voluntary basis (in counties outside the Metropolitan Police District). The establishment of county police forces became obligatory under the County and Borough Police Act 1856. 16 3 & 4 Vict. c.88. 17 The 1886 Act, s.3.

381 Last printed 01/02/08 18:12 deficiency in the fund to meet the claims made on it should be met out of the local police rate18.

4. The system of local justices appointing and overseeing the pensions of police constables has long since vanished. Both the 1839 and the 1840 Acts were repealed by the Police Act 196419, which also provided that any enactment or rule of law whereby constables were authorised or required to take a fee for any act done in the course of their duty as such should cease to have effect20. Today police pensions are dealt with on a national basis under the Police Pensions Act 1976 and the regulations made by the Secretary of State under section 1 of that Act. As a result, the 1886 Act is now obsolete.

Extent 5. The 1886 Act extended to the West Riding of Yorkshire only.

Consultation 6. The Home Office, the Office of the Deputy Prime Minister, the West Yorkshire Police Authority and the Police Federation for England and Wales have been consulted about this repeal proposal.

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18 The 1886 Act, s.4. 19 Section 64(3), Sch.10, Pt.1. 20 The 1964 Act, s.55.

382 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1887 (50 & 51 Vict. c.xxxi)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1888 (51 & 52 Vict. c.lvi)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1889 (52 & 53 Vict. c.xlv)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1890 (53 & 54 Vict. c.lxxvii)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1891 (54 & 55 Vict. c.xxiv)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1892 (55 & 56 Vict. c.ccviii)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1893 (56 & 57 Vict. c.cxlvi)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1894 (57 & 58 Vict. c.xlii)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1895 (58 & 59 Vict. c.lxv)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1896 (59 & 60 Vict. c.lxxxi)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1897 (60 & 61 Vict. c.iii)

383 Last printed 01/02/08 18:12 Metropolitan Police Provisional Order The whole Act. Confirmation Act 1898 (61 & 62 Vict. c.lxxvi)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1899 (62 & 63 Vict. c.xxvii)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1900 (63 & 64 Vict. c.xxi)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1901 (1 Edw.7 c.clvi)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1902 (2 Edw.7 c.lxv)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1903 (3 Edw.7 c.cxliv)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1904 (4 Edw.7 c.lxi)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1905 (5 Edw.7 c.lxiv)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1906 (6 Edw.7 c.xxiii)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1907 (7 Edw.7 c.xlviii)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1908 (8 Edw.7 c.xxxi)

384 Last printed 01/02/08 18:12 Metropolitan Police Provisional Order The whole Act. Confirmation Act 1910 (10 Edw.7 & 1 Geo.5 c.lxvii)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1911 (1 & 2 Geo.5 c.cxxxvii)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1912 (2 & 3 Geo.5 c.xxix)

Metropolitan Police Provisional Order The whole Act. Confirmation Act 1920 (10 & 11 Geo.5 c.xliv)

______

Metropolitan Police Provisional Confirmation Acts

1. This note proposes the repeal of a number of Acts that were passed in the late 19th and early 20th centuries to facilitate the purchase of land to provide offices, stations and buildings for the purposes of the metropolitan police force and the metropolitan police courts.

2. Each Act was necessary to confirm a provisional order made by the Secretary of State under the Metropolitan Police Act 1886 (“the 1886 Act”). The 1886 Act extended the powers of the receiver for the metropolitan police district (“the Receiver”) to buy land for the construction of offices, stations and buildings for the metropolitan police force.21 Section 4 of the 1886 Act prescribed a procedure whereby the compulsory purchase powers under the Land Clauses Consolidation Act 1845 could be invoked by the Receiver to acquire land.22

21 The powers given to the Receiver under the 1886 Act with respect to land and buildings required for the purposes of the metropolitan police force were extended with respect to land and buildings required for the purposes of the metropolitan police courts: Metropolitan Police Courts Act 1897, s.4. Some of the Acts proposed for repeal in this note were made pursuant to both the 1886 Act and the 1897 Act – for example the Metropolitan Police Provisional Order Confirmation Act 1898. 22 Section 5 of the 1886 Act imposed restrictions on the number of houses occupied by “persons belonging to the labouring classes” that could be purchased by the Receiver when exercising his powers under an order.

385 Last printed 01/02/08 18:12 3. Before these powers under section 4 could take effect, the Receiver was required to take steps to publicise the proposed purchase and petition the Secretary of State for an order authorising the purchase: subs.(2),(3). Such an order could not take effect, however, unless it was then confirmed by Act of Parliament: subs.(6). If an Act were passed confirming the order, the order (including any modifications made by Parliament) would then take effect: subs.(7). The Receiver then had a maximum of 3 years from the passing of the Act to purchase the land pursuant to the order: subs.(10).

4. The Acts are broadly similar in format. The Schedule to each contains the relevant provisional order and details of the land to be purchased and the names of the persons having an interest in the land.

5. Because none of the Acts contained any provisions of a continuing nature, each Act became spent once the relevant land purchase had been completed or, at the latest, once 3 years had elapsed from the passing of the Act.23 Each Act is accordingly proposed for repeal on the basis that it is now spent.

6. The Acts proposed for repeal are described in the following paragraphs.

Metropolitan Police Provisional Order Confirmation Act 1887 7. The provisional order confirmed by this Act related to the purchase of- (a) land by Francis Road and Morley Road in Leyton, Essex; and (b) land fronting the high road near Kenley railway station in Coulsdon, Surrey.

23 By virtue of the 1886 Act, s.4(10).

386 Last printed 01/02/08 18:12 Metropolitan Police Provisional Order Confirmation Act 1888 8. The provisional order confirmed by this Act related to the purchase of- (a) land by Rodney Road, Elsted Street and Flint Street in the parish of St. Mary, Newington in Surrey (b) land near Mansfield Place in the parish of St Pancras in the county of Middlesex (c) land by Arbour Street and Charles Street in the parish of St Dunstan, Stepney in the county of Middlesex (d) land by Ladbroke Road and Ladbroke Terrace Mews in Kensington (e) land in Elstree “by the road leading from Barnet to Watford”.

Metropolitan Police Provisional Order Confirmation Act 1889 9. The provisional order confirmed by this Act related to the purchase of- (a) land in Peckham High Street (b) land in Welbeck Street, St Marylebone (c) land at 254 and 255 Wapping High Street.

Metropolitan Police Provisional Order Confirmation Act 1890 10. The provisional order confirmed by this Act related to the purchase of- (a) land in Gerald Road in the parish of St George, Hanover Square (b) land in the Fulham Road near Grove Avenue.

Metropolitan Police Provisional Order Confirmation Act 1891 11. The provisional order confirmed by this Act related to the purchase of- (a) land in Judd Street in St Pancras (b) land by York Mews in St Pancras (c) land at 422 Mare Street in Hackney (d) land at 20 Great Marlborough Street in Westminster (e) land in High Street, St Mary Cray, Kent.

387 Last printed 01/02/08 18:12 Metropolitan Police Provisional Order Confirmation Act 1892 12. The provisional order confirmed by this Act related to the purchase of- (a) land by New Street and Lower William Street in the parish of St Marylebone (b) land by Yeoman’s Row, Walton Street and Michael’s Grove in Kensington (c) land by Susannah Street and East India Dock Road in Poplar.

Metropolitan Police Provisional Order Confirmation Act 1893 13. The provisional order confirmed by this Act related to the purchase of land by Clark’s Mews, Clark’s Buildings and Nos. 1-4 High Street, Bloomsbury.

Metropolitan Police Provisional Order Confirmation Act 1894 14. The provisional order confirmed by this Act related to the purchase of- (a) land by Little Albany Street and Clarence Gardens in St Pancras (b) land at 106 Albany Street in St Pancras (c) land at 100 and 102 Albany Street in St Pancras (d) land by Church Street and Wilby Road in Camberwell.

Metropolitan Police Provisional Order Confirmation Act 1895 15. The provisional order confirmed by this Act related to the purchase of- (a) land at 16 Whitfield Street in St Pancras (b) land at 20,22 and 24 Whitfield Street in St Pancras (c) land at 60 and 61 Tottenham Court Road in St Pancras (d) land at 55-57 Tottenham Court Road and Nos. 1-3 Kirkman’s Place in St Pancras (e) land near Queen’s Road and South Park Road in Wimbledon.

388 Last printed 01/02/08 18:12 Metropolitan Police Provisional Order Confirmation Act 1896 16. The provisional order confirmed by this Act related to the purchase of- (a) land at Allen Street, Vincent Square and Rochester Row in Westminster (b) land at 75 and 77 Rochester Row in Westminster (c) land at 10, 12 and 14 Susannah Street in Poplar.

Metropolitan Police Provisional Order Confirmation Act 1897 17. The provisional order confirmed by this Act related to the purchase of- (a) 10 Vine Street in Westminster (b) land at Quadrant Regent Street in Westminster (c) 7 and 8 Swallow Street in Westminster.

Metropolitan Police Provisional Order Confirmation Act 1898 18. The provisional order confirmed by this Act related to the purchase of land to- (a) improve the existing police court in- (1) Renfrew Road/Lower Kennington Lane in Lambeth (2) Borough High Street/Montague Street in Southwark (3) Lavender Hill/Kathleen Road in Battersea (4) Vernon Street/West Kensington in Fulham (5) Worship Street near Old Street

(b) improve the existing police court and station in Blackheath Road in Greenwich

(d) improve the existing police station at (1) High Street, Barnet (2) Howson Road, Brockley in Lewisham

389 Last printed 01/02/08 18:12 (3) Smedley Road in Clapham (4) Crystal Palace Road in East Dulwich (5) Rosslyn Hill in Hampstead (6) 88 Craven Park Road in Harlesden/Willesden (7) High Street, Ilford (8) Manchester Road, Isle of Dogs (9) Kennington Lane in Lambeth (10) London Road, Kingston (11) Beckenham Road, Penge (12) Barking Road, Plaistow (13) Upper Richmond Road, Putney (14) High Street, South Norwood (15) London Road, Twickenham (16) Gipsy Hill, Upper Norwood (17) High Road, Woodford.

Metropolitan Police Provisional Order Confirmation Act 1899 19. The provisional order confirmed by this Act related to the purchase of- (a) 2-5 Molyneux Street, Bryanston Square in St Marylebone (b) land in Lee Road (near Lewisham) (c) land by Boss Street, Queen Elizabeth Street and Tooley Street (d) land at Bow Road, Landseer Road and Addington Road in Stratford (e) land at Lower Clapton Road in Hackney.

Metropolitan Police Provisional Order Confirmation Act 1900 20. The provisional order confirmed by this Act related to the purchase of- (a) land at 111 Bow Road in St Mary Stratford Bow (b) land by Bridge Road and Walton Road in East Molesey, Surrey (c) 80, 82 and 84 Kings Cross Road and Nos.2, 4, 6, 8 and 10 Great Percy Street in Clerkenwell.

390 Last printed 01/02/08 18:12 Metropolitan Police Provisional Order Confirmation Act 1901 21. The provisional order confirmed by this Act related to the purchase of- (a) land at Crayford Road in Erith, Kent (b) land in the High Street, Banstead in Surrey (c) land by Queen Elizabeth Street and Tooley Street (near London Bridge) (d) land in Old Street in the parish of St Leonard, Shoreditch (e) land in Union Grove in Clapham (f) land in Trafalgar Road and Park Row.

Metropolitan Police Provisional Order Confirmation Act 1902 22. The provisional order confirmed by this Act related to the purchase of land in Old Street in the borough of Shoreditch to erect a police court and a police station.

Metropolitan Police Provisional Order Confirmation Act 1903 23. The provisional order confirmed by this Act related to the purchase of land at 10 and 12 Ladbroke Grove in Kensington.

Metropolitan Police Provisional Order Confirmation Act 1904 24. The provisional order confirmed by this Act related to the purchase of- (a) land at 29, 31, 33, 35, 37 and 39 Canning Road in Highbury (b) land at 343 and 345 High Road, Wood Green (c) land at 193 and 195 Upper Richmond Road, Putney (d) land at 29-34 Upper Market Street, Woolwich.

Metropolitan Police Provisional Order Confirmation Act 1905 25. The provisional order confirmed by this Act related to the purchase of- (a) land in High Street, Erith (b) land in East Street, Barking.

391 Last printed 01/02/08 18:12 Metropolitan Police Provisional Order Confirmation Act 1906 26. The provisional order confirmed by this Act related to the purchase of- (a) land in Amersham Vale and Napier Street, Deptford (b) land in Yeomans Row, Kensington.

Metropolitan Police Provisional Order Confirmation Act 1907 27. The provisional order confirmed by this Act related to the purchase of- (a) land at 321, 323 and 325 Harrow Road, Paddington (b) land at 112, 114 and 116 Bridge Street, Battersea (c) land at 28, 30 and 32 High Street, Barnet.

Metropolitan Police Provisional Order Confirmation Act 1908 28. The provisional order confirmed by this Act related to the purchase of land at 6-10 Devonshire Street in Fulham.

Metropolitan Police Provisional Order Confirmation Act 1910 29. The provisional order confirmed by this Act related to the purchase of- (a) land at 19 Great Marlborough Street and 11/12 Marlborough Mews in Westminster (b) land at 1-6 Baker’s Lane, Ealing.

Metropolitan Police Provisional Order Confirmation Act 1911 30. The provisional order confirmed by this Act related to the purchase of land at 394 and 396 High Road in Tottenham.

Metropolitan Police Provisional Order Confirmation Act 1912 31. The provisional order confirmed by this Act related to the purchase of land at 89 and 91 Askew Road in Shepherds Bush.

392 Last printed 01/02/08 18:12 Metropolitan Police Provisional Order Confirmation Act 1920 32. The provisional order confirmed by this Act related to the purchase of land at 102 High Street, Wapping.

Extent 33. The Acts proposed for repeal in this note extended to the relevant geographical locations within the metropolitan police district in and around London.

Consultation 34. The Home Office, the Metropolitan Police, the Metropolitan Police Authority and the Greater London Authority have been consulted about these repeal proposals.

32-195-47 01 February 2008

393 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

Lincolnshire Police Superannuation The whole Act. Act 1888 (51 & 52 Vict. c.ix) ______

Lincolnshire Police Superannuation Act 1888

1. According to its long title, the purpose of the Lincolnshire Police Superannuation Act 1888 (“the 1888 Act”) was “to make further provisions with respect to the Superannuation Fund for the police of the three divisions of parts of Lindsey, Kesteven and Holland in the county of Lincoln”. A copy of the 1888 Act accompanies this note.

2. Sections 4 and 5 of the 1888 Act have already been repealed24.

3. The origins of section 3 of the 1888 Act lie in the County Police Act 1839 (“the 1839 Act”)25 which provided for the establishment of county and district constables by the authority of justices of the peace26. The 1839 Act was amended by the County Police Act 1840 (“the 1840 Act”)27 which, in section 10, authorised the establishment in each county of a superannuation fund to provide pensions for the constables appointed for that county pursuant to the 1839 Act. Deductions made from each constable’s wages were paid into the fund, the income from which would provide for their pensions.

4. Section 3 of the 1888 Act was necessary because the income of the joint superannuation fund established under the 1840 Act for the Lincolnshire police divisions referred to above had become insufficient to provide for the pensions

24 Police Pensions Act 1948, s.3, Sch.1. 25 2 & 3 Vict. c.93. 26 The 1839 Act permitted county police forces to be established on a voluntary basis (in counties outside the Metropolitan Police District). The establishment of county police forces became obligatory under the County and Borough Police Act 1856. 27 3 & 4 Vict. c.88.

394 Last printed 01/02/08 18:12 and other payments charged on it28. Accordingly section 3 authorised the justices of the peace for these Lincolnshire police divisions to direct that the fees received by police constables for the service of summonses, the execution of warrants and for the performance of other occasional duties by them should be paid into their superannuation fund.

5. The system of local justices overseeing the appointment and pensions of police constables has long since vanished. Both the 1839 and the 1840 Acts were repealed by the Police Act 196429, which also provided that any enactment or rule of law whereby constables were authorised or required to take a fee for any act done in the course of their duty as such should cease to have effect30. Today police pensions are dealt with on a national basis under the Police Pensions Act 1976 and the regulations made by the Secretary of State under section 1 of that Act. As a result, section 3 of the 1888 Act is now obsolete.

6. The only other unrepealed provisions of the 1888 Act are sections 1 (short title), 2 (interpretation of the term ‘the superannuation fund’ as used in section 3) and 6 (provision relating to the costs of getting the 1888 Act onto the statute book). The repeal of section 3 as proposed above will make sections 1, 2 and 6 unnecessary. This will permit the formal repeal of the 1888 Act as a whole.

Extent 7. The 1888 Act extended to parts of Lincolnshire only.

28 References to the joint superannuation fund established for these Lincolnshire police divisions were also made by the Police Act 1859, s.22 and by the Police Superannuation Act 1865, s.8. Neither of these provisions had any relevance to the present repeal proposal. 29 Section 64(3), Sch.10, Pt.1. 30 The 1964 Act, s.55.

395 Last printed 01/02/08 18:12 Consultation 8. The Home Office, the Office of the Deputy Prime Minister, the Lincolnshire Police Authority and the Police Federation for England and Wales have been consulted about this repeal proposal.

32/195/47 01 February 2008

396 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

City of London Police Superannuation The whole Act. Act 1889 (52 & 53 Vict. c.cxxvii)

______

City of London Police Superannuation Act 1889 1. According to its long title, the City of London Police Superannuation Act 1889 (“the 1889 Act”) was an Act “for providing a scale of pensions and gratuities in the police force of the City of London and for other purposes”. Most of the 1889 Act has already been repealed31. The remaining provisions - sections 1, 9, 11, 12 and 15 and the Schedule – are now obsolete. They are set out in the Annex to this note. The present authority for the payment of police pensions - including pensions to police officers in the City of London force – is the Police Pensions Act 1976 and the regulations made by the Secretary of State under section 1 of that Act.32

2. Section 1 is the 1889 Act’s short title.

3. Section 9 enabled any constable to which the 1889 Act applied33, having served not less than fifteen years, who had been dismissed from his employment, to appeal by notice (within fourteen days after such dismissal) to the court of Common Council. The Common Council could confirm or reverse such decision.

31 Sections 2 to 8, 10, 13 and 14 were repealed by the Police Pensions Act 1921, s.35(3), Sch.4. The 1921 Act consolidated various enactments (relating to police pensions) reaching back to 1839. 32 Members of the City of London Police Force fall within the ambit for the Police Pensions Act 1976 by virtue of section 11(3) of that Act which defines ‘police force’ by reference, inter alia, to any police force within the meaning of the Police Act 1996. Section 101(1) of the Police Act 1996 defines ‘police force’ as a force maintained by a police authority, which latter term is defined in section 101(1) as including the Common Council in relation to the City of London police area. 33 By virtue of section 13 (repealed), the 1889 Act applied to all persons joining the City Police Force or connected therewith in any capacity whatsoever after the passing of the 1889 Act (12 August 1889).

397 Last printed 01/02/08 18:12 4. Section 9 has been superseded by the arrangements for appeals against dismissal contained in the Police Act 1996 (“the 1996 Act”) which provides that a member of a police force who is dismissed, required to resign or reduced in rank has the right to appeal to a police appeals tribunal34.

5. Section 11 provided that within two months from the passing of the 1889 Act (12 August 1889) notice should be given to certain persons, including existing members of the City Police Force, enabling such persons to notify the Common Council, if they so wished, to avail themselves of the 1889 Act provisions in substitution for those in earlier statutory schemes. Such notice had to be given on or before 1 January 1890. Limitations were put on the numbers who could be so entitled to the pensions and gratuities in the period to 1 January 1895. These provisions are clearly long since spent.

6. Section 12 provided for the repeal of provisions in earlier statutory schemes subject to a saving provision in respect of existing members etc. who had not notified the Common Council in accordance with section 11. Due to the passage of time since 1889, there will no longer be any persons to whom the savings provision can now apply, with the result that section 12 is spent.

7. Section 15 is a long-spent provision securing that the costs incurred in the passing of the 1889 Act were to be paid for by the Corporation as part of the expenses of the City Police Force.

8. The Schedule to the 1889 Act provided for the calculation of the pensions payable under that Act. The Schedule is now unnecessary because the provision in the 1889 Act to which it related – section 5 – was repealed by the Police Pensions Act 1921 (which consolidated the relevant provisions of the 1889 Act).

34 The 1996 Act, s.85(1). The procedure for such appeals is provided by the Police Appeals Tribunals Rules

398 Last printed 01/02/08 18:12 Conclusion 9. The main purpose of the 1889 Act – providing pensions for persons working in the City of London Police Force – ceased to exist once its pension provisions were consolidated into the Police Pensions Act 1921. Thereafter the 1889 Act was confined to a number of transitional and incidental provisions all of which are now long spent. Accordingly the 1889 Act as a whole may now be formally repealed.

Extent 10. The 1889 Act extends only to the City of London.

Consultation 11. The Home Office, the Corporation of London, the City of London Police and the Police Federation for England and Wales have been consulted about this repeal proposal.

32-195-47 01 February 2008

1999, SI 1999/818 as amended by the Police Appeals Tribunals (Amendment) Rules 2003, SI 2003/2597.

399 Last printed 01/02/08 18:12 ANNEX

Unrepealed provisions of the City of London Police Superannuation Act 1889

1. Short title. This Act may be cited as the City of London Police Superannuation Act 1889 and its provisions shall be substituted for the enactments herein-after repealed.

9. Right of appeal on dismissal after fifteen years service. Where any constable having served not less than fifteen years and to whom this Act applies is dismissed from his employment and feels aggrieved at such dismissal he may by notice in writing within fourteen days after such dismissal appeal to the court of Common Council and such court shall entertain his application and may confirm or reserve the decision appealed against:

Save as aforesaid nothing in this Act contained shall be construed to prevent any constable being dismissed on account of misconduct or of negligence in or unfitness for the discharge of his duties or other reasonable cause and on such dismissal he shall forfeit all right to a pension or gratuity.

11. Notice of Act to be given to members of force and others. Within two months from the passing of this Act notice of its provisions shall be given to all existing members of the City Police Force (including the Commissioner surgeon receiver and officers) and to all clerks or persons employed in or in connexion with that force and all such members clerks or persons as wish to avail themselves of the provisions of this Act in substitution for the provisions contained in the City Police Act 1839 and the City of London Police Act 1874 shall on or before the first day of January one thousand eight hundred and ninety notify their desire by notice in writing to the Common Council and shall thenceforth on their retirement only be entitled to the pensions and gratuities herein provided:

Provided that for the first five years after the first of January one thousand eight hundred and ninety not more than fifteen constables in each year in order of seniority or in such order as shall be determined by the Commissioner by a list to be prepared before the thirty-first day of October one thousand eight hundred and eighty-nine shall be entitled unless incapacitated to retire on a pension for life as by this Act provided.

12. Provisions of existing Acts to remain in force in certain cases. The provisions contained in section 12 of the City Police Act 1839 and in section 3 of the City of London Police Act 1874 shall as regards such existing members clerks or persons of or connected with the City Police Force as shall not notify their desire as in the above section provided be and remain valid and existing but save as aforesaid shall be repealed.

400 Last printed 01/02/08 18:12 15. Costs of Act. The costs charges and expenses preliminary to and of and incidental to the preparation of and the obtaining and passing of this Act shall be paid by the corporation as part of the expenses of the City Police Force.

SCHEDULE

The pension to a constable on retirement shall be according to the following scale (that is to say)-

(A) If he completed less than twenty years approved service an annual sum of one fiftieth of his annual pay at the time of retirement for every completed year of service. (B) If he has completed twenty years but less than twenty-five years approved service an annual sum of one fiftieth of his annual pay at the time of retirement for every completed year of service up to twenty years and two fiftieths for each completed year of service after such twenty years service. (C) If he has completed over twenty-five years approved service an annual sum of one fiftieth of his annual pay at the time of his retirement for every completed year of service up to twenty years and of two fiftieths of such annual pay for each completed year of service from twenty to twenty-five years and of one fiftieth of such annual pay for each completed year’s service after such twenty-five years service but such annual sum shall in no case exceed two thirds of his annual pay at the time of retirement.

401 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

Police and Firemen (War Service) The whole Act. Act 1939 (2 & 3 Geo.6 c.103)

Police and Firemen (War Service) The whole Act. Act 1944 (7 & 8 Geo.6 c.22) ______

Police and Firemen (War Service) Act 1939 Police and Firemen (War Service) Act 1944

Background

1. The main purpose of the Police and Firemen (War Service) Act 1939 (“the 1939 Act”) as originally enacted was to supplement the pay and ensure continuity of the pension rights of police officers and firefighters who left to serve in the armed forces during the second world war. The main purpose of the Police and Firemen (War Service) Act 1944 (“the 1944 Act”) was to amend the provisions of the 1939 Act.

2. In broad terms, the main effect of the 1939 and 1944 Acts was to treat the time spent by police officers and firefighters when serving in the armed forces as being reckonable for the purposes of their respective police pensions and firefighters’ pensions schemes. In other words, the policy was that police officers and firefighters who left their respective areas of work to serve in the armed forces during the second world war should not have their police pensions or firefighters’ pensions reduced because of their time spent away at war. The 1939 and 1944 Acts also provided pension and other benefits to police officers and firefighters and their respective dependants in the event of death or incapacity arising as a result of service in the armed forces.

3. The 1939 and 1944 Acts are now unnecessary because they are no longer needed for the purpose of determining a person’s eligibility for benefit under them or for calculating the quantum of any such benefit. Although many

402 Last printed 01/02/08 18:12 pensions payable to, or in respect of, police officers and firefighters who served in the second world war are likely to remain in payment for some time to come, no new claims invoking the 1939 and 1944 Acts are now possible because the pension rights of any police officer or firefighter who served in the armed forces during the second world war35 will already have been established when they retired at 60 or earlier36. Any such persons would have reached the age of 60 by 1990 at the latest. The repeal of the 1939 and 1944 Acts will not affect any pension or other benefit already in payment by virtue of those Acts37.

4. The historical position in relation to police pensions and firefighters’ pensions requires separate consideration.

Police pensions 5. Before 1948, police pensions in Great Britain were governed mainly by the Police Pensions Act 1921 which consolidated various enactments reaching back to 1839. Since 1948, police pensions have been provided for by regulations made by the Secretary of State. This principle was introduced by the Police Pensions Act 1948 and has been continued by the Police Pensions Act 1976 (“the 1976 Act”) which consolidated the enactments passed between 1948 and 1976. The present authority for the payment of police pensions is therefore the 1976 Act and the regulations made by the Secretary of State under section 1 of that Act.

6. The 1939 and 1944 Acts have largely been repealed already so far as they apply to police pensions. The Police Pensions Act 194838 (“the 1948 Act”)

35 The period of service in H.M Armed Forces is referred to in the 1939 Act as “the period of the present emergency”: (s.1(1)). This period began on 1 September 1939 (1939 Act, s.14) and ended on 31 December 1946 by virtue of the Police and Firemen (End of Emergency) Order 1947, SR&O 1947/152. 36 Police officers and firefighters can generally build up a full pension after 30 years service. Police officers and fiirefighters with 30 years service can normally draw their pension at the age of 50. See: Firemen’s Pension Scheme Order 1992, SI 1992/129, art.2(2), Sch.2, rule A13; Police Pensions Regulations 1987, SI 1987/257, reg.A18 (65 in the case of the most senior ranks of police officers). 37 By virtue of s.16(1) of the Interpretation Act 1978, the repeal of an enactment does not affect the previous operation of the enactment or any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. 38 The 1948 Act, s.3(4), Sch.1, Pt.1.

403 Last printed 01/02/08 18:12 repealed most references to the two Acts when the Police Pensions Regulations 1948 came into force on 5 July 194839. These regulations covered all new awards in respect of retirement or death on or after that date. So far as earlier awards were concerned, section 3(1)(b) of the 1948 Act contained a saving provision in respect of pension awards already granted before that date under section 4(3) of the 1939 Act. So far as future awards were concerned, section 3(2) of the 1948 Act provided (amongst other things) that anyone who before 5 July 1948 ceased to be a member of a police force in order to undertake any service by virtue of which he was a person to whom section 1 of the 1939 Act applied should, in accordance with regulations made under section 1 of the 1948 Act, be treated as if he was still a member of the police force on that date.

7. The 1976 Act, which consolidated the 1948 Act, re-states these provisions. Section 5(2) provides (amongst other things) that anyone who before 5 July 1948 ceased to be a member of a police force in order to undertake any service by virtue of which he was at that date a person to whom section 1 of the 1939 Act applied shall, in accordance with regulations made under section 1, be treated as if he had still been a member of a police force at that date. The 1976 Act also carries forward the saving provision in respect of pensions granted by virtue of section 4(3) of the 1939 Act40. In short the 1939 Act (and, consequently, the 1944 Act) has now been superseded by the 1976 Act so far as police pensions are concerned41.

8. The only surviving provisions in the 1939 and 1944 Acts relevant to police pensions are the following provisions in the 1939 Act-

39 SI 1948/1531. The 1948 Regulations were revoked by the Police Pensions Regulations 1962, SI 1962/2756. 40 The 1976 Act, Sch.1, para.1(1)(a). Although this and section 5(2) appear now to be unnecessary in the sense that the pension rights of any police officer who served in the armed forces during the second world war will have long since been established, it may be helpful to retain the provisions on the statute book in order to illustrate the types of pensionable service covered by the 1976 Act. 41 The principal police pension regulations currently in force are the Police Pensions Regulations 1987, SI 1987/257. In relation to the 1939 Act see regs.A14(e), F4(5), Part I and Sch.A (definition of ‘serviceman’).

404 Last printed 01/02/08 18:12 ♦ section (1) which defines the scope of the Act as originally drafted (when it covered police officers as well as firefighters); ♦ section 1(4) which is a long-spent provision relating to payments to make up the civil remuneration of police officers and firefighters during their service with HM Forces; ♦ section 14 (an interpretation provision) which includes a now unnecessary definition of ‘appropriate authority’ as it relates to a police constable, and an unnecessary definition of ‘constable’.

9. The earlier repeals of the 1939 and 1944 Acts so far as they applied to police pensions means that these surviving provisions are now overdue for repeal themselves.

Firefighters’ pensions 10. Before 1948, firefighters’ pensions in Great Britain were governed by the Fire Brigade Pensions Act 1925. This Act was repealed by the Fire Services Act 1947 (“the 1947 Act”)42, section 26 of which enabled the Secretary of State to make a scheme to be known as ‘the Firemen’s Pension Scheme’. The first such scheme (“the 1948 Scheme”) was brought into effect by the Firemen’s Pension Scheme Order 1948 which came into force on 1 April 194843. It effectively superseded the pensions provisions in the 1939 and 1944 Acts in relation to anyone serving as a firefighter on that date who thereafter retired from, or died during, employment as a firefighter44. The 1948 Order did not affect any claims made pursuant to the 1939 and 1944 Acts before 1 April 1948. Any such claim would have been determined either before that date or within a short time thereafter. The 1948 Scheme, as amended, was followed by six further schemes, the penultimate of which was the Firemen’s Pension Scheme 1973. The 1973 scheme was consolidated in the Firemen’s Pension Scheme 1992 (“the 1992 Scheme”). Under the terms of the 1973 Scheme, the earlier schemes continued

42 The 1947 Act, s.39(4), Sch.6. 43 SI 1948/604. So far as the scheme applied to Scotland, it came into force on 16 May 1948. 44 The 1947 Act, s.27(1).

405 Last printed 01/02/08 18:12 to apply in respect of deaths and retirements which took place before 1 April 1972. The savings associated with the old schemes were consolidated or revoked by the 1992 Scheme, which also finally revoked the 1948 Scheme. This scheme, which has been in force since 1 March 1992, is set out in the Firemen’s Pension Scheme Order 199245.

11. Although the 1947 Act has now been repealed by the Fire and Rescue Services Act 200446, section 36(1) of that Act empowers the Secretary of State by order to provide for the Firemen’s Pension Scheme established under section 26 of the 1947 Act to continue in force despite the repeal of the 1947 Act. As a result of orders made under section 3647, certain provisions of the 1947 Act, including section 26(1) to (5), continue to have effect for the purposes of the 1992 Scheme. The 1992 Scheme has, however, been renamed as the Firefighters Pension Scheme 1992, and the order establishing it has been re- titled the Firefighters’ Pension Scheme Order 199248.

12. Accordingly the present position is that the 1992 Scheme is the current vehicle for determining a person’s eligibility for a pension as a firefighter and related issues including the length of service that counts towards such a pension. The 1948 Scheme, revoked by the order establishing the 1992 Scheme, effectively superseded the 1939 and 1944 Acts in relation to any claim made pursuant to those Acts in respect of deaths or retirements as from 1 April 1948. All claims pursuant to those Acts made before April 1948 will have long since been determined. In the unlikely event of there being any future claims, the 1992 Scheme contains provisions analogous to those under the 1939 and 1944 Acts ensuring the continuity of pension rights of firefighters who have undertaken relevant service in the armed forces49.

45 SI 1992/129. 46 The 2004 Act, ss.52, 54, Sch.2. 47 Firefighters’ Pension Scheme (England and Scotland) Order 2004, SI 2004/2306; Fire and Rescue Services Act 2004 (Firefighters’ Pension Scheme) (Wales) Order 2004, SI 2004/2918. 48 Firefighters’ Pension Scheme (England and Scotland) Order 2004, SI 2004/2306, art.4.

406 Last printed 01/02/08 18:12 Conclusion 13. Although pensions payable to, or in respect of, police officers and firefighters who served in the second world war are likely to remain in payment for many years to come, the 1939 and 1944 Acts are no longer necessary to ensure the continuance of these payments. The provisions of the two Acts, now relating almost exclusively to firefighters’ pensions, are concerned with issues of eligibility for such pensions and the calculation of the amount of the pensions. These issues became irrelevant for any police officer or firefighter once his pension award was determined and became payable. All such awards would have been made by 1990 at the latest. The 1939 and 1944 Acts thereupon became spent and their repeal is proposed on that basis. The Annex to this note outlines the unrepealed provisions of the two Acts50.

14. The repeal of the 1939 and 1944 Acts will not affect any pension rights or other benefits already accrued under those Acts51.

Extent 15. The 1939 and 1944 Acts extend throughout Great Britain.

Consultation 16. HM Treasury, the Home Office, the Office of the Deputy Prime Minister, the Metropolitan Police, the Metropolitan Police Authority, the Association of Police Authorities, the Greater London Authority, the London Fire and Emergency Planning Authority, the Police Negotiating Board for the United Kingdom, the Local Government Association, the Welsh Local Government Association, the Police Federation for England and Wales, the Police Federation

49 The Firemen’s Pension Scheme Order 1992, SI 1992/129, art.2(2), Sch.2, Part I (Servicemen). 50 No repeals are proposed in respect of references to the 1939 Act contained in a number of subsequent enactments and statutory instruments. In nearly every case they are included in the context of defining ‘war service’ in a wide range of schemes to compensate employees, mainly in the public sector, for the loss of employment rights or benefits following institutional re-organisation. These references may continue to be helpful to illustrate the types of service that were reckonable for the purposes of the particular scheme. The repeal of the 1939 Act will not in any way affect these references.

407 Last printed 01/02/08 18:12 for Scotland, the Fire Brigades Union and the relevant authorities in Wales and Scotland have been consulted about these repeal proposals.

01 February 2008 32/195/47

51 By virtue of s.16(1) of the Interpretation Act 1978, the repeal of an enactment does not affect the previous operation of the enactment or any right, privilege, obligation or liability acquired, accrued or incurred under that enactment.

408 Last printed 01/02/08 18:12 ANNEX

Surviving provisions of the Police and Firemen (War Service) Acts 1939 and 1944

1939 Act Section 1 Just subsections (1) and (4) survive. Subsection (1) is merely descriptive of the persons to whom section 1 applies.

Subsection (4) is a spent provision explaining which funds were responsible for making up the civil remuneration of a firefighter during his service with HM Forces.

Section 2 A spent provision directing that a person’s war service should be reckoned for superannuation purposes.

Section 3 Already repealed.

Section 4 This dealt with pension and other grants in the case of death or incapacity. There are several different cases.

Subsection (1): already repealed. Subsection (2) provided for a pension grant to a widow (or the grant of payments to children or other relatives) in a case where a firefighter died on war service or in consequence of injury etc which prevented his resuming service as a firefighter. Provision now spent because all decisions about such grants would have been made within, at latest, a few years after the end of the 1939/45 war.

Subsection (3) covered the case where a firefighter did not die but was prevented by injury etc from resuming service as

409 Last printed 01/02/08 18:12 a firefighter. Spent because any award would have been decided within, at latest, a few years after the end of the 1939/45 war.

Subsection (4) covered the case where a firefighter resumed service but thereafter died or retired in consequence of war injuries. Almost certainly spent given the lapse of time since the end of the 1939/45 war. Any future claim, however, would be covered by the Firemen’s Pension Scheme 1992.

Subsections (5) and (7) dealt with the machinery for calculating the grant and are now unnecessary because all grants decisions will by now have been made.

Section 5 This calculated the pensionable pay of a firefighter for the purposes of a grant. This is now unnecessary because all pension awards will have been settled many years ago when the pension first became payable.

Section 6 Already repealed.

Section 7 Subsection (1) exempted from the preceding provisions certain firefighters who had exercised an option to be treated as local government staff (and therefore to be covered by other legislation)

Subsection (2) operated to take out of the 1939 Act certain firefighters for whom special schemes were already in existence under local legislation in London, Birmingham, etc. The provision required the schemes to be amended so as to conform with the provisions of the 1939 Act.

410 Last printed 01/02/08 18:12 Both subsections are now unnecessary because no new pension grants can be made pursuant to the 1939 Act.

Sections 8 and 9 Repealed already.

Section 10 Subsection (1) is repealed already. Subsections (2) and (3) are spent transitional provisions covering the period after a firefighter had given notice to retire and until he was allowed to retire (or died before being allowed to retire).

Section 11 This provided that war injuries during service as a firefighter should be deemed to be non-accidental for the purpose of pension schemes, its effect being to ensure that the pension awarded was at the highest rate. This provision is now unnecessary because all decisions about pensions in relation to the 1939 Act will have been made many years ago when the pension first became payable.

Section 12 Already repealed.

Section 13 Subsections (1) and (2) are repealed already. Subsections (3) and (4) are spent provisions bringing within the scope of the 1939 Act persons who had been called out for military service or training before the 1939/45 war.

Section 14 This is the interpretation provision which has become spent or unnecessary along with the rest of the Act.

Section 15 Already repealed.

411 Last printed 01/02/08 18:12 Section 16 This provides for the short title and extent of the 1939 Act.

1944 Act Section 1 Subsection (1) substituted new section 4 of the 1939 Act (as to which, see above). Subsection (2) validated grants already made which would have been lawful under the 1939 Act as amended by subsection (1). Subsection (3) enabled grants to be made retrospectively. Both provisions are clearly now spent.

Section 2 This is obsolete machinery which related to the procedure before a grant could be made under section 4 of the 1939 Act.

Section 3 This provides a procedure for determining the date of death of persons reported as dead or missing on war service. This is clearly now unnecessary.

Section 4 Subsection (1) is a spent provision extending the time limits for the operation of the 1939 Act for a further year or such longer period as the Secretary of State might direct. The end of the period of emergency was later declared to be 31 December 1946 (SR&O 1947/152). Subsections (2) to (4) are already repealed.

Section 5 This substituted new section 10(2) of the 1939 Act (as to which, see above).

Section 6 Subsections (1) to (3) are already repealed. Subsection (4) is a spent provision requiring local authorities operating schemes outside the scope of the 1939 Act (see

412 Last printed 01/02/08 18:12 section 7(2) of that Act) to amend them to conform with the 1944 Act. Subsection (5), which applied to schemes operating in Scotland, was ancillary to subsection (4).

Section 7 This provides for the short title, citation, interpretation and extent of the 1944 Act.

413 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

Police and Criminal Evidence Act Section 108. 1984 (c.60) Section 110. In section 120(2), the entries relating to section 108(4) and (5), and section 110. In section 120(4), the entries relating to section 83(2), section 108(1) and (6), and section 109. In section 120(5), the entry relating to section 83(2).

______

Police and Criminal Evidence Act 1984

1. The purposes of the Police and Criminal Evidence Act 1984 (“the 1984 Act”) included making further provision in relation to the powers and duties of the police and abolishing the rank of deputy chief constable.

2. Section 108(1) abolished the office of deputy chief constable. This abolition took effect on 1 March 198552 whereupon section 108(1) became spent.

3. Section 108(2) and (3) have already been repealed53.

4. Section 108(4) amended section 5 of the Police (Scotland) Act 1967 and section 108(5) inserted section 5A into that Act. However, since both sections 5 and 5A have now been substituted by fresh provisions54, the amendments made by section 108(4) and (5) are now spent.

52 The date on which section 108(1) came into force, by virtue of Police and Criminal Evidence Act 1984 (Commencement No.1) Order 1984, SI 1984/2002. In fact the office of deputy chief constable has since been restored: see Police Act 1996, s.11(A)(1). 53 Police and Magistrates’ Courts Act 1994, s.93, Sch.9, Pt.1. 54 Criminal Justice (Scotland) Act 2003, s.75(1), (2).

414 Last printed 01/02/08 18:12 5. Section 108(6) amended section 23(2) of the Police (Scotland) Act 196755. However, since that amendment has now been reversed by a subsequent amendment56, section 108(6) is now spent.

6. There being no other remaining subsections, the whole of section 108 may now be formally repealed as being unnecessary.

7. Section 110 repealed section 17(6) of the Police (Scotland) Act 1967 and became spent when the repeal came into force on 1 March 198557.

8. Section 120 provides for the extent of the 1984 Act. The following provisions in section 120 are now unnecessary-

♦ in subsection (2) (provisions extending to Scotland), the entries relating to sections 108(4) and (5) and 110. These entries will become unnecessary consequentially upon the repeal of section 108 proposed above;

♦ in subsection (4) (provisions extending to England and Wales and Scotland), the entries relating to sections 83(2), 108(1) and (6) and 109. The entries relating to sections 83(2) and 109 are unnecessary consequentially upon the repeal of those provisions by the Police Act 199658, whilst the entry relating to section 108(1) and (6) will become unnecessary consequentially upon the repeal of section 108 proposed above;

♦ in subsection (5) (provisions extending throughout the United Kingdom), the entry relating to section 83(2) is unnecessary

55 Section 108(6) also amended s.58(2) of the Police Act 1964. However s.108(6), so far as it relates to England and Wales, has been repealed by Police and Magistrates’ Courts Act 1994, s.93, Sch.9, Pt.1. 56 Police and Magistrates’ Courts Act 1994, s.53(2)(a). 57 By virtue of Police and Criminal Evidence Act 1984 (Commencement No.1) Order 1984, SI 1984/2002. 58 The 1996 Act, s.103(3), Sch.9.

415 Last printed 01/02/08 18:12 consequentially upon the repeal of that provision by the Police Act 199659.

Extent 9. The provisions of the 1984 Act proposed for repeal all extend to Scotland. Additionally the repeal of text in section 120(4) extends also to England and Wales, and the repeal of text in section 120(5) extends also to England, Wales and Northern Ireland.

Consultation 10. The Home Office, the Metropolitan Police, the Metropolitan Police Authority and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

32/195/47 01 February 2008

59 Ibid.

416 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

Police and Magistrates’ Courts Section 33. Act 1994 (c.29) Section 41. ______

Police and Magistrates’ Courts Act 1994

1. The purposes of the Police and Magistrates’ Courts Act 1994 (“the 1994 Act”) included making provision about police areas, police forces and police authorities.

2. Section 33 is a validating financial provision. It provided that any deductions made from grants under section 31 of the Police Act 1964 for any period ended after 31 March 1980 and before 21 July 1994 on account of common service expenditure shall be deemed to have been made in accordance with that section and any order made under it. The passage of time since 1994 will have rendered section 33 unnecessary, and its repeal is proposed on that basis. Such repeal will have no effect on the previous operation of section 3360.

3. Section 41 repealed provisions in section 2 of the Metropolitan Police Act 1856 and became spent when it came into force on 8 August 199461.

Extent 4. The provisions proposed for repeal extend to England and Wales only.

Consultation 5. The Home Office, the Metropolitan Police Authority and the relevant authorities in Wales have been consulted about these repeal proposals. 32/195/47 01 February 2008

60 By virtue of the general savings provision in section 16(1)(b) of the Interpretation Act 1978. 61 Police and Magistrates’ Courts Act 1994 (Commencement No.1 and Transitional Provisions) Order 1994, SI 1994/2025.

417 Last printed 01/02/08 18:12 Reference Extent of repeal or revocation ______

Police (Insurance of Voluntary The whole Act. Assistants) Act 1997 (c.45) ______

Police (Insurance of Voluntary Assistants) Act 1997

1. The purpose of the Police (Insurance of Voluntary Assistants) Act 1997 (“the 1997 Act”) was to provide for the insurance by police authorities and the Receiver for the Metropolitan Police District of persons providing voluntary assistance for police purposes.

2. The only substantive provision of the 1997 Act that has not already been repealed62 is section 1 which amends certain provisions in section 146A of the Local Government Act 1972. In other words the 1997 Act now serves no useful purpose except to keep in force the amendments in section 1. The effect of section 1 may conveniently be preserved by the entry in the attached Schedule of consequential and connected provisions. This will then supersede section 1 and enable the whole of the 1997 Act to be repealed63.

Extent 3. The 1997 Act extends to England and Wales only.

Consultation 4. The Home Office, the Office of the Deputy Prime Minister, the Metropolitan Police, the Metropolitan Police Authority and the relevant authorities in Wales have been consulted about this repeal proposal.

32-195-47 01 February 2008

62 The only other substantive provisions were sections 2 and 3 which were repealed by Greater London Authority Act 1999, ss.325, 423, Sch.27, para.109, Sch.34, Pt.7. 63 Section 4 of the 1997 Act (short title and extent) will fall consequentially once section 1 is superseded.

418 Last printed 01/02/08 18:12 SCHEDULE

CONSEQUENTIAL AND CONNECTED PROVISIONS

Local Government Act 1972 (c.70)

. The repeal by this Act of section 1 of the Police (Insurance of Voluntary Assistants) Act 1997 (c.45) does not affect the amendments made by that section to section 146A of the Local Government Act 1972 (Joint Authorities and Inner London Education Authority).

419 Last printed 01/02/08 18:12 PART 7

RATING

______

Rates and the Poor Law: a background note

Introduction 1. The modern law of rating and the modern law of social welfare have their origins, at least so far as statute law is concerned, in two Elizabethan Acts passed in 1597 and 1601.1 The 1601 Act (the Poor Relief Act 1601), which amended the 1597 Act, obliged each parish in England and Wales to relieve the aged and the helpless, to bring up unprotected children in habits of industry, and to provide work for those capable of it but lacking their usual trade. The 1601 Act established the parish as the administrative unit responsible for poor relief, with parish overseers collecting poor- rates from the inhabitants of a parish and then allocating relief, usually in the form of bread, clothing, fuel, the payment of rent, or cash. A consequence of the 1601 Act was the parish workhouse which appeared around 1650 and became widespread throughout parishes in England and Wales by the 1770s.

Parish loses poor law functions2 2. The parish remained the basis for the funding of poor relief until 1930. Changes before then were limited to altering the administrative arrangements for providing the relief. For example, the Poor Law (Amendment) Act 1834 created unions of parishes, each with its own board of guardians. The 1834 Act also placed the general management of the poor under the control of the Poor Law Commissioners. Their functions were transferred successively to the Poor Law Board in 18473 and the Local Government Board in 1871.4

3. The beginning of the 20th century saw the Liberal government developing the welfare state. The poor law responsibilities were gradually being transferred to the state. However, it was the Local Government Act 1929, coming into force on 1 April 1930, that resulted in the abolition of poor law unions and their boards of guardians. The 1920s had seen these unions amassing huge debts which they were unable to

1 39 Eliz.1 c.3 (1597); 43 Eliz.1 c.2 (1601). 2 See Anthony Brundage, The English Poor Laws, 1700-1930 (2002, Palgrave); “Social Policy in the UK” at www2.rgu.ac.uk/publicpolicy/introduction/uk.htm; and The Adam Smith Institute, Whats Wrong with the Welfare State? (1996) at www.adamsmith.org/images/uploads/publications/wwtws.pdf 3 Poor Law Board Act 1847 (10 & 11 Vict. c.109). 4 Local Government Board Act 1871 (34 & 35 Vict. c.70). The functions of the Local Government Board were transferred to the Minister of Health when the Board was abolished in 1919: Ministry of Health Act 1919, s 3(1)(a).

420 meet. The only option was a more centralised system. Their functions were transferred to public assistance authorities run by county boroughs and county councils.

Centralisation 4. It was becoming apparent that a fully centralised system was needed. Section 1 of the National Assistance Act 1948 swept aside the 1930s system by providing that:

the existing poor law shall cease to have effect, and shall be replaced by the provisions of Part 2 of this Act as to the rendering, out of moneys provided by Parliament, of assistance to persons in need….

5. Accordingly, the National Assistance Act 1948 terminated the existing poor law and replaced it with new arrangements whereby persons in need were assisted by the National Assistance Board. The National Assistance Act 1948 was one of three Acts which, coming into force on the same day, changed the face of the welfare state in Britain. The National Insurance Act 1946 created the National Insurance system we have today. The National Health Service Act 1948 introduced a health care system providing free health care to all. The Board was abolished by the Ministry of Social Security Act 1966, and its functions under Part 2 of the 1948 Act were transferred to the Minister of Social Security.5 The 1960s saw significant changes to the welfare state which was increasing in cost. There were additional reforms in the 1980s to deal with rising unemployment rates. The modern equivalent of assistance under Part 2 of the 1948 Act is income support under the Social Security Contributions and Benefits Act 19926 and payments out of the social fund.7

Abolition of parish overseers 6. So far as the overseers of the parish were concerned, their duties of raising money by rates for the poor of their parish under the 1601 Act were extended by later legislation so as to enable them to levy rates for other purposes. These purposes included raising money for general county purposes under section 26 of the County Rates Act 1852, and meeting the expenses of lighting public thoroughfares under section 33 of the Lighting and Watching Act 1833. Outside London these functions in relation to the making, levying and collecting of rates remained with the overseers until they were transferred to rating authorities in 1927 by the Rating and Valuation

5 The 1966 Act, ss 2, 39(3), Sch 8. 6 The 1992 Act, Pt 7. 7 The 1992 Act, Pt 8.

421 Act 1925.8 Thereafter the poor-rate became part of the consolidated general rate for each area. In London, other than the City, the metropolitan borough councils became overseers for rating purposes in 1899.9 In the City of London the Common Council became overseers of the parish of the City of London in 1908.10

Modern rating system 7. The 1601 Act survived until 1 April 1967 when it was repealed by the General Rate Act 1967.11 The 1967 Act consolidated the existing statutory powers of local rating authorities12 to set rates for their areas, and to apply the money raised to local purposes. Any rate made by a rating authority was levied as a single consolidated rate known as the general rate.13

8. Modern rating law is provided by the Local Government Finance Acts 1988 and 1992. The 1988 Act repealed the 1967 Act14 and replaced the old rating system with a new local taxation system. Part 3 of the 1988 Act provided for non-domestic rating whilst the 1992 Act established the council tax.

Conclusion 9. The abolition of parish-run poor law by the Local Government Act 1929 and the abolition of the existing poor law system itself by the National Assistance Act 1948 has made nearly all of the poor law legislation dating back to the eighteenth and nineteenth centuries unnecessary. The finance for providing the income and other support previously provided by the parish is today drawn either from central funds provided by central government or raised by local government from local taxation. The funding by local government of “poor-law type” assistance (for example, the provision of social services functions such as accommodation for elderly or disabled persons) derives not from parish rates but from the modern system of non-domestic rating and council tax established under the Local Government Finance Acts 1988 and 1992. (32/195/271) LAW/005/008/06 01 February 2008

8 Rating and Valuation Act 1925, ss 1(2), 68(1). The 1925 Act abolished overseers (s 62(1)(2)), and their miscellaneous functions and powers were transferred to other authorities by the Overseers Order 1927, SR & O 1927 No 55. 9 London Government Act 1899, s 11(1). 10 City of London (Union of Parishes) Act 1907, s 11. 11 The 1967 Act, s 117(1), Sch 14, Pt 1; General Rate Act 1967 (Commencement) Order 1967, SI 1967/499. The 1967 Act also repealed many other obsolete public general rating Acts. The 1597 Act was repealed by the Statute Law Revision Act 1863. 12 Rating authorities were the borough councils, the district councils, the Common Council of the City of London, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple: the1967 Act, s 1(1). 13 The 1967 Act, s 2(3). 14 The 1988 Act, ss 117(1), 149, Sch 13, Pt 1.

422 ______

Reference Extent of repeal or revocation ______

6 Ann c.46 (1707) The whole Act. (Plymouth Workhouse Act)

32 Geo.2 c.59 (1758) The whole Act. (Plymouth Poor Relief Act)

26 Geo.3 c.19 (1786) The whole Act. (Plymouth Poor Relief Act)

53 Geo.3 c.lxxiii (1813) The whole Act. (Plymouth Workhouse Act)

Plymouth Workhouse Charities Scheme The whole Act. Confirmation Act 1916 (6 & 7 Geo.5 c.lxiii) ______

Plymouth Workhouse Acts

1. This note proposes the formal repeal of five obsolete Acts relating to the workhouse at Plymouth. The following paragraphs describe these Acts.

6 Ann c.46 (1707) (Plymouth Workhouse Act) 2. According to its long title, the purpose of this 1707 Act was “for erecting a Workhouse in the Town and Borough of Plymouth in the County of Devon and for setting the Poor on Work and maintaining them there”.

3. The 1707 Act provided as follows: (a) establishment of a Corporation comprising the Mayor of Plymouth for the time being, six of the town’s magistrates, six members of the town’s Common Council, 20 inhabitants of the Parish of St Andrew and 18 inhabitants of the Parish of Charles (section 1) (b) arrangements for the elections of the Corporation members (sections 2 and 3) (c) the Corporation to be called “Guardians of the Poor of the Town of Plymouth in the County of Devon” (“the Guardians”) (section 4) (d) arrangements for the holding of the first elections to the Corporation in 1708; public notice of elections to be given in church (sections 5 and 6) (e) names of benefactors to be recorded (section 7) (f) election of officers and duration of term of office (sections 8 to 10)

423 (g) appointment of schoolmaster and house officers; replacement of guardians (sections 11 to 13) (h) meetings of the Corporation, passing of regulations and setting up of committees (sections 14 and 15) (i) vesting of the hospital or workhouse in Plymouth known as “the Poors Portion” in the Corporation for the use and benefit of the poor; Corporation empowered to buy adjacent land and erect new buildings (sections 16 and 17) (j) vesting in the Corporation of the almshouses (previously owned by the Major and Commonalty) used for poor people (section 18) (k) arrangement for payment of moneys to the Corporation out of the trust estate of Elize Hele who died in 1632; indemnity to the payers of such moneys; provision for paying costs of enacting this Act (sections 19 to 21) (l) the Guardians to ascertain the sums needed to build one or more workhouses, hospitals or houses of correction in Plymouth; rates to be levied on the inhabitants to meet the necessary expenditure; penalties for non-payment of these rates; appeals against rating assessments (sections 22 and 23) (m) Corporation to provide for the maintenance of the poor in the town; the Guardians to provide materials to set the poor to work and to compel vagrants and beggars to live and work in the workhouse; provision for children over 15 to be apprentices; justices of the peace to have supervisory jurisdiction over such apprentices (sections 24 to 26) (n) provision for punishment of misbehaviour amongst workhouse inmates including conscription into the army or navy; constables to apprehend vagrants and deliver them to the workhouse (sections 27 to 29)15 (o) Corporation to have power to agree arrangements with (a) parishes in Devon or Cornwall for setting poor people to work (b) charitable bodies for the maintenance and education of children; no settlement rights to be gained by the poor sent from other parishes (sections 30 and 31) (p) all charitable gifts previously given for the poor of the town to be paid to the Corporation (section 32) (q) Treasurer and other Corporation officials to account for moneys received by them (section 33)

15 Sections 27 to 29 were repealed by 53 Geo.3 c.lxxiii (1813): see below.

424 (r) all penalties imposed by this Act to be enforceable by distraining upon the offender’s goods (section 34) (s) all elections pursuant to this Act to be conducted by ballot (section 35) (t) miscellaneous provisions as to penalties, costs, citation and execution of this Act (sections 36 to 39).

4. In summary, the effect of the 1707 Act was to provide for the establishment of a workhouse in Plymouth for the benefit of the poor inhabitants in the parish of St Andrews and the parish of Charles. The 1707 Act also vested property in the Corporation including a number of almshouses and funds.

32 Geo.2 c.59 (1758) (Plymouth Poor Relief Act) 5. The purpose of this 1758 Act was, according to its long title, to “explain, amend, and render more effectual [the 1707 Act] … and for obliging the Mayor and Commonalty of Plymouth to contribute towards the County Rates of Devon; and for applying for the Relief of the Poor in the said Workhouse, certain Surplus Monies which have formerly arisen by the Assessments for raising the Land Tax in the said Town”.

6. The preamble to the 1758 Act explained that the income provided pursuant to the 1707 Act had proved insufficient to meet the needs of the poor, the numbers of which had greatly increased since 1707. Moreover the 1707 Act had given rise to a number of other problems which could be solved only by further legislation.

7. The 1758 Act provided as follows: (a) the Guardians of the Poor authorised to raise £2000 within the next three years to pay off their accrued debts, the money to be raised by levying a rate on the local inhabitants; the Guardians to meet annually for this purpose; appeals against rating assessments (sections 1 to 4) (b) the Guardians empowered to levy rates to raise an additional £1000 per annum to maintain the poor and make other payments (section 5) (c) arrangements to enable the Courts of the Corporation to meet monthly; penalty for churchwardens or overseers who fail to collect the rates (sections 6 and 7) (d) arrangement for vagrants to be despatched overseas from Plymouth (section 8)

425 (e) Mayor and Commonalty of Plymouth to contribute £5 8s. 4d. towards the County Rates of Devon, these rates to be collected by the High Constable of the Hundred of Roborrough and payable within 30 days of a demand; penalty for non-payment (sections 9 to 11) (f) Mayor, Recorder and justices of the peace of Plymouth empowered to make orders for the sending of rogues and vagrants away from the town and to recover their costs and expenses (subject to any limits on recovery of costs and expenses imposed by the County Justices (sections 12 and 13) (g) costs of obtaining this Act; 1707 Act to continue in force except as amended by this Act (sections 14 and 15) (h) all surplus rates moneys raised before 1757 to be paid to the treasurer of the Corporation workhouse on or before 29 September 1759 (section 16) (i) miscellaneous provisions as to limitation of actions, civil procedure, status and execution of Act (section 17).

26 Geo.3 c.19 (1786) (Plymouth Poor Relief Act) 8. The purpose of this 1786 Act, according to its long title, was “to amend and render more effectual [the 1707 and 1758 Acts] … and for granting further Power to the Guardians of the Poor of the Town of Plymouth, in the County of Devon”.

9. The preamble to the 1786 Act explained that the expense of maintaining the poor in the locality now greatly exceeded the income available, including the £1000 annual rates allowed under the 1758 Act. Moreover the Guardians of the Poor had been forced to borrow money to meet their liabilities.

10. The 1786 Act provided as follows: (a) increase to £1500 per annum in the sum that the Guardians could raise by rates to maintain the poor and pay ancillary debts (section 1) (b) if the £1500 proved to be insufficient in any year, the Guardians were authorised to apply to the justices of the peace for authority to levy an additional rate on the inhabitants (section 2) (c) any such application for an additional rate to be preceded by notice of the application being published after Sunday morning service in the local churches (section 3) (d) appeals against rating assessments to be made to the justices; raising money to pay costs of obtaining this Act (sections 4 and 5)

426 (e) penalty for removing any poor person between parishes without obtaining an order of removal from the justices; appeals against such penalty (sections 6 and 7) (f) 1707 and 1758 Acts to continue in force except as amended by this Act; limitation of actions; civil procedure; costs; and status of Act (sections 8 and 9).

53 Geo.3 c.lxxiii (1813) (Plymouth Workhouse Act) 11. The purpose of this 1813 Act was to amend the 1707, 1758 and 1786 Acts. The preamble to the 1813 Act explained that the expense of maintaining the poor in the locality continued to rise so that additional rates had to be levied regularly. Moreover the powers in the earlier Acts were insufficient to counter the tax-avoidance tactics adopted by the inhabitants, especially in the sub-dividing and sub-letting of premises.

12. The 1813 Act provided as follows: (a) increase to £6000 per annum in the sum that the Guardians could raise by rates to maintain the poor and pay ancillary debts (section 1)16 (b) if the £6000 proved to be insufficient in any year, the Guardians were authorised to apply to the justices of the peace for authority to levy an additional rate on the inhabitants; any such application to be published after Sunday morning service in the local churches (sections 2 and 3)17 (c) arrangements for meetings of the Corporation; quorum for meetings (sections 4 and 5) (d) the Guardians empowered to appoint surveyor (to value local properties) and collectors (to collect rate moneys); duties of collectors (sections 6 to 10) (e) landlords and owners to be liable to pay the rates in cases of low rents or short-term tenants; occupiers’ goods liable to be distrained upon for non- payment of rates (section 11) (f) provision for recovery of rates in cases of refusal to pay; warrants of distress; persons receiving rents deemed to be the owner; anti-avoidance provisions in cases where tenants leave before the date that the rates

16 This limit of £6000 per annum was repealed by Ministry of Health Provisional Orders Confirmation (No.2) Act 1924 (c.xiv), s 1, Sch, Plymouth (Poor Law) Order 1924, art 1. 17 Sections 2 and 3 were repealed by Ministry of Health Provisional Orders Confirmation (No.2) Act 1924 (c.xiv), s 1, Sch, Plymouth (Poor Law) Order 1924, art 2.

427 become due; these new provisions to apply equally to rates arrears arising before the 1813 Act took effect (sections 12 to 18) (g) charges to be payable for the costs of distress action; collectors to produce monthly lists of defaulters; the Guardians to be authorised to correct errors in rates assessments; power for justices to remit or reduce rates payments in certain cases (including hardship); rates arrears to be a charge on the premises; rates to be collected by overseers if no collector has been appointed (sections 19 to 24) (h) Corporation empowered to bind any child aged 10 years or older to an apprenticeship; power for vagrants to be sent to the House of Correction within the workhouse; appointment of a master or keeper of that House of Correction; justices empowered to confine lunatics in the workhouse or House of Correction (sections 25 to 28) (i) repeal of provision in the 1707 Act18 concerning punishment for unruly behaviour in the workhouse or House of Correction (and for despatch of beggars and vagrants to the workhouse); such provision to be substituted by new arrangements whereby offenders could be sent to the House of Correction or sent before the justices (sections 29 and 30) (j) new form of conviction for offences under this or the earlier three Acts; proceedings not to be quashed for want of form; justices empowered to visit House of Correction; removal of paupers from Plymouth to be effected by a constable; justices empowered to take action following complaint by a Governor of the Corporation; indemnity for the Guardians in certain cases (sections 31 to 36) (k) financial provisions for depositing moneys for the purchase of land in cases where the purchaser is under a disability (sections 37 to 40) (l) ratepayer inhabitants not barred from giving evidence in proceedings; persons levying distress not to be deemed trespassers for technical irregularities; appeals; limitation of actions (sections 41 to 46).

Plymouth Workhouse Charities Scheme Confirmation Act 1916 13. The purpose of this 1916 Act, according to its long title, was “to confirm a Scheme of the Charity Commissioners for the application or management of the Charities called or known as the Workhouse Charities in the County Borough of Plymouth in the County of Devon”.

18 The 1707 Act, ss 27 - 29.

428 14. The preamble to the 1916 Act recorded that the Charity Commissioners, in their 1914 Annual Report,19 had reported that they had approved a new scheme for the management of the workhouse charities in Plymouth. The report explained that these charities derived from the property vested in the Guardians by the 1707 Act, and that the current trustees had applied to the Charity Commissioners for authority to alter the trusts upon which the property and accumulated income was held. The scheme prepared by the Charity Commissioners to give effect to these alterations was set out in the Schedule to the 1916 Act. The Guardians continued as trustees of the charities.

Subsequent events 15. Subsequent schemes made by the Charity Commissioners in relation to these Plymouth workhouse charities have effectively superseded the five Acts outlined in this note.

16. By a scheme sealed on 28 March 1930, the Charity Commissioners approved a new body of trustees to administer the Plymouth workhouse charities and other Plymouth charities.20

17. By a scheme sealed on 10 February 1976, the Charity Commissioners approved new arrangements whereby the Plymouth workhouse charities became known as the Plymouth Advancement in Life and Relief in Need Charity. The objects of the charities were also changed.

18. Finally a scheme was sealed on 11 June 1999 establishing a single new charity, the Plymouth Charity Trust, which replaced and superseded the trusts of the 1976 scheme including those of the former Plymouth workhouse charities. The effect of this was to cause the Plymouth workhouse charities, as governed by the 1916 Act, to cease to exist. In consequence the Plymouth Advancement in Life and Relief in Need Charity was removed from the Central Register of Charities on 17 April 2000.

19. The establishment of the new charitable trust in 1999 in substitution for the old Plymouth workhouse charities and their assets means that the Acts of 1707,

19 Sixty-Second Report of the Charity Commissioners for England and Wales, Cd 7835. 20 This change was prompted by the Local Government Act 1929, which came into force on 1 April 1930 and abolished the existing parish-run poor law system, along with poor law unions and their boards of guardians. Section 19 of the 1929 Act contained special provision in cases where a board of guardians acting under a local Act held property for charitable purposes.

429 1758, 1786, 1813 and 1916 are now obsolete. Their repeal is proposed on that basis.

Extent 20. The provisions proposed for repeal applied only in Plymouth, Devon.

Consultation 21. The Department for Communities and Local Government, Plymouth City Council, Plymouth Charity Trust, the Charity Commission and the Local Government Association have been consulted about these repeal proposals.

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430 Reference Extent of repeal or revocation ______

31 Geo.3 c.87 (1791) The whole Act. (Sunderland Poor Relief Act)

49 Geo.3 c.xxii (1809) The whole Act. (Sunderland Poor Rates Act) ______

1. This note proposes the repeal of two obsolete Acts that were passed to raise money for the poor of Sunderland. The money was raised by the levying of rates and duties on cargo ships using the port of Sunderland. The principal cargo at that time would have been coal, which was exported to London and the east coast.21 These Acts have never been formally repealed.

31 Geo.3 c.87 (1791) (Sunderland Poor Relief Act) 2. According to its long title, the 1791 Act was passed “for the better Maintenance and Support of the Poor of the Parish of Sunderland near the Sea, in the County Palatine of Durham”.

3. The preamble to the 1791 Act recorded that the parish of Sunderland near the Sea was “of small extent, but very populous” with an ever-growing population so that the usual rates charged upon the parish inhabitants had become wholly inadequate to support the poor.

4. The 1791 Act provided as follows: (a) appointment of Commissioners to put the Act into execution; power to appoint new Commissioners; qualification of, and restrictions upon, Commissioners (sections 1 to 6) (b) meetings of Commissioners (the first being on 5 July 1791 at the George Inn in Sunderland); appointment of officers including clerks, treasurers and collectors; collectors to give security; restrictions on voting rights of Commissioners (sections 7 to 11) (c) moneys received and paid by Commissioners, and a note of their proceedings, to be recorded in writing; Commissioners to meet twice yearly to audit their accounts (sections 12 and 13)

21 Sunderland is situated on the north-east coast of England and its history as a port can be traced to Roman times. The town was awarded City status in 1992. The port of Sunderland has been operated by the City Council since 1972.

431 (d) Commissioners empowered to impose duties on ships registered at the port of Sunderland and carrying cargoes of coal, lime or limestone (section 14) (e) Commissioners to pay all sums collected under the Act to the churchwardens and overseers of the parish of Sunderland, such moneys to be used for the relief and maintenance of the poor of the parish; expenses of getting the Act passed to be deducted from the first receipts (sections 15 and 16) (f) any person who was legally settled in the townships of Bishopwearmouth, Bishopwearmouth Panns, Monkwearmouth or Monkwearmouth Shore by virtue of serving apprenticeship as a ship’s carpenter who later went to sea as a ship’s carpenter, sailor or in any other capacity for a period of 3 years was treated as legally settled in the parish of Sunderland (section 17) (g) this Act not to affect any existing court decision; no ship to be given clearance pending payment of all rates and duties; power to distrain for unpaid rates and duties; collectors to keep proper accounts (sections 18 to 21) (h) Commissioners to meet annually to fix the rates and duties to be levied for the following year (section 22) (i) enforcement; distress; appeals; limitation of actions; inhabitants competent to be witnesses; status of Act (sections 23 to 28).

49 Geo.3 c.xxii (1809) (Sunderland Poor Rates Act) 5. According to its long title, the purpose of this 1809 Act was: for explaining and amending an Act passed in … [1791] for the better Maintenance and Support of the Poor of the Parish of Sunderland near the Sea, in the County Palatine of Durham; and for increasing the Rates therein directed to be imposed.

6. The preamble to the 1809 Act recorded that, although great progress had been made in the execution of the 1791 Act, the rates and duties imposed by that Act had been found to be insufficient for the purpose. Moreover other provisions of the 1791 Act needed amendment.

7. The 1809 Act provided as follows: (a) appointment of Commissioners to execute the 1791 Act and the present Act; power to elect and appoint new Commissioners; Commissioners’ oaths; saving for the validity of acts of Commissioner prior to a

432 conviction; meetings of Commissioners (the first being on 1 August 1809 at the George Inn in Sunderland) (sections 1 to 6) (b) increases in the rates and duties on ships using the port of Sunderland; Commissioners to make quarterly assessments on every ship liable for the payment of rates and duties; powers to reduce or increase these rates; no ship to be given clearance pending payment of all rates and duties; power to levy distress upon the goods of ship-owners in the event of non-payment of rates and duties (sections 7 to 12) (c) all moneys collected under this Act to be paid to the churchwardens and overseers of the poor; churchwardens and overseers to give receipts and keep proper accounts and deliver annual account of moneys received (penalty for failure to deliver such account) (sections 13 to 17) (d) restriction of right of settlement given to carpenters by section 17 of the 1791 Act (section 18) (e) powers of the 1791 Act to apply to the present Act; expenses of the enactment of the present Act; distress not unlawful on grounds of irregularity; appeals; limitation of actions; inhabitants competent to be witnesses; status of Act (sections 19 to 25)

8. Although neither the 1791 nor the 1809 Acts have ever been formally repealed, they have long since ceased to be used to support the poor of Sunderland. Both Acts are therefore obsolete and may be repealed on that basis.

Extent 9. The provisions proposed for repeal applied only in the area that is now the City of Sunderland.

Consultation 10. HM Treasury, HM Revenue and Customs, the Department for Communities and Local Government, Sunderland City Council, Sunderland Local Studies Centre, the Port of Sunderland and the Local Government Association have been consulted about these repeal proposals.

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433 Reference Extent of repeal or revocation ______

50 Geo.3 c.i (1810) The whole Act. (Cumberland County Rate Act) ______

50 Geo.3 c.i (1810) (Cumberland County Rate Act) 1. This note proposes the repeal of an obsolete 1810 Act relating to local rates payable in Cumberland.22 The Act dates back to an age when local taxes were raised or ordered by justices of the peace for a county (“the county justices”). See the attached Annex for background information.

2. According to its long title, the purpose of this 1810 Act was “for making a fair and equal County Rate for the County of Cumberland.”

3. The preamble to the 1810 Act records that the existing county rate operated unfairly, with the result that “payment thereof falls upon the occupiers of messuages, lands, tenements, and hereditaments within the said county, in very unequal proportions”. Accordingly the existing powers of the Cumberland county justices needed amending.

4. The 1810 Act provided as follows: (a) the county justices authorised to rate all property in the county at a maximum annual rate of eight pence in the pound and to levy the rate accordingly; the local justices in each area to meet together with the overseers of the poor for each area, the latter to produce details of the rates to be levied and the persons liable to pay; penalty on overseers who failed to comply; county justices authorised to call for accounts (sections 1 to 3) (b) the county justices authorised, upon receiving assessments of rates in each locality, to make rates and assessments throughout the county; overseers ordered to collect the rates and pay them to the treasurer, the rate being equal as between all ratepayers in each parish (section 4) (c) powers to levy distress in the event of non-payment of rates; power of county justices in areas where there are no overseers; appeals against over-rating; expenses of appeals (sections 5 to 9)

22 Cumberland was abolished as a county pursuant to the Local Government Act 1972 and became part of the new county of Cumbria.

434 (d) powers of earlier Acts to be applied to present Act; expenses of the enactment of the present Act (sections 10 and 11) (e) power for county justices to borrow against the security of the rates; priority and discharge of mortgages; payment of interest (sections 12 to 15) (f) payment of allowances and compensation to constables; plaintiffs to give notice of any proceedings arising under the present Act; limitation of actions; status of Act (sections 16 to 19).

5. The 1810 Act has long been obsolete. As indicated in the Annex, the rate- levying functions of the county justices were abolished by the Local Government Act 1888 upon the establishment of the new system of county councils. Local taxes in England today are raised not by county councils but by district or London borough councils under powers provided by the Local Government Finance Acts 1988 and 1992. The powers provided by the 1810 Act are accordingly unnecessary and the Act may be repealed on that basis.

Extent 6. The 1810 Act applied only to Cumberland (now Cumbria).

Consultation 7. HM Treasury, the Department for Communities and Local Government, Cumbria County Council and the Local Government Association have been consulted about these repeal proposals.

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435 ANNEX

1. Before the establishment of county councils by the Local Government Act 1888,23 many administrative functions were vested in the justices of the county in quarter sessions (“the county justices”).24 The 1888 Act transferred most of these administrative functions to the county councils, including the making, assessing and levying of all county and other rates, and the making of orders for the payment of sums out of any rate or county stock or fund.25

2. So far as the poor law was concerned, the parish rather than the county was the administrative unit responsible for providing poor relief. Parish overseers collected poor-rates from the inhabitants of a parish and then allocated relief to the poor of that parish. Eventually, overseers were abolished in 1927 and their functions were transferred to rating authorities.26 Thereafter the poor-rate became part of the consolidated general rate for each area.

3. The modern rating system is provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act provided for non-domestic rating whilst the 1992 Act established the council tax. So far as England is concerned, these taxes are levied not by county councils but principally by district councils or London borough councils.27

23 The 1888 Act, s 1. 24 All justices of the peace acted under a commission of the peace issued by the Crown for any county. Quarter sessions were the quarterly meetings of the whole body of the justices of the peace for a county for the transaction of business. The justices were presided over by a chairman who, if legally qualified, would be a High Court or county court judge or a recorder. Quarter sessions were abolished by the Courts Act 1971 which replaced them (and the assizes) with the modern Crown Court system. 25 The 1888 Act, s 3. Other functions transferred to county councils were powers to repair and rebuild assize courts and judges’ lodgings. 26 Rating and Valuation Act 1925, ss 1(2), 62(1)(2) and 68(1); Overseers Order 1927, SR&O 1927 No 55. 27 Local Government Finance Act 1992, s 1. County councils are precepting authorities i.e. they issue precepts or demands for the levying of taxes from district councils or London borough councils and have no power to levy any local tax directly.

436 Reference Extent of repeal or revocation ______

54 Geo.3 c.ciii (1814) The whole Act. (Buckinghamshire County Rate Act)

Bucks County Rate Amendment Act 1860 The whole Act. (23 & 24 Vict. c.lxxxvi) ______

Bucks County Rate Acts28 1. This note proposes the repeal of two obsolete 19th century Acts relating to local taxes payable in Buckinghamshire. The Acts date back to an age when local taxes were raised or ordered by justices of the peace for a county (“the county justices”). See the attached Annex for background information.

54 Geo.3 c.ciii (1814) (Buckinghamshire County Rate Act) 2. According to its long title, the purpose of this 1814 Act was “for making a fair and equal County Rate for the County of Buckingham”.29

3. The preamble to the 1814 Act records that the assessments by which the existing county rate were collected had “become very disproportionate and unequal” and that the powers given to the county justices to make a fair and equal county rate needed amending.

4. The 1814 Act provided as follows:- (a) the county justices were required to make a county rate for every parish, town or other place in the county according to the annual rent or value of the property in each such place; written return to be made of the annual rent or value of all property in each such place; future returns to be made by the churchwardens and overseers of each parish (sections 1 to 3) (b) the county justices were authorised to assess and tax every parish, town or other place in the county rateably and in due proportion (not exceeding one penny in the pound) according to the value of all property in each place (section 4)

28 The two Acts described in this note may together be cited as the Bucks County Rate Acts: Bucks County Rate Amendment Act 1860, s 6. 29 The 1814 Act has already been repealed so far as it applies to the county of Berkshire: Berkshire Act 1986 (c.ii), s 78(1), Sch 3, Pt 1. The county of Berkshire was constituted, by virtue of the Local Government Act 1972, so as to include areas in the administrative county of Buckingham (i.e. the borough of Slough, the urban district of Eton and part of the rural district of Eton): the 1986 Act, preamble.

437 (c) penalties for failure to carry out duties required by this Act (sections 5 and 6) (d) default powers for county justices to act; power to levy rates where there existed no machinery for collecting a poor rate (sections 7 to 9) (e) appeals; powers of earlier Acts to apply to this Act; Act not to extend to the boroughs of Buckingham and Chepping Wycombe; accounts; expenses of the enactment of the present Act; limitation of actions; status of Act (sections 10 to 18).

Bucks County Rate Amendment Act 1860 (23 & 24 Vict. c.lxxxvi) 5. The purpose of this 1860 Act was to amend the 1814 Act in the light of doubts that had arisen as to certain powers contained in the 1814 Act as a result of an Act of 1844.30

6. The 1860 Act provided as follows: (a) authorised the county justices to direct that any sum levied by way of county rates on any parish, town or other place should be payable not by precept or warrant issued under the Act of 1844 but by a separate warrant or precept issued by the justices to the overseers or other officers in any such place (section 1) (b) penalty in event of overseers or other officers failing to comply with their duties under section 1; power for overseers and other officers to raise the necessary sums by means of a rate made upon all the occupiers of land in the parish (sections 2 and 3) (c) appeals, expenses of enactment; citation (sections 4, 5 and 6)

7. The 1814 and 1860 Acts have long been obsolete. As indicated in the Annex, the rate-levying functions of the county justices were abolished by the Local Government Act 1888 upon the establishment of the new system of county councils. Local taxes in England today are raised not by county councils but by district or London borough councils under powers provided by the Local Government Finance Acts 1988 and 1992. The powers provided by these two 19th century Acts are accordingly unnecessary and they may both be repealed on that basis.

Extent 8. The provisions proposed for repeal applied only to Buckinghamshire.

30 7 & 8 Vict. c.33, (County Rates Act 1844).

438 Consultation 9. HM Treasury, the Department for Communities and Local Government, Buckinghamshire County Council and the Local Government Association have been consulted about these repeal proposals.

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439 ANNEX

1. Before the establishment of county councils by the Local Government Act 1888,31 many administrative functions were vested in the justices of the county in quarter sessions (“the county justices”).32 The 1888 Act transferred most of these administrative functions to the county councils, including the making, assessing and levying of all county and other rates, and the making of orders for the payment of sums out of any rate or county stock or fund.33

2. So far as the poor law was concerned, the parish rather than the county was the administrative unit responsible for providing poor relief. Parish overseers collected poor-rates from the inhabitants of a parish and then allocated relief to the poor of that parish. Eventually, overseers were abolished in 1927 and their functions were transferred to rating authorities.34 Thereafter the poor-rate became part of the consolidated general rate for each area.

31 The 1888 Act, s 1. 32 All justices of the peace acted under a commission of the peace issued by the Crown for any county. Quarter sessions were the quarterly meetings of the whole body of the justices of the peace for a county for the transaction of business. The justices were presided over by a chairman who, if legally qualified, would be a High Court or county court judge or a recorder. Quarter sessions were abolished by the Courts Act 1971 which replaced them (and the assizes) with the modern Crown Court system. 33 The 1888 Act, s 3. Other functions transferred to county councils were powers to repair and rebuild assize courts and judges’ lodgings. 34 Rating and Valuation Act 1925, ss 1(2), 62(1)(2) and 68(1); Overseers Order 1927, SR&O 1927 No 55. 35 Local Government Finance Act 1992, s 1. County councils are precepting authorities i.e. they issue precepts or demands for the levying of taxes from district councils or London borough councils and have no power to levy any local tax directly.

440 Reference Extent of repeal or revocation ______

3 Geo.4 c.cvii (1822) The whole Act. (Middlesex County Rates Act) ______

3 Geo.4 c.cvii (1822) (Middlesex County Rates Act) 1. This note proposes the repeal of an obsolete 1822 Act relating to local taxes payable in Middlesex. The Act dates back to an age when local taxes were raised or ordered by justices of the peace for a county (“the county justices”). See the attached Annex for background information. The 1822 Act has already been partly repealed by an Act of 1831 (see below).

2. According to its long title, the purpose of the 1822 Act was “for regulating the Office of Treasurer, and altering and amending the Acts now in force for assessing, collecting, and levying of County Rates, so far as the same relate to the County of Middlesex”.36

3. The preamble to the 1822 Act records that: (a) abuses and irregularities had occurred in the execution of the office of treasurer for the county of Middlesex, and (b) further provision was needed concerning the assessing, collecting and levying of the county rate.

4. The 1822 Act provided as follows: (a) no justice of the peace for the county was to be elected as county treasurer; treasurer to give security in the form of bonds; penalty for acting as treasurer without giving such security (sections 1 to 5) (b) treasurer to deliver accounts at every quarter sessions and to transmit accounts, when approved, to parish officers; removal of treasurer from office upon default (sections 6 to 8) (c) county justices authorised to make a county rate; provision in cases where rate receipts not fully utilised; county justices authorised to make new rate in case of death, bankruptcy or insolvency of treasurer; validation of the county rate made in January 1822 (sections 9 to 13)

36 The county of Middlesex no longer exists as an administrative area. It was abolished as an administrative county in 1965 (pursuant to the London Government Act 1963) when the new county of Greater London was formed from the counties of London and Middlesex and parts of the counties of Essex, Hertfordshire, Kent and Surrey.

441 (d) churchwardens and overseers in each parish authorised to arrange the inspection of the treasurer’s accounts, demand copies of rates and accounts and appeal against rates levied (sections 14 to 16) (e) rate not to be quashed for want of form; expense of appeals and of obtaining the present Act; status of Act (sections 17 to 20).

5. The 1822 Act has long been obsolete. As indicated in the Annex, the rate- levying functions of the county justices were abolished by the Local Government Act 1888 upon the establishment of the new system of county councils. Local taxes in England today are raised not by county councils but by district or London borough councils under powers provided by the Local Government Finance Acts 1988 and 1992. The provisions in the 1822 Act relating to the office of treasurer were ancillary to the county rate provisions. Accordingly the powers provided by the 1822 Act are unnecessary and the Act may be repealed on that basis. Indeed the 1822 Act has already been repealed so far as it authorised payment of county rates to office- holders known as High Constables.37

Extent 6. The 1822 Act applied only to the county of Middlesex.

Consultation 7. HM Treasury, the Department for Communities and Local Government, the Greater London Authority (as successor to Middlesex County Council) and the Local Government Association have been consulted about these repeal proposals.

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37 (1831) 1 Will.4 c.xlviii (Middlesex County Rates), s 1. The 1831 Act also repealed a number of other enactments so far as they related to the county rate functions of High Constables.

442 ANNEX

1. Before the establishment of county councils by the Local Government Act 1888,38 many administrative functions were vested in the justices of the county in quarter sessions (“the county justices”).39 The 1888 Act transferred most of these administrative functions to the county councils, including the making, assessing and levying of all county and other rates, and the making of orders for the payment of sums out of any rate or county stock or fund.40

2. So far as the poor law was concerned, the parish rather than the county was the administrative unit responsible for providing poor relief. Parish overseers collected poor-rates from the inhabitants of a parish and then allocated relief to the poor of that parish. Eventually, overseers were abolished in 1927 and their functions were transferred to rating authorities.41 Thereafter the poor-rate became part of the consolidated general rate for each area.

38 The 1888 Act, s 1. 39 All justices of the peace acted under a commission of the peace issued by the Crown for any county. Quarter sessions were the quarterly meetings of the whole body of the justices of the peace for a county for the transaction of business. The justices were presided over by a chairman who, if legally qualified, would be a High Court or county court judge or a recorder. Quarter sessions were abolished by the Courts Act 1971 which replaced them (and the assizes) with the modern Crown Court system. 40 The 1888 Act, s 3. Other functions transferred to county councils were powers to repair and rebuild assize courts and judges’ lodgings. 41 Rating and Valuation Act 1925, ss 1(2), 62(1)(2) and 68(1); Overseers Order 1927, SR&O 1927 No 55. 42 Local Government Finance Act 1992, s 1. County councils are precepting authorities i.e. they issue precepts or demands for the levying of taxes from district councils or London borough councils and have no power to levy any local tax directly.

443 Reference Extent of repeal or revocation ______

6 Geo.4 c.lxxvi (1825) The whole Act. (Croydon Rates Act) ______

6 Geo.4 c.lxxvi (1825) (Croydon Rates Act) 1. This note proposes the repeal of an obsolete 1825 Act relating to the collecting of rates for the poor living in Croydon, Surrey. The Act has already been partly repealed by the Croydon Corporation Act 1900. See the accompanying background note on rates and the poor law.

2. According to its long title, the 1825 Act was passed “for better assessing and collecting the Poor and other Parochial Rates in the Parish of Croydon in the County of Surrey”.43

3. The preamble to the 1825 Act recorded that the poor living in Croydon “are numerous, and supported at a great Expence”. It also recorded that the existing laws for collecting the parish rates were inconvenient, ineffectual and easily evaded. Accordingly, the purpose of the 1825 Act was to tighten up the existing machinery for collecting the rates.

4. The 1825 Act provided as follows: (a) landlords to be responsible for paying the parish rates in all cases where their property comprised small houses, houses let to weekly or monthly tenants, separate apartments or furnished premises; landlords allowed to apply for the rates to be discounted (section 1) (b) any landlord, owner or occupier liable to pay parish rates who failed to do so could be summoned to appear before the county justices upon pain of having their goods distrained upon; committal to prison if goods were insufficient or were removed fraudulently; tenants and other occupiers were liable to pay any parish rates not paid by the landlord (up to the amount of the rent due) (sections 2 to 4) (c) anyone receiving rents was deemed to be the owner of the relevant premises; Act not to affect any existing agreement between landlord and tenant; prescribed form of warrant of distress; power for county justices to rectify errors in rating assessments; appeals from rates (sections 5 to 9)

43 Now the London Borough of Croydon.

444 (d) authority for the inhabitants of the parish to appoint one or more persons to be collectors of the parish rates; security to be required of collectors; collectors to keep accounts and hand over rate receipts; penalties for collectors failing in their duties (sections 10 to 12) (e) remedy of distress not to be unlawful because of irregularity; inhabitants competent to be witnesses in proceedings; appeals; county justices authorised to amend rates; certiorari not to apply to proceedings under this Act; limitation of actions; expenses of enactment; status of Act (sections 13 to 20).

5. Although the provisions of the 1825 Act about the appointment of collectors of the parish rates and the taking of security from such collectors has long since been repealed,44 the rest of the Act remains on the statute book. The system of parish- based poor relief supported by the 1825 Act has, however, been obsolete for many years. The functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.45 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly the remaining provisions of the 1825 Act have been superseded and may be repealed on that basis.

Extent 6. The 1825 Act applied only in an area that is now within the London Borough of Croydon.

44 Croydon Corporation Act 1900 (63 & 64 Vict. c.ccxxix), s 111(3). 45 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929.

445 Consultation 7. HM Treasury, the Department for Communities and Local Government, the London Borough of Croydon, Surrey County Council and the Local Government Association have been consulted about these repeal proposals.

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446 Reference Extent of repeal or revocation ______

9 Geo.4 c.i (1828) The whole Act. (Merton Rates Act) ______

9 Geo.4 c.i (1828) (Merton Rates Act) 1. This note proposes the repeal of an obsolete 1828 Act relating to the collecting of rates for the poor living in Merton, Surrey.46 See the accompanying background note on rates and the poor law.

2. According to its long title, the 1828 Act was passed “for better assessing and collecting the Poor and other Rates in the Parish of Saint Mary Martin otherwise Merton, in the County of Surrey”.

3. The preamble to the 1828 Act recorded that the poor living in Merton “are numerous, and supported at a great Expence”. It also recorded that the existing laws for collecting the parish rates were inconvenient, ineffectual and easily evaded. Accordingly, the purpose of the 1828 Act was to tighten up the existing machinery for collecting the rates.

4. The 1828 Act provided as follows: (a) landlords to be responsible for paying the parish rates in all cases where their property comprised small houses, houses let to weekly or monthly tenants, separate apartments or furnished premises; landlords allowed to apply for the rates to be discounted (section 1) (b) anyone receiving rents was deemed to be the owner of the relevant premises (section 2) (c) authority for the inhabitants of the parish to appoint one or more persons to be collectors of the parish rates; security to be required of collectors; removal of collectors; collectors to keep accounts and hand over rate receipts; penalties for collectors failing in their duties (sections 3 to 6) (d) churchwardens and overseers authorised to borrow money by means of annuities, bonds or mortgages on the security of the poor rate; transfer of annuities, bonds and mortgages (sections 7 to 12) (e) any landlord, owner or occupier liable to pay parish rates who failed to do so could be summoned to appear before the county justices upon pain of

46 Now the London Borough of Merton.

447 having their goods distrained upon; committal to prison if goods were insufficient or were removed fraudulently; tenants and other occupiers were liable to pay any parish rates not paid by the landlord (up to the amount of the rent due) (sections 13 to 15) (f) prescribed form of warrant of distress; power for county justices to amend rates; form of conviction; appeals from rates (sections 16 to 19) (g) remedy of distress not to be unlawful because of irregularity; inhabitants competent to be witnesses in proceedings; certiorari not to apply to proceedings under this Act; limitation of actions; expenses of enactment; status of Act (sections 20 to 25).

5. Although the system of parish-based poor relief supported by the 1828 Act has been obsolete for many years, the 1828 Act remains on the statute book to this day. The functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.47 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly the 1828 Act has been superseded and may be repealed on that basis.

Extent 6. The 1828 Act applied only in an area that is now within the London Borough of Merton.

Consultation 7. HM Treasury, the Department for Communities and Local Government, the London Borough of Merton, Surrey County Council and the Local Government Association have been consulted about these repeal proposals.

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47 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929.

448 Reference Extent of repeal or revocation ______

9 Geo.4 c.ii (1828) The whole Act. (St Mary Wimbledon Rates Act) ______

9 Geo.4 c.ii (1828) (St Mary Wimbledon Rates Act) 1. This note proposes the repeal of an obsolete 1828 Act relating to the collecting of rates for the poor living in the parish of St Mary Wimbledon in the County of Surrey.48 See the accompanying background note on rates and the poor law.

2. According to its long title, the 1828 Act was passed “for better assessing and collecting the Poor and other Rates in the Parish of Saint Mary Wimbledon in the County of Surrey”.

3. The preamble to the 1828 Act recorded that the poor living in the parish of St Mary Wimbledon “are numerous, and supported at a great Expence”. It also recorded that the existing laws for collecting the parish rates were inconvenient, ineffectual and easily evaded. Accordingly, the purpose of the 1828 Act was to tighten up the existing machinery for collecting the rates.

4. The 1828 Act provided as follows: (a) landlords to be responsible for paying the parish rates in all cases where their property comprised small houses, houses let to weekly or monthly tenants, separate apartments or furnished premises; landlords allowed to apply for the rates to be discounted (section 1) (b) churchwardens and overseers authorised to appoint a surveyor to estimate the annual value of all property in the parish (section 2) (c) any landlord, owner or occupier liable to pay parish rates who failed to do so could be summoned to appear before the county justices upon pain of having their goods distrained upon; committal to prison if goods were insufficient or were removed fraudulently; tenants and other occupiers were liable to pay any parish rates not paid by the landlord (up to the amount of the rent due) (sections 3 to 5) (d) anyone receiving rents was deemed to be the owner of the relevant premises; Act not to affect any existing agreement between landlord and

48 Now the London Borough of Merton.

449 tenant; prescribed form of warrant of distress; power for county justices to rectify errors in rating assessments; appeals from rates (sections 6 to 10) (e) authority for the inhabitants of the parish to appoint one or more persons to be collectors of the parish rates; security to be required of collectors; collectors to keep accounts and hand over rate receipts; penalties for collectors failing in their duties (sections 11 to 13) (f) remedy of distress not to be unlawful because of irregularity; inhabitants competent to be witnesses in proceedings; appeals; county justices authorised to amend rates; form of conviction; certiorari not to apply to proceedings under this Act; limitation of actions; expenses of enactment; status of Act (sections 14 to 22).

5. Although the system of parish-based poor relief supported by the 1828 Act has been obsolete for many years, the 1828 Act remains on the statute book to this day. The functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.49 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly the 1828 Act has been superseded and may be repealed on that basis.

Extent 6. The 1828 Act applied only in an area that is now within the London Borough of Merton.

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49 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929.

450 Reference Extent of repeal or revocation ______

4 & 5 Will.4 c.v (1834) The whole Act. (Sculcoates Rates Act) ______

4 & 5 Will.4 c.v (1834) (Sculcoates Rates Act) 1. This note proposes the repeal of an obsolete 1834 Act relating to the collecting of rates for the poor living in the parish of Sculcoates in the East Riding of Yorkshire.50 See the accompanying background note on rates and the poor law.

2. According to its long title, the 1834 Act was passed “for better assessing the Poor and other rates on small Tenements within the Parish of Sculcoates in the East Riding of the County of York”.

3. The 1834 Act provided as follows: (a) all owners of buildings within the parish of which the annual rent or value is less than £10 or which are let to weekly or monthly tenants or which are let in separate apartments are to be liable to pay the poor and other rates of the parish in respect of those buildings, instead of the actual occupiers of them (section 1) (b) owners could be rated even if their names were not known to the parish churchwardens and overseers; anyone receiving rents was deemed to be the owner of the relevant premises; power for churchwardens and overseers to agree with the owner for a discounted payment (sections 2 to 4) (c) action for debt for non-payment of rates in cases where the owner was not a resident householder within the parish; tenants and other occupiers were liable to pay any parish rates not paid by the owner (up to the amount of the rent due) upon pain of having their goods distrained against; transitional provision to enable landlords to recoup rates from tenants; occupiers compellable to disclose name of any owner (sections 5 to 9) (d) authority for the inhabitants of the parish to appoint one or more persons to be collectors of the parish rates; security to be required of collectors; collectors to keep accounts and hand over rate receipts; penalties for collectors failing in their duties (sections 10 to 12)

50 Sculcoates is today an area within Kingston-upon-Hull.

451 (e) enforcement of recovery of rates; warrants of distress for non-payment of rates may cover more than one person or property; appeals; rate books to be inspected without charge; power of justices of the peace to administer oaths (sections 13 to 17) (f) expenses of enactment; interpretation; status of Act (sections 18 to 20).

4. Although the system of parish-based poor relief supported by the 1834 Act has been obsolete for many years, the 1834 Act remains on the statute book to this day. The functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.51 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1834 Act has been superseded and may be repealed on that basis.

Extent 5. The provisions proposed for repeal applied only to an area that today falls within Kingston-upon-Hull.

Consultation 6. HM Treasury, the Department for Communities and Local Government, the Local Government Association and Hull City Council have been consulted about these repeal proposals.

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51 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929.

452 Reference Extent of repeal or revocation ______

4 & 5 Will.4 c.vi (1834) The whole Act. (Liverpool Rates Act) ______

4 & 5 Will.4 c.vi (1834) (Liverpool Rates Act) 1. The single purpose of this 1834 Act was to repeal an enactment passed in 1831 “for better assessing and recovering the Poor and other Rates upon small Tenements within the Parish of Liverpool in the County Palatine of Lancaster”.52

2. The preamble to the 1834 Act recorded that the various rates and assessments made under the 1831 Act “has occasioned much Discontent in the said Parish, and has tended indirectly to the Impoverishment and Oppression of the Occupiers of the Tenements within the said Parish not exceeding the annual Value of Twelve Pounds, and it is expedient that the said recited Act should be repealed”.

3. Accordingly the 1834 Act provided as follows: (a) repeal of the 1831 Act (section 1) (b) saving for rates and assessments already made under the 1831 Act (section 2) (c) expenses and status of the 1834 Act (sections 3 and 4).

4. The repeal of the 1831 Act took effect when the 1834 Act came into force on 26 March 1834. Since the 1834 Act can now serve no further purpose, it may now itself be repealed as being unnecessary.

Extent 5. The provisions proposed for repeal applied only to Liverpool.

Consultation 6. HM Treasury, the Department for Communities and Local Government, Liverpool City Council and the Local Government Association have been consulted about these repeal proposals.

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52 (1831) 1 Will.4 c.xxi.

453 Reference Extent of repeal or revocation ______

5 & 6 Will.4 c.v (1835) The whole Act. (Barking Rates Act) ______

5 & 6 Will.4 c.v (1835) (Barking Rates Act) 1. This note proposes the repeal of an obsolete 1835 Act relating to the collecting of rates for the poor living in Barking, Essex.53 See the accompanying background note on rates and the poor law.

2. According to its long title, the 1835 Act was passed “for better assessing and collecting the Poor and other Rates in the Parish of Barking in the County of Essex”.

3. The preamble to the 1835 Act recorded that the poor living in Barking “are numerous, and supported at a great Expence”. It also recorded that the existing laws for collecting the poor rates and other parish rates were inconvenient, ineffectual and often evaded. Accordingly, the purpose of the 1835 Act was to tighten up the existing machinery for collecting the rates.

4. The 1835 Act provided as follows: (a) all owners of buildings within the parish of which the annual rent or value is less than £10, or which are let for a period of less than one year, or which are let furnished, or in lodgings, in separate apartments, or with rent paid more often than quarterly are to be liable to pay the poor and other parish rates in respect of those buildings, instead of the actual occupier of them (section 1) (b) such owners could be rated at a discount in particular circumstances; tenants and other occupiers were liable to pay any rates not paid by the landlord (up to the amount of the rent due) upon pain of having their goods distrained against (sections 2 to 4) (c) anyone receiving or collecting rents was deemed to be the owner of the relevant premises; appeals; Act not to affect any existing agreement between landlord and tenant; anyone liable to pay rates who refused to do so could be summoned to appear before the county justices upon pain of having their goods distrained against; form of warrant of distress (sections 5 to 10)

454 (d) expenses of enactment; status of Act (sections 11 and 12).

5. Although the system of parish-based poor relief supported by the 1835 Act has been obsolete for many years, the 1835 Act remains on the statute book to this day. The functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.54 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1835 Act has been superseded and may be repealed on that basis.

Extent 6. The provisions proposed for repeal applied within an area that is now within the London Borough of Barking and Dagenham.

Consultation 7. HM Treasury, the Department for Communities and Local Government, the London Borough of Barking and Dagenham and the Local Government Association have been consulted about these repeal proposals.

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53 Now the London Borough of Barking and Dagenham. 54 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929.

455 Reference Extent of repeal or revocation ______

4 & 5 Vict. c.lxxii (1841) The whole Act. (Kidderminster Poor Rates Act) ______

4 & 5 Vict. c.lxxii (1841) (Kidderminster Poor Rates Act) 1. This note proposes the repeal of an obsolete 1841 Act relating to the collecting of rates for the poor living in Kidderminster. See the accompanying background note on rates and the poor law.

2. According to its long title, the 1841 Act was passed “for better assessing and collecting the Poor Rates in the Borough of Kidderminster in the County of Worcester”.

3. The preamble to the 1841 Act recorded that the poor living in Kidderminster “are numerous, and supported at a great Expence”. It also recorded that the existing laws for collecting the poor rate were inconvenient, ineffectual and unproductive. Accordingly, the purpose of the 1841 Act was to tighten up the existing machinery for collecting the rates.

4. The 1841 Act provided as follows: (a) all owners of buildings within the parish of which the annual rent or value is less than £10 should be liable to pay the poor rate in respect of those buildings, instead of the actual occupiers of them (section 1) (b) such owners could be rated at a discount in particular circumstances; meetings to be held annually by the overseers of the poor to agree such arrangements; tenants and other occupiers were liable to pay any rates not paid by the landlord (up to the amount of the rent due) upon pain of having their goods distrained against (sections 2 to 4) (c) appeals by owners; overseers authorised to correct errors and omissions; actions for non-payment of rates in cases where the owner was not a resident householder within the borough; penalty for any tenant or occupier refusing to give the name of the owner; arrears of rates to be a charge on the premises, recovery by action for debt (sections 5 to 9) (d) justices authorised in particular circumstances to remit rates otherwise payable by an owner; apportionment of rates between owner and successor in cases where the owner sells the property having already

456 paid the rates; liability for rates after property ceases to be unoccupied; Act not to affect any existing agreement between landlord and tenant; anyone receiving rent deemed to be the owner of the relevant premises (sections 10 to 14) (e) saving for existing franchise rights; expenses of enactment; interpretation; status of Act (sections 15 to 18).

5. Although the system of parish-based poor relief supported by the 1841 Act has been obsolete for many years, the 1841 Act remains on the statute book to this day. The functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.55 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1841 Act has been superseded and may be repealed on that basis.

Extent 6. The provisions proposed for repeal applied only to Kidderminster.

Consultation 7. HM Treasury, the Department for Communities and Local Government, Wyre Forest District Council, Worcestershire County Council and the Local Government Association have been consulted about these repeal proposals.

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55 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929.

457 Reference Extent of repeal or revocation ______

8 & 9 Vict. c.lxxiv (1845) The whole Act. (Hemel Hempsted Rates Act) ______

8 & 9 Vict. c.lxxiv (1845) (Hemel Hempsted Rates Act) 1. This note proposes the repeal of an obsolete 1845 Act relating to the collecting of rates in the parish of Hemel Hempstead, Hertfordshire.56 The Act dates back to a time when local taxes were commonly raised on a parish basis. See the accompanying background note on rates and the poor law.

2. According to its long title, the 1845 Act was passed “for better assessing and collecting the Poor Rates, Highway Rates, and Church Rates in the parish of Hemel Hempsted in the County of Hertford”.

3. The preamble to the 1845 Act recorded that the poor living in the parish of Hemel Hempsted “are numerous, and supported at a great Expence”. It also recorded that the existing laws for collecting the poor rates, highway rates, and church rates were inconvenient, ineffectual and unproductive. Accordingly the purpose of the 1845 Act was to tighten up the existing machinery for collecting these rates.

4. The 1845 Act provided as follows: (a) the owner of every dwelling house within the parish of which the annual rent or value is less than £10 should be liable to pay rates in respect of that dwelling house, instead of the actual occupier of it (section 1) (b) such owners could be rated at a discount in particular circumstances; meetings to be held annually by the overseers of the poor, the highways surveyor and the churchwardens to agree such arrangements; tenants and other occupiers were liable to pay any rates not paid by the landlord (up to the amount of the rent due) upon pain of having their goods distrained against (sections 2 to 4) (c) appeals by owners; overseers, highways surveyors or churchwardens authorised to correct errors and omissions; penalty for any tenant or occupier refusing to give the name of the owner; arrears of rates to be a

56 Hemel Hempstead (spelt in the 1845 Act as Hemel Hempsted) today falls within the local government area controlled by Dacorum Borough Council.

458 charge on the premises and recoverable by action for debt (sections 5 to 8) (d) justices authorised in particular circumstances to remit rates otherwise payable by an owner; apportionment of rates between owner and successor in cases where the owner sells the property having already paid the rates; liability for rates after property ceases to be unoccupied; Act not to affect any existing agreement between landlord and tenant; anyone receiving rent deemed to be the owner of the relevant premises (sections 9 to 13) (e) expenses of enactment; interpretation; status of Act (sections 14 to 16).

5. Although the system of parish-based poor and other rates supported by the 1845 Act has been obsolete for many years, the 1845 Act remains on the statute book to this day. So far as the poor rate is concerned the functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.57 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1845 Act has been superseded so far as the poor rate is concerned.

6. Moreover the 1845 Act is equally unnecessary in relation to the other rates that it covers. Compulsory church rates were abolished in 1868.58 And responsibility for the cost of maintaining the public highway has long ceased to fall to the parish.59

7. Since none of the parish rates covered by the 1845 Act exists today, the Act as a whole has become obsolete and may be repealed on that basis. Extent 8. The provisions proposed for repeal applied only to Hemel Hempstead in Hertfordshire.

57 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929. 58 Compulsory Church Rates Abolition Act 1868. 59 The parish remained the body responsible for highways until 1894, when section 25 of the Local Government Act 1894 transferred all the powers of the highway authority to the district council. The Act allowed the transfer of responsibility to be postponed for up to three years, but by the end of the 19th century, the parish was no longer involved in highway management. The cost of maintaining public highways is today governed by Part 4 of the Highways Act 1980.

459 Consultation 9. HM Treasury, the Department for Communities and Local Government, Hertfordshire County Council, Dacorum Borough Council, St Mary’s Church, Hemel Hempstead and the Local Government Association have been consulted about these repeal proposals.

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460 Reference Extent of repeal or revocation ______

8 & 9 Vict. c.cciv (1845) The whole Act. (Bristol Rates Act) ______

8 & 9 Vict. c.cciv (1845) (Bristol Rates Act) 1. This note proposes the repeal of an obsolete 1845 Act relating to the collection of rates in Bristol.

2. According to its long title, the single purpose of the 1845 Act was “for removing Doubts relating to the Collection of certain Portions of the Borough Rates of the City and County of Bristol”.

3. The preamble to the 1845 Act recorded that provisions in earlier legislation had cast doubt on the enforceability of borough rates ordered by Bristol City Council during 1843 and 1844.

4. The 1845 Act provided as follows: (a) the relevant borough rates ordered during 1843 and 1844 were declared to be valid as if made in accordance with existing legislation (section 1) (b) anyone who had already paid the rates under these orders should be given credit for that (section 2) (c) expenses of enactment; status of Act ( (sections 3 and 4).

5. The fact that the 1845 Act was concerned only with rates due in 1845 means that it has long been unnecessary. It may be repealed on that basis.

Extent 6. The provisions proposed for repeal applied only to the Bristol area.

Consultation 7. HM Treasury, the Department for Communities and Local Government, Bristol City Council and the Local Government Association have been consulted about these repeal proposals.

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461 Reference Extent of repeal or revocation ______

9 & 10 Vict. c.iii (1846) The whole Act. (Aylesbury and Walton Rates Act) ______

9 & 10 Vict. c.iii (1846) (Aylesbury and Walton Rates Act) 1. This note proposes the repeal of an obsolete 1846 Act relating to the collection of poor and other rates in Aylesbury and Walton in Buckinghamshire. The Act dates back to a time when local taxes were commonly raised on a parish basis. See the accompanying background note on rates and the poor law.

2. According to its long title, the 1846 Act was passed “for better assessing and collecting the Poor Rates, Lighting and Watching60 and Church Rates, in the parish of Aylesbury, and the Highways Rates in the Township of Aylesbury and Hamlet of Walton respectively, in the County of Buckingham”.

3. The preamble to the 1846 Act recorded that the Buckinghamshire parish of Aylesbury, comprising the township of Aylesbury and the hamlet of Walton, contained many small tenements, the “Rates imposed upon which for the Relief of the Poor and for other Purposes are rendered in a great measure unproductive, in consequence of the Inability of the Occupiers of such Tenements to pay the same”. The stated purpose of the 1846 Act was to make better provision for the rating of these small tenements and for the collection of the rates.

4. The 1846 Act provided as follows: (a) all owners (rather than occupiers) of buildings within the parish of Aylesbury of which the annual rent or value was less than £10 should be liable to pay rates for the relief of the poor, for lighting and watching, and for the repairs and services of the parish church (section 1) (b) all owners (rather than occupiers) of buildings within the township of Aylesbury or the hamlet of Walton of which the annual rent or value was

60 The Lighting and Watching Act 1833 (3 & 4 Will.4 c.90) enabled property owners in parishes in England and Wales to establish arrangements for lighting (ie gas or oil lamps in the streets) and watching (ie watchmen to prevent crime and breaches of the peace) in their parish. Inspectors would be appointed to give effect to these arrangements and they were empowered to order the parish overseers to levy rates to cover the costs incurred. The 1833 Act was adopted by many parishes and reflected the absence of proper policing arrangements (outside London) at that time. It was only in 1856 with the passing of the County and Borough Police Act (19 & 20 Vict. c.69) that all counties in England and Wales were required to establish proper police forces. The 1833 Act was finally repealed by the Parish Councils Act 1957, s 15(2), Sch 2 by which time the Act (at least the provisions in it concerning watching) had long been considered to be obsolete.

462 less than £10 should be liable to pay rates for the repair of the highways within the township or hamlet (section 1) (c) such owners could be rated at a discount in particular circumstances; meetings to be held annually to agree such arrangements; tenants and other occupiers were liable to pay any rates not paid by the owner/landlord (up to the amount of the rent due) upon pain of having their goods distrained against (sections 2 to 4) (d) appeals; correction of errors or omissions in rating lists; penalty for any tenant or occupier refusing to give the name of the owner; arrears of rates to be a charge on the premises and recoverable by distress (sections 5 to 8) (e) justices authorised in particular circumstances to remit rates otherwise payable by an owner; apportionment of rates between owner and successor in cases where the owner sells the property having already paid the rates; liability for rates after property ceases to be unoccupied; Act not to affect any existing agreement between landlord and tenant (sections 9 to 12) (f) expenses of enactment; interpretation; status of Act (sections 13 to 15).

5. Although the system of parish-based poor and other rates supported by the 1846 Act has been obsolete for many years, the 1846 Act remains on the statute book to this day. So far as the poor rate is concerned, the functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.61 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1846 Act has been superseded so far as the poor rate is concerned.

6. Moreover the 1846 Act is equally unnecessary in relation to the other rates that it covers. Compulsory church rates were abolished in 1868.62 Responsibility for the cost of maintaining the public highway has long ceased to fall to the parish.63

61 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929. 62 Compulsory Church Rates Abolition Act 1868. 63 The parish remained the body responsible for highways until 1894, when section 25 of the Local Government Act 1894 transferred all the powers of the highway authority to the district council. The Act allowed the transfer of responsibility to be postponed for up to three years, but by the end of the 19th

463 Similarly rates formerly levied at parish level for lighting and watching are now replaced by the arrangements for making, levying and collecting council tax under the Local Government Finance Act 1992.64

7. Since none of the parish rates covered by the 1846 Act exists today, the Act as a whole has become obsolete and may be repealed on that basis.

Extent 8. The provisions proposed for repeal applied in the Aylesbury area.

Consultation 9. HM Treasury, the Department for Communities and Local Government, Buckinghamshire County Council, Aylesbury Vale District Council, St Mary’s Church, Aylesbury and the Local Government Association have been consulted about these repeal proposals.

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century, the parish was no longer involved in highway management. The cost of maintaining public highways is today governed by Part 4 of the Highways Act 1980. 64 Urban street lighting in England outside London is today primarily the responsibility of district councils. Police expenditure is covered by means of precepts issued by police authorities under the Local Government Finance Act 1992, Part 1.

464 Reference Extent of repeal or revocation ______

Carshalton Rates Act 1846 The whole Act. (9 & 10 Vict. c.xlii) ______

Carshalton Rates Act 1846 (9 & 10 Vict. c.xlii) 1. This note proposes the repeal of an obsolete 1846 Act relating to the collection of rates in Carshalton, Surrey.65 See the accompanying background note on rates and the poor law.

2. According to its long title, the 1846 Act was passed “for the better and more effectual ascertaining, assessing, collecting, and levying the Poor Rate, and all other Rates and Assessments, in the Parish of Carshalton in the County of Surrey, and for the better Management of the Business and Affairs of the said Parish; and for other Purposes relating thereto”.

3. The preamble to the 1846 Act recorded that the poor living in the parish of Carshalton “are numerous, and supported at a great Expence”. It also recorded that the existing laws for collecting the poor and other rates were inconvenient and ineffective. Accordingly, the purpose of the 1846 Act was to tighten up the existing machinery for collecting these rates.

4. The 1846 Act provided as follows: (a) all owners (rather than occupiers) of premises within the parish of Carshalton of which the annual value did not exceed £18, or which were let on a weekly or monthly basis or which were let as separate apartments or with rent paid more often than quarterly, should be liable to pay the poor and other parish rates in respect of those premises (section 1) (b) such owners could be rated at a discount in particular circumstances; owners could be described as such in the rate books if their names were not known; surveyors could be appointed to estimate the annual value of all property; power to enter premises to assess their value; power to rectify errors in the rates (sections 2 to 6) (c) owners of premises were liable to pay rates once levied even if they then ceased to own the premises; anyone liable to pay rates who refused to

65 Carshalton today falls inside the London Borough of Sutton.

465 do so could be summoned before the county justices upon pain of having their goods distrained against; actions for non-payment of rates in cases where the owner was not a resident householder within the parish; apportionment of rates between successive owners (sections 7 to 10) (d) collector of rates authorised to distrain upon the goods of persons who left premises without paying due rates, with possible imprisonment if there were insufficient goods; tenants and other occupiers were liable to pay any rates not paid by the landlord (up to the amount of the rent due); Act not to affect any existing agreement between landlord and tenant; summons or warrant could name more than one person; goods could be distrained upon anywhere in Surrey (sections 11 to 16) (e) justices authorised in particular circumstances to remit rates otherwise payable by an owner; penalty for any occupier refusing to give the name and address of the owner; anyone receiving rent deemed to be the owner of the relevant premises; appeals (sections 17 to 22) (f) right to vote at vestry meetings to include appellants but not non- ratepayers; inhabitants of parish to appoint a vestry clerk and a collector of rates; appointment of deputy vestry clerk and collector; removal of collector and the giving of security by collector; collector to keep accounts and hand over moneys collected; penalties for collectors who failed in their duties (sections 23 to 32) (g) competence of inhabitants as witnesses; serving of summonses; penalties for non-appearance; costs and form of conviction; distress not to be invalidated by want of form; proceedings not to be challenged by certiorari; expenses of enactment; recovery of moneys lent upon the security of the rates; interpretation; documents to be stamped; short title; saving for powers of Poor Law Commissioners; status of Act (sections 33 to 48).

5. Although the system of parish-based poor relief supported by the 1846 Act has been obsolete for many years, the 1846 Act remains on the statute book to this day. The functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.66 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are

66 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929.

466 provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly the 1846 Act has been superseded and may be repealed on that basis.

Extent 6. The provisions proposed for repeal applied only in Carshalton, Surrey.

Consultation 7. HM Treasury, the Department for Communities and Local Government, the London Borough of Sutton, Surrey County Council and the Local Government Association have been consulted about these repeal proposals.

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467 Reference Extent of repeal or revocation ______

Ewell Rates Act 1847 The whole Act. (10 & 11 Vict. c.xlvi) ______

Ewell Rates Act 1847 (10 & 11 Vict. c.xlvi) 1. This note proposes the repeal of an obsolete 1847 Act relating to the collecting of rates in the parish of Ewell, Surrey.67 The Act dates back to a time when local taxes were commonly raised on a parish basis. See the accompanying background note on rates and the poor law.

2. According to its long title, the 1847 Act was passed “for better and more effectually ascertaining, assessing, collecting, and levying the Poor Rate and all other Rates and Assessments in the Parish of Ewell in the County of Surrey; and for the better Management of the Business and Affairs of the said Parish; and for other Purposes relating thereto”.

3. The preamble to the 1847 Act recorded that the poor living in the parish of Ewell “are numerous, and supported at a great Expence”. It also recorded that the existing laws for collecting the poor and other parish rates were inconvenient and ineffectual. Accordingly, the purpose of the 1847 Act was to tighten up the existing machinery for collecting these rates.

4. The 1847 Act provided as follows: (a) the owner (rather than the occupier) of every tenement in the parish of Ewell of which the rateable value did not exceed £9 should be liable to pay rates “for the relief of the Poor, for the Repairs and Services of the Church, for the Repairs of the Highways, and every other parochial and local Rate within the said Parish in respect of such Tenement” (section 1) (b) meetings to be held annually to agree arrangements whereby such owners could be rated at a discount in particular circumstances; actions for non-payment of rates and notice of such actions; anyone receiving rents deemed to be the owner of the relevant premises; penalty for any occupier refusing to give the name of the owner; provision for cases where name of owner was not known (sections 2 to 9)

67 Today Ewell falls within the area controlled by Epsom and Ewell Borough Council.

468 (c) owners of cottages or small houses converted into more than one dwelling house liable to be rated; existing tenants to reimburse landlords for rates paid by latter; tenants and other occupiers liable to pay any rates not paid by the landlord (up to the amount of the rent due); apportionment of liability as between successive owners; owner ratepayers entitled to vote at vestry meetings (sections 10 to 14) (d) rate books to be open for inspection; appeals; summonses may name more than one defendant; ratepayer justices of the peace not disqualified from hearing proceedings under this Act; appointment of vestry clerk; cost of enactment; interpretation; short title; amendments to, and status of, this Act (sections 15 to 25).

5. Although the system of parish-based poor and other rates supported by the 1847 Act has been obsolete for many years, the 1847 Act remains on the statute book to this day. So far as the poor rate is concerned, the functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.68 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1847 Act has been superseded so far as the poor rate is concerned.

6. Moreover, the 1847 Act is equally unnecessary in relation to the other rates that it covers. Compulsory church rates were abolished in 1868.69 And responsibility for the cost of maintaining the public highway has long ceased to fall to the parish.70

7. Since none of the parish rates covered by the 1847 Act exists today, the Act as a whole has become obsolete and may be repealed on that basis.

Extent 8. The provisions proposed for repeal applied only to Ewell, Surrey.

68 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929. 69 Compulsory Church Rates Abolition Act 1868. 70 The parish remained the body responsible for highways until 1894, when section 25 of the Local Government Act 1894 transferred all the powers of the highway authority to the district council. The Act allowed the transfer of responsibility to be postponed for up to three years, but by the end of the 19th century, the parish was no longer involved in highway management. The cost of maintaining public highways is today governed by Part 4 of the Highways Act 1980.

469 Consultation 9. HM Treasury, the Department for Communities and Local Government, Epsom and Ewell Borough Council, Surrey County Council and the Local Government Association have been consulted about these repeal proposals.

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470 Reference Extent of repeal or revocation ______

11 & 12 Vict. c.i (1848) The whole Act. (Kettering Rates Act) ______

11 & 12 Vict. c.i (1848) (Kettering Rates Act) 1. This note proposes the repeal of an obsolete 1848 Act relating to the collection of poor and other rates in Kettering, Northamptonshire. The Act dates back to a time when local taxes were commonly raised on a parish basis. See the accompanying background note on rates and the poor law.

2. According to its long title, the 1848 Act was passed “for better assessing and collecting the Poor Rates, Lighting, Watching, and Highway Rates, in the Parish of Kettering in the County of Northampton”.

3. The preamble to the 1848 Act recorded that the Northamptonshire parish of Kettering was “large and populous” and contained “a great Number of small Tenements, the Rates imposed upon which for the Relief of the Poor and for other Purposes are rendered in a great Measure unproductive in consequence of the Inability of the Occupiers of such Tenements to pay the same, and it is expedient therefore that better Provision should be made for the rating of such small Tenements, and for the collection of such Rates”. In other words, the purpose of the 1848 Act was to tighten up the existing machinery for collecting rates.

4. The 1848 Act provided as follows: (a) all owners (rather than occupiers) of premises within the parish of which the annual rent or value was less than £10 should be liable to pay rates for the relief of the poor, for lighting and watching,71 and for the repairs of the highways (section 1) (b) such owners could be rated at a discount in particular circumstances; meetings to be held annually to agree such arrangements; non-payment

71 The Lighting and Watching Act 1833 (3 & 4 Will.4 c.90) enabled property owners in parishes in England and Wales to establish arrangements for lighting (ie gas or oil lamps in the streets) and watching (ie watchmen to prevent crime and breaches of the peace) in their parish. Inspectors would be appointed to give effect to these arrangements and they were empowered to order the parish overseers to levy rates to cover the costs incurred. The 1833 Act was adopted by many parishes and reflected the absence of proper policing arrangements (outside London) at that time. It was only in 1856 with the passing of the County and Borough Police Act (19 & 20 Vict. c.69) that all counties in England and Wales were required to establish proper police forces. The 1833 Act was finally repealed by the Parish

471 of rates to be recovered by distress or civil action; notice of any such action (sections 2 to 6) (c) persons receiving rents were deemed to be the owners; penalty for any tenant or occupier refusing to give the name of the owner; description of owners whose names were not known; tenants to reimburse landlords in certain cases; tenants and other occupiers liability to pay any rates not paid by the owner/landlord (up to the amount of the rent due); apportionment of rates between successive owners (sections 7 to 12) (d) inspection of official rate books; appeals; summonses may include several defendants/premises; justices authorised in particular circumstances to remit rates otherwise payable (sections 13 to 16) (e) expenses of enactment; interpretation; status of Act (sections 17 to 19).

5. Although the system of parish-based poor and other rates supported by the 1848 Act has been obsolete for many years, the 1848 Act remains on the statute book to this day. So far as the poor rate is concerned, the functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.72 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1848 Act has been superseded so far as the poor rate is concerned.

6. Moreover, the 1848 Act is equally unnecessary in relation to the other rates that it covers. Responsibility for the cost of maintaining the public highway has long ceased to fall to the parish.73 Similarly rates formerly levied at parish level for lighting and watching are now replaced by the arrangements for making, levying and collecting council tax under the Local Government Finance Act 1992.74

Councils Act 1957, s 15(2), Sch 2 by which time the Act (at least the provisions in it concerning watching) had long been considered to be obsolete. 72 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929. 73 The parish remained the body responsible for highways until 1894, when section 25 of the Local Government Act 1894 transferred all the powers of the highway authority to the district council. The Act allowed the transfer of responsibility to be postponed for up to three years, but by the end of the 19th century, the parish was no longer involved in highway management. The cost of maintaining public highways is today governed by Part 4 of the Highways Act 1980.

472 7. Since none of the parish rates covered by the 1848 Act exists today, the Act as a whole has become obsolete and may be repealed on that basis.

Extent 8. The provisions proposed for repeal applied only in Kettering.

Consultation 9. HM Treasury, the Department for Communities and Local Government, Kettering Borough Council and the Local Government Association have been consulted about these repeal proposals.

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74 Urban street lighting in England outside London is today primarily the responsibility of district councils. Police expenditure is covered by means of precepts issued by police authorities under the Local Government Finance Act 1992, Part 1.

473 Reference Extent of repeal or revocation ______

West Bromwich Rates Act 1850 The whole Act. (13 & 14 Vict. c.iv) ______

West Bromwich Rates Act 1850 (13 & 14 Vict. c.iv) 1. This note proposes the repeal of an obsolete 1850 Act relating to the collection of poor and other rates in West Bromwich. The Act dates back to a time when local taxes were commonly raised on a parish basis. See the accompanying background note on rates and the poor law.

2. According to its long title, the 1850 Act was passed: for better assessing and collecting the Poor’s Rates, Highway Rates, the County, Shire Hall, Police and other County Rates in the Parish of West Bromwich in the County of Stafford, and the Township of Oldbury in the Parish of Hales Owen in the County of Worcester, and which Parish of West Bromwich and Township of Oldbury are situate within the West Bromwich Poor Law Union.75

3. The preamble to the 1850 Act recorded that the parish of West Bromwich and the township of Oldbury were both within the West Bromwich Poor Law Union76 and were “large and populous, and contain respectively a great Number of small Tenements, and the Poor belonging thereto are numerous, and supported at a great Expense; and in consequence of the Inability of the Occupiers of such Tenements to pay the Poor Rates, Highway Rates, the County, Shire Hall, Police and other County Rates thereupon imposed, the same are in great measure rendered unproductive; and it is expedient, therefore, that better Provision should be made in the rating of such small Tenements to such Several Rates, and for the levying and collecting of such Rates”.

4. In other words, the purpose of the 1850 Act was to tighten up the existing machinery for collecting the rates.

75 West Bromwich and Oldbury today fall within the West Midlands area governed by the Sandwell Metropolitan Borough Council. 76 The Poor Law (Amendment) Act 1834 created unions of parishes, each with their own board of guardians. Poor law unions were eventually abolished by the Local Government Act 1929.

474 5. The 1850 Act provided as follows: (a) all owners (rather than occupiers) of tenements within the parish of West Bromwich and the township of Oldbury of which the annual rateable value did not exceed £7 should be liable to pay the poor rate, highway rates, county, shire hall, police and other county rates; remedy of distress available in cases of non-payment (section 1) (b) procedure for bringing actions under the Act; service of notice before action; anyone receiving rents deemed to be the owner of the relevant premises; description of owners when unknown; owner’s liability for rates after ceasing to be the owner; liability for rates after premises cease to be unoccupied (sections 2 to 7) (c) penalty for any occupier refusing to give the name of the owner; tenants and other occupiers were liable to pay any rates not paid by the landlord (up to the amount of the rent due); owners could be rated at a discount in particular circumstances; justices authorised to remit rates otherwise payable by an owner (sections 8 to 11) (d) Act not to affect any existing agreement between landlord and tenant; tenant to reimburse landlord for rates paid in certain circumstances; special provision for rating of tenements converted into one or more dwelling-houses (sections 12 and 13) (e) summons could name more than one person or property; appeals; rate books to be open for inspection; rating officials authorised to inspect premises; correction of errors or omissions in rating lists; penalties for refusing to attend before any justice of the peace; manner of serving summonses; recovery of penalties (sections 14 to 21) (f) expenses of enactment; interpretation; short title; savings; status of Act (sections 22 to 26).

6. Although the system of parish-based poor and other rates supported by the 1850 Act has been obsolete for many years, the 1850 Act remains on the statute book to this day. So far as the poor rate is concerned, the functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.77 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government

77 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929.

475 Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1850 Act has been superseded so far as the poor rate is concerned.

7. Moreover the 1850 Act is equally unnecessary in relation to the other rates that it covers. Responsibility for the cost of maintaining the public highway has long ceased to fall to the parish.78 Similarly rates formerly levied at parish level for policing and county rates are now replaced by the arrangements for making, levying and collecting council tax under the Local Government Finance Act 1992.79

8. Since none of the rates covered by the 1850 Act exists today, the Act as a whole has become obsolete and may be repealed on that basis.

Extent 9. The provisions proposed for repeal applied to the areas of West Bromwich and Oldbury in the West Midlands.

Consultation 10. HM Treasury, the Department for Communities and Local Government, Sandwell Metropolitan Borough Council and the Local Government Association have been consulted about these repeal proposals.

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78 The parish remained the body responsible for highways until 1894, when section 25 of the Local Government Act 1894 transferred all the powers of the highway authority to the district council. The Act allowed the transfer of responsibility to be postponed for up to three years, but by the end of the 19th century, the parish was no longer involved in highway management. The cost of maintaining public highways is today governed by Part 4 of the Highways Act 1980. 79 Police expenditure is today covered by means of precepts issued by police authorities under the Local Government Finance Act 1992, Part 1.

476 Reference Extent of repeal or revocation ______

Stourbridge Union Rates Act 1850 The whole Act. (13 & 14 Vict. c.xlvi) ______

Stourbridge Union Rates Act 1850 (13 & 14 Vict. c.xlvi) 1. This note proposes the repeal of an obsolete 1850 Act relating to the collection of rates in the area of the Stourbridge Poor Law Union.80 See the accompanying background note on rates and the poor law.

2. According to its long title, this 1850 Act was passed: for better assessing and collecting the Poor Rates, Highway Rates, and other Parochial Rates, the County, Shirehall, Police and other County and local Rates, on small Tenements, in the several Parishes, Townships, and Hamlets of Stourbridge, Upper Swinford, Wollaston, the Lye, Woolescote, Cradley, the Borough of Halesowen, Hawn, Hasbury, Illy, Lutley, the Hill, Cakemore, Ridgacre, and Lapal, in the County of Worcester, and Kingswinford and Amblecote in the County of Stafford, situate within and forming the Stourbridge Poor Law Union.

3. The preamble to the 1850 Act recorded that the Stourbridge Poor Law Union,81 comprising the areas described in the long title, was “large and populous, and contains a great Number of small Tenements, and in consequence of the Inability of the Occupiers of such Tenements to pay the Poor Rates, Highway Rates, and other Parochial Rates, the County, Shirehall, Police and other County and local Rates thereupon imposed, the same are in a great measure rendered unproductive, and it is expedient, therefore that better Provision should be made for the rating of such small Tenements to such several Rates, and for the levying and collecting of such Rates”.

4. In other words, the purpose of the 1850 Act was to tighten up the existing machinery for collecting rates.

5. The 1850 Act provided as follows: (a) all owners (rather than occupiers) of tenements within the area of the Stour-bridge Poor Law Union of which the annual rateable value did not

80 Today Stourbridge falls within the area of the West Midlands governed by the Dudley Metropolitan Borough Council. 81 The Poor Law (Amendment) Act 1834 created unions of parishes, each with their own board of guardians. Poor Law Unions were eventually abolished by the Local Government Act 1929.

477 exceed £5 should be liable to pay the rates described in the preamble; penalty of distress in the event of non-payment (section 1) (b) persons receiving rents were deemed to the owners of the relevant premises; description of owners whose names were not known; liability for rates after change of ownership and after period of vacancy; penalty for any occupier refusing to give the name of the owner; tenants and other occupiers liable to pay any rates not paid by the owner/landlord (up to the amount of the rent due) (sections 2 to 7) (c) owners could be rated at a discount in particular circumstances; justices authorised to remit rates otherwise payable; Act not to affect existing agreements between landlord and tenant; exception for Lords of the Manor (sections 8 to 11) (d) tenants to reimburse landlords in certain cases; special provision for rating of tenements converted into one dwelling-house; summonses may include several defendants/premises; appeals; inspection of official rate books; correction of errors or omissions in rating lists; penalty for refusing to attend when summoned (sections 12 to 18) (e) expenses of enactment; interpretation; short title; status of Act (sections 19 to 22).

6. Although the system of parish-based poor and other rates supported by the 1850 Act has been obsolete for many years, the 1850 Act remains on the statute book to this day. So far as the poor rate is concerned, the functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927.82 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1850 Act has been superseded so far as the poor rate is concerned.

7. Moreover, the 1850 Act is equally unnecessary in relation to the other rates that it covers. Responsibility for the cost of maintaining the public highway has long ceased to fall to the parish.83 Similarly rates formerly levied at parish level for

82 Rating and Valuation Act 1925, ss 1(2), 68(1). The parish-run poor law system was abolished by the Local Government Act 1929. 83 The parish remained the body responsible for highways until 1894, when section 25 of the Local Government Act 1894 transferred all the powers of the highway authority to the district council. The Act

478 policing and county rates are now replaced by the arrangements for making, levying and collecting council tax under the Local Government Finance Act 1992.84

8. Since none of the rates covered by the 1850 Act exists today, the Act as a whole has become obsolete and may be repealed on that basis.

Extent 9. The provisions proposed for repeal applied to the area around Stourbridge in the West Midlands.

Consultation 10. HM Treasury, the Department for Communities and Local Government, Dudley Metropolitan Borough Council and the Local Government Association have been consulted about these repeal proposals.

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allowed the transfer of responsibility to be postponed for up to three years, but by the end of the 19th century, the parish was no longer involved in highway management. The cost of maintaining public highways is today governed by Part 4 of the Highways Act 1980. 84 Police expenditure is today covered by means of precepts issued by police authorities under the Local Government Finance Act 1992, Part 1.

479 Reference Extent of repeal or revocation ______

Leeds Overseers Act 1860 The whole Act. (23 & 24 Vict. c.cxxxii) ______

Leeds Overseers Act 1860 (23 & 24 Vict. c.cxxxii) 1. This note proposes the repeal of an obsolete 1860 Act relating to overseers of the poor and the collection of poor rates in Leeds. See the accompanying background note on rates and the poor law.

2. Overseers dated from Elizabethan times when the parish was established as the administrative unit in England responsible for providing relief for the poor, the aged and the helpless.85 Overseers were appointed in each parish to collect poor rates from the inhabitants and then allocate relief, usually in the form of bread, clothing, fuel, the payment of rent, or cash. After 1834, many parishes grouped themselves together into unions, each with its own board of guardians.86

3. According to its long title, this 1860 Act was passed: to provide for Alterations in the Appointment of Overseers, Collectors, and other Poor Law Officers in the Township of Leeds; for the Incorporation of Overseers for specific Purposes; and for the levying and Collection of Poor Rates in that Township; and for other Purposes.

4. The preamble to the 1860 Act recorded that the township of Leeds was “very populous”, that its parochial affairs were under the management of a board of guardians and of overseers of the poor, and that further powers should be given to the overseers concerning the collection of rates.

5. The 1860 Act provided as follows: (a) short title; application of Act confined to Leeds; interpretation (sections 1 to 4) (b) Leeds justices of the peace were authorised to appoint overseers of the poor who would be incorporated and known as the “Board of Overseers of Leeds”; constitution and powers of the Board, including the appointment of clerks, collectors and other officers (sections 5 and 6)

85 43 Eliz.1 c.2 (1601). 86 This was enabled by the Poor Law (Amendment) Act 1834.

480 (c) tenure of office of officers, clerks, collectors etc; arrangements for suspending or substituting them (sections 7 to 9) (d) appointment of replacement overseers by two justices of the peace; delivery of accounts by replaced overseers (section 10)87 (e) rating of unoccupied premises; anyone receiving rents deemed to be the owner of the relevant premises; description of owner when unknown; power of overseers to amend rates and prepare lists of newly-erected premises (sections 11 to 15) (f) service of summons for non-payment of rates; authentication of notices; expenses of enactment (sections 16 to 18).

6. Although the system of parish-based poor relief supported by the 1860 Act has been obsolete for many years, the 1860 Act remains on the statute book to this day. The functions of making, levying and collecting of parish poor rates outside London were transferred from the parish overseers to rating authorities in 1927, and the ancient office of parish overseer was abolished at the same time.88 Thereafter the poor-rate became part of the consolidated general rate for each area. Today the arrangements for making, levying and collection of local taxation are provided by the Local Government Finance Acts 1988 and 1992. Part 3 of the 1988 Act relates to non-domestic rating whilst the 1992 Act provides for the council tax. Accordingly, the 1860 Act has been superseded and may be repealed on that basis.

Extent 7. The provisions proposed for repeal applied only to Leeds.

Consultation 8. HM Treasury, the Department for Communities and Local Government, Leeds City Council and the Local Government Association have been consulted about these repeal proposals.

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87 Section 10 was amended to transfer the power of appointing replacement overseers to Leeds City Council: Leeds Corporation Act 1924 (14 & 15 Geo.5 c.lxxxix), s 24(6). 88 Rating and Valuation Act 1925, ss 1(2), 62(1)(2), 68(1); Overseers Order 1927, SR&O 1927 No 55. The parish-run poor law system was abolished by the Local Government Act 1929 which, coming into force on 1 April 1930, abolished poor law unions and their boards of guardians.

481 Reference Extent of repeal or revocation ______

Rating and Valuation The whole Act. (Miscellaneous Provisions) Act 1955 (4 & 5 Eliz.2 c.9) ______

Rating and Valuation (Miscellaneous Provisions) Act 1955 1. According to its long title, the purpose of the Rating and Valuation (Miscellaneous Provisions) Act 1955 (“the 1955 Act”) was “to amend the law as respects rating and valuation for rating, and for purposes connected therewith”.

2. Virtually the whole of the 1955 Act has been repealed already. Indeed, the General Rate Act 1967 repealed the 1955 Act as a whole other than sections 11 and 17.89 Section 11 was repealed by the Water Act 1989.90 The only provisions remaining unrepealed in section 17 are subsections (1) (short title) and (5) (extent).91

3. There being no substantive provisions remaining in force, the whole of the 1955 Act may now be formally repealed as being unnecessary.

Extent 4. The provisions proposed for repeal extended only to England and Wales.

Consultation 5. The Department for Communities and Local Government, the Local Government Association, the Welsh Local Government Association and the relevant authorities in Wales have been consulted about these repeal proposals.

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89 The 1967 Act, s 117(1), Sch 14, Pt 1. 90 The 1989 Act, s 190(3), Sch 27, Pt 2. 91 Section 17(2) was repealed by Local Government Act 1958, s 67, Sch 9, Pt 5; section 17(3) was repealed by Local Government Act 1966, s 38(3), Sch 4, para 28(3)(d); section 17(4) was repealed by Statute Law (Repeals) Act 1975, s 1(1), Sch, Pt 14.

482 Reference Extent of repeal or revocation ______

Rates Act 1984 (c.33) The whole Act. ______

Rates Act 1984

1. According to its long title, the purpose of the Rates Act 1984 (“the 1984 Act”) was: to enable the Secretary of State to limit the rates made and precepts issued by local authorities; to require local authorities to consult representatives of industrial and commercial ratepayers before reaching decisions on expenditure and the means of financing it; to make provision for requiring additional information to be given to ratepayers; to require notice of the rates payable in respect of a dwelling-house to be given to any occupier not in receipt of a demand note; and to make other amendments relating to rates.

2. The 1984 Act was an attempt by the Government to protect individuals and businesses from the effects of excessive spending on the part of some local authorities who recouped their costs by increased local taxation on those individuals and businesses. Part 1 of the 1984 Act empowered the Secretary of State to set a maximum rate for any designated local authority in any given financial year. Part 2 empowered the Secretary of State to control the rates in respect of all local authorities.92 The only unrepealed substantive provision in Part 3 is section 14 which provides for rating authorities to provide ratepayers with information about past or proposed expenditure. Part 4 contains supplementary provisions. Schedules 1 and 2 have already been repealed.93

3. The 1984 Act was based on the system of rating as it existed under the General Rate Act 1967 and became obsolete in 1990 once the 1967 Act had been repealed. The 1967 Act was repealed by the Local Government Finance Act 1988,94 which replaced the old rating system with a new local taxation system.95 The modern equivalent of rating on domestic property is the council tax, and provisions limiting

92 The principal provisions of Part 2 (sections 10 and 11) have never been brought into force. 93 Local Government Finance (Repeals, Savings and Consequential Amendments) Order 1990, SI 1990/776, art 3(1), (2), Sch 1. The only unrepealed substantive provisions in these two Schedules are paragraphs 23 and 24 of Schedule 1. Paragraph 23 substituted s 59(11)(c) of the Local Government, Planning and Land Act 1980 but became spent when the substituted provision was repealed by the Statute Law (Repeals) Act 2004, s 1(1), Sch 1, Pt 10, Group 2. Paragraph 24 inserted section 3(9) and (10) into the Local Government Finance Act 1982. However, since section 3(9) and (10) related to rates and precepts arising under the General Rate Act 1967, paragraph 24 became obsolete following the repeal of the 1967 Act. 94 The 1988 Act, ss 117(1), 149, Sch 13, Pt 1. 95 The Local Government Finance Act 1988 created a non-domestic rating system and abolished rating in relation to domestic property, replacing it with the community charge. The community charge was

483 the amount of council tax chargeable by local authorities are contained in the Local Government Finance Act 1992.96 It follows that the 1984 Act no longer serves any useful purpose and may be repealed on that basis.

Extent 4. The provisions proposed for repeal extended only to England and Wales.

Consultation 5. HM Treasury, the Department for Communities and Local Government, the Local Government Association, the Welsh Local Government Association and the relevant authorities in Wales and Scotland have been consulted about these repeal proposals.

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itself abolished and replaced by the council tax with effect from 1 April 1993: Local Government Finance Act 1992, Pt 1. 96 The 1992 Act, ss 52A to 52Z.

484 PART 8

TAX AND DUTIES

______

Reference Extent of repeal or revocation ______

Hull Dues Act 1852 The whole Act. (15 & 16 Vict. c.cxxxvi) ______

Hull Dues Act 1952

1. The purpose of the Hull Dues Act 1852 (“the 1852 Act”) was to authorise the reduction or abolition of tolls, charges and other dues payable to Kingston-upon-Hull Corporation1 (“the Corporation”), the Hull Dock Company2 and the Hull Trinity House.3

Background 2. The need to reduce or abolish tolls, charges and other dues (referred to in this note collectively as “the Dues”) arose from competitive pressure from other ports in the area. As the preamble to the 1852 Act explained- …other Ports on the Eastern Coast of England now compete with the Port of Hull, and it has become desirable that the Rates, Dues, and other Charges on Shipping resorting to and on Goods imported into and exported from the Port of Hull should be reduced, in order that the Trade and Commerce of the said Port may be successfully maintained…

3. The Dues affected were as follows- ♦ town dues charged by the Corporation (i.e. tolls known as toll thorough, toll traverse, bridge toll, cart toll, market toll and corn toll)

♦ river dues charged by the Corporation (i.e. import dues, export dues, water bailiff dues, anchorage dues, jettage dues, hostage dues and ballast dues)4

1 Now the Hull City Council. 2 The Hull Dock Company subsequently amalgamated with the North Eastern Railway Company pursuant to the North Eastern Railway (Hull Docks) Act 1893 and was dissolved by that Act on 1 July 1893. 3 The Trinity House of Kingston-upon-Hull, which is distinct from the “Trinity House” referred to in maritime legislation, was instituted in 1369 and was incorporated by Royal Charter in 1457 as the “Guild of brotherhood of masters and pilots-seamen of the Trinity House of Kingston-upon-Hull.” Among other important powers, the Hull Trinity House was entitled to levy duties on river users. The duties collected were used for the relief of poor mariners.

485 ♦ shipping dues charged by the Hull Dock Company known as tonnage rates and wharfage rates 5

♦ dues known as primage charged by the Hull Trinity House on goods imported into, and exported from, the port of Hull.6

Effect of the 1852 Act 4. The preamble to the 1852 Act recited the agreement of the Corporation, the Hull Dock Company and the Hull Trinity House to reduce the level of the Dues in order to maintain the port of Hull’s competitive trading position. This agreement was given effect to in the 1852 Act which authorised-

♦ the Corporation (with Treasury approval) to modify, reduce or abolish all or any of the town dues (section 3)

♦ the Corporation (with Treasury approval) to modify, reduce or abolish all or any of the river dues (section 5)

♦ the Corporation (with Treasury approval), Hull Trinity House (with court approval) and the Hull Dock Company to enter into any agreement to reduce any of the port-based charges by reducing or abolishing any of the Dues (section 10).

5. The remaining provisions in the 1852 Act were ancillary to sections 3, 5 and 10 and served no independent purpose. In particular, section 6 empowered the Board of Trade to issue a certificate of reduction of water bailiff dues; and sections 11, 14, 15, and

4 Humber Conservancy Act 1907 (7 Edw.7 c.xcvii), s 67 provided that the Corporation should cease to levy water bailiffs dues or any other dues of anchorage or jettage or other dues in respect of vessels passing through or anchoring in the River Humber; and that such dues were abolished. 5 After 1861, the Hull Dock Company was required to levy tonnage in accordance with section 27 of the Harbours, Docks and Piers Clauses Act 1847: Hull Docks Act 1861, s 107. Wharfage was to be charged to a maximum of two thirds of the rates detailed in section 197 of, and Schedule G to, the Kingston-upon-Hull Dock Act 1844; Hull Docks Act 1861, s 109. The 1947 Act was incorporated into the Associated British Ports (Hull) Act 1989 (which is the current governing instrument for the Port of Hull). 6 Since 1861, however, the Hull Trinity House has no longer been able to charge primage: see Harbours and Passing Tolls etc Act 1861, ss 6, 7, Sch 1.

486 16 were savings provisions drafted to preserve the existing rights of the Corporation, the Hull Dock Company and Hull Trinity House.

Present status of the 1852 Act 6. Although the 1852 Act has never been repealed, it has no continuing relevance today. As its preamble clearly states, the 1852 Act was designed to provide a legal basis for agreements reached between the Corporation, the Hull Dock Company and the Hull Trinity House. In the interests of maintaining Hull’s trading edge in the mid- nineteenth century, each party agreed to reduce the part or parts of the Dues to which it was entitled if the other parties did likewise. In other words, the 1852 Act was intended to provide a temporary legal solution to the changing economic conditions of the 1850s. The 1852 Act is now unnecessary and its repeal is now proposed on that basis.

7. Today the port of Hull is managed by Humber Estuary Services,7 a division of Associated British Ports which has owned and managed the port of Hull since 1962 when it existed as the British Transport Docks Board. The Board was reconstituted in 1982 as Associated British Ports Holdings plc pursuant to Part 2 of the Transport Act 1981. Its authority to levy charges on river users does not depend on the 1852 Act.8

8. In any event it is clear from the savings provisions in sections 14 to 16 that the 1852 Act was not intended to affect the rights of the Corporation, the Hull Dock Company or the Hull Trinity House except as expressly provided by the 1852 Act. Accordingly the repeal of the 1852 Act will not affect in any way such continuing rights as there are to charge all or any of the Dues.

Extent 9. The 1852 Act extended to the Kingston-upon- Hull area only.

Consultation 10. HM Treasury, HM Revenue and Customs (in respect of import and export dues formerly chargeable), the Department of Trade and Industry, the Department for

7 Associated British Ports is the Competent Harbour Authority, the Conservancy and Navigation Authority, and the Lighthouse Authority for the Humber estuary. 8 Pilotage charges are levied under the Pilotage Act 1987, s 10. Other charges (including vessel registration charges and conservancy dues) are levied under the Humber Conservancy Acts 1852 to 1951.

487 Transport, the Charity Commission, Hull City Council, Hull Trinity House and Associated British Ports Holdings plc have been consulted about these repeal proposals.

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488 Reference Extent of repeal or revocation ______

Customs, Inland Revenue, and The whole Act (except as it Savings Banks Act 1877 extends to Scotland). (40 & 41 Vict. c.13)

______

Customs, Inland Revenue, and Savings Banks Act 1877 1. According to its long title, the purpose of the Customs, Inland Revenue, and Savings Banks Act 1877 (“the 1877 Act”) was ‘to grant certain Duties of Customs and Inland Revenue, and to amend the Laws relating to Customs, Inland Revenue, and Savings Banks’. Today only one substantive provision remains in force and it does so in Scotland only. Accordingly the whole Act may now be repealed except as it extends to Scotland.

2. The various provisions of the 1877 Act have been repealed as follows- ♦ sections 2, 6-9, 13, Schedule B (Statute Law Revision Act 1883) ♦ sections 3, 5, 10, Schedule A (Customs and Excise Act 19529) ♦ section 4 (Public Authorities Protection Act 189310) ♦ section 11 (Spirits Act 188011) ♦ sections 14, 17 (Post Office Savings Bank Act 195412) ♦ section 15 (Trustee Savings Banks Act 195413) ♦ section 16 (Industrial Assurance and Friendly Societies Act 194814).

3. Today the only provision in the 1877 Act that remains in force (other than the short title in section 1) is section 12 which (as amended15) provides-

Transmission and custody of inventories in Scotland To the extent that the Registrar, Capital Taxes Office at Edinburgh may require, inventories of the personal or movable estate and effects of deceased persons

9 The 1952 Act, s 320, Sch 12, Pt 1. 10 The 1893 Act, s 2. 11 The 1880 Act, s 164. Sch 5. 12 The 1954 Act, s 26(1), Sch; Trustee Savings Banks Act 1954, s 82(1), Sch 3. 13 The Trustee Savings Bank Act 1954, s 82(1), Sch 3. 14 The 1948 Act, s 19(4)(b), Sch 6 Pt 1. 15 See Finance Act 1980, s 94(7), Sch 20, Pt 11, Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, ss 9, 28(2), Sch 3.

489 which shall be exhibited and recorded in Scotland, under the provisions of any Act of Parliament, shall, together with the oath or affirmation relating thereto, be transmitted by the commissary clerks or the sheriff clerks to the Registrar, Capital Taxes Office at Edinburgh; and all enactments relating to any such inventories shall be read as if the officer to or with whom inventories are thereby directed to be transmitted or lodged were the Registrar, Capital Taxes Office at Edinburgh.

4. The effect of section 12 is to-

(a) empower the transmission to the Capital Taxes Office in Edinburgh of inventories of the personal or movable estate of deceased persons by commissary clerks or sheriff clerks; and

(b) construe earlier documents.

5. Clearly the 1877 Act can today have effect only in Scotland. HM Revenue and Customs in Edinburgh have confirmed that section 12 is still required. Accordingly the repeal of the whole Act is proposed except, because of section 12, in relation to Scotland.

Extent 6. The 1877 Act originally extended throughout the United Kingdom but today has effect only in Scotland.

Consultation 7. HM Treasury, HM Revenue and Customs (including the Capital Taxes Office in Edinburgh) and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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490 Reference Extent of repeal or revocation ______

Customs and Inland Revenue Act 1879 The whole Act. (42 & 43 Vict. c.21)

Customs and Excise Management In Schedule 4, in paragraph Act 1979 (c.2) 12, the entry in Part 1 of the Table relating to the Customs and Inland Revenue Act 1879.

______

Customs and Inland Revenue Act 1879

1. The purposes of the Customs and Inland Revenue Act 1879 (“the 1879 Act”) included amending the existing laws relating to customs duties and taxation. It also prohibited the import of certain goods.

2. The 1879 Act has been extensively repealed over the years to the point where the only unrepealed provision (apart from the short title) is section 5 (prohibitions and restrictions).

3. As originally enacted, section 5 provided as follows- “In addition to the several goods enumerated and described in section forty-two of the Customs Consolidation Act, 1876, as thereby prohibited and restricted there shall be read and construed therewith the following: All articles bearing or having affixed to them any stamp, name, writing, or other device implying or tending to imply any sanction or guarantee by the Customs or by any other department of the Government.”. (italics added)

4. Section 5 was shortened by the Customs and Excise Management Act 1979 (“the 1979 Act”). For the words in italics was substituted: “The importation of the following goods is prohibited, that is to say”.16

5. The 1879 Act now serves no purpose except to keep in force the import prohibition contained in section 5. A more appropriate place for this prohibition would be the Customs Consolidation Act 1876 (“the 1876 Act”), section 42 of which (prohibitions and restrictions) already contains a table of ‘goods prohibited to be imported’. Indeed section 5, as originally enacted, expressed itself to be adding to the list of goods set out

16 The 1979 Act, s 177(1), Sch 4, para 12, Table, Pt 1.

491 in section 42. This re-siting of section 5 may be achieved by the entry in the attached Schedule of consequential and connected provisions, and will permit the whole of the 1879 Act to be repealed.

6. Consequential upon the repeal of the 1879 Act will be the repeal of the provision in the 1979 Act that substituted the opening words of section 5.

Extent 7. Section 5 of the 1879 Act extends throughout the United Kingdom.

Consultation 8. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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492 SCHEDULE OF CONSEQUENTIAL AND CONNECTED PROVISIONS

Customs Consolidation Act 1876 (c.36)

. In section 42 of the Customs Consolidation Act 1876 (prohibitions and restrictions), in the Table of prohibitions and restrictions inwards, insert as the first entry under the heading “Goods prohibited to be imported”- “All articles bearing or having affixed to them any stamp, name, writing, or other device implying or tending to imply any sanction or guarantee by the Customs or by any other Department of the Government.”.

493 Reference Extent of repeal or revocation ______

Stamp Act 1891 Section 25. (54 & 55 Vict. c.39) Section 49. Section 111. Section 120. In section 122(1), the words “The expression “steward”” to the end.

______

Stamp Act 1891

1. The Stamp Act 1891 (“the 1891 Act”) consolidated the existing statutory law relating to stamp duties. Several provisions of this Act have since become obsolete.

2. Section 25 (meaning of instrument of apprenticeship) is an obsolete interpretative provision. It deems certain written documentation relating to the service or tuition of apprentices, clerks and servants to be instruments of apprenticeship for the purposes of Schedule 1 to the 1891 Act, which imposed stamp duty (2s 6d) on instruments of apprenticeship. However the Finance Act 1949 exempted instruments of apprenticeship from stamp duty17 and repealed the relevant entry in Schedule 1 to the 1891 Act.18 Section 25 is accordingly now obsolete and may be repealed.

3. Section 49 is similarly obsolete. It defines ‘charter-party’ for the purposes of sections 50 and 51 of, and Schedule 1 to, the 1891 Act. However the Finance Act 1949 exempted charter-parties from stamp duty19 and repealed sections 50 and 51 of, and the relevant entry in Schedule 1 to, the 1891 Act.20 Section 49 is accordingly now obsolete and may be repealed.

4. Section 111 is also obsolete. Section 111(1) defines ‘warrant for goods’ for the purposes of Schedule 1 to the 1891 Act. However the Finance Act 1949 exempted warrants for goods from stamp duty21 and repealed not only the rest of section 111 but

17 The 1949 Act, s 35(1), Sch 8, Pt 1, para 4. 18 The 1949 Act, s 52(10), Sch 11, Pt 5. 19 The 1949 Act, s 35(1), Sch 8, Pt 1, para 9. 20 The 1949 Act, s 52(10), Sch 11, Pt 5. 21 The 1949 Act, s 35(1), Sch 8, Pt 1, para 27.

494 also the relevant entry in Schedule 1 to the 1891 Act.22 Section 111 is accordingly now obsolete and may be repealed.

5. Section 120 (instruments charged with duty of 35 shillings/£1.75) (as originally enacted) provided as follows–

Any instrument which by any Act passed before the first day of January one thousand eight hundred and seventy-one and not relating to stamp duties, is specifically charged with the duty of thirty-five shillings, shall be chargeable only with the duty of ten shillings in lieu of the said duty of thirty-five shillings.

6. The only amendment to section 120 since 1891 has been the substitution of £1.75 for 35 shillings and 50p for ten shillings.23

7. Section 120 derives from section 4 of the Stamp Act 1870 and was carried forward into the consolidating 1891 Act (which repealed section 424). The purpose of section 4 seems to have been to reduce stamp duty for a limited range of instruments such as a company’s memorandum of association.25 It seems unlikely, however, that there remain any statutory provisions upon which section 120 can operate. Indeed this is the view taken by textbook writers.26 On the basis that section 120 serves no useful modern purpose its repeal is now recommended.

8. Section 122 defines expressions used in the 1891 Act. The definition in subsection (1) of steward of a manor as including a deputy steward refers to the original provisions of the 1891 Act concerning copyhold and customary estates. These provisions, contained within sections 65 to 68, were repealed in 1949, thereby rendering the definition of steward obsolete.27

22 The 1949 Act, s 52(10), Sch 11, Pt 5. 23 By virtue of Decimal Currency Act 1969, s 10(1). 24 The 1891 Act, s 123, Sch 3. 25 Piper’s Stamp Laws and Duties (1912) gives this instrument as an example. Companies Act 1862, s 11 (repealed) provided for a company’s memorandum of association ‘to bear the same stamp as if it were a deed’. 26 See for example Sergeant and Sims on Stamp Duties (current loose-leaf edition) which describes section 120 as spent (Division B/27). The Law of Stamp Duties (Alpe) (25th edition, 1960) describes section 120 as appearing ‘to be a dead letter’ (page 12). 27 Finance Act 1949, s 52(9), (10), Sch 11, Pt 5; Finance Act (Northern Ireland) 1949, s 16, Sch 4, Pt 2.

495 Extent 9. The 1891 Act extends throughout the United Kingdom, although most of the provisions proposed for repeal have already been repealed in relation to Northern Ireland.28

Consultation 10. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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28 Finance Act (Northern Ireland) 1949, s 16, Sch 4, Pt 2 (in relation to sections 49 and 111); Statute Law Revision Act (Northern Ireland) 1954 (in relation to the section 122 proposal).

496 Reference Extent of repeal or revocation ______

Finance Act 1902 The whole Act. (2 Edw.7 c.7) ______

Finance Act 1902

1. The purposes of the Finance Act 1902 (“the 1902 Act”) included amending section 10 of the Finance Act 1901 (“the 1901 Act”).

2. The 1902 Act has been extensively repealed over the years to the point where the only unrepealed provision (apart from the short title) is section 7 (amendment of section 10 of the 1901 Act).

3. Section 7 provides as follows- Section ten of the Finance Act, 1901, applies although the goods have undergone a process of manufacture or preparation, or have become a part or ingredient of other goods.

4. The 1902 Act now serves no purpose except to keep in force the amendment made to the 1901 Act by section 7. The effect of section 7 may conveniently be preserved by the entry in the attached Schedule of consequential and connected provisions. This will supersede section 7 and enable the whole of the 1902 Act to be repealed.

Extent 5. Section 7 of the 1902 Act extends throughout the United Kingdom.

Consultation 6. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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497 SCHEDULE OF CONSEQUENTIAL AND CONNECTED PROVISIONS

Finance Act 1901 (c.7)

. In section 10 of the Finance Act 1901 (addition or deduction of new or altered duties in the case of contract), after subsection (3) insert-

“(3A) This section applies whether or not the goods have undergone a process of manufacture or preparation, or have become a part or ingredient of other goods.”.

498 Reference Extent of repeal or revocation ______

Finance Act 1911 The whole Act. (1 & 2 Geo.5 c.48) ______

Finance Act 1911

1. The Finance Act 1911 (“the 1911 Act”) amended the existing law in relation to a range of taxes including stamp duty, income tax and death duties. Although every provision in the 1911 Act, other than the short title, has now been repealed, the Act as a whole has never been formally repealed.

2. The various provisions of the 1911 Act have been repealed as follows-

♦ preamble, sections 1, 14, 22(1), Schedule (Statute Law Revision Act 1927) sections 2 -10 (Customs and Excise Act 195229) ♦ sections 11, 12 (Finance Act 192030) ♦ section 13 (Finance Act 196331) ♦ section 15 (Finance Act 192432) ♦ section 16 (Statute Law Revision Act 1959) ♦ section 17 (Finance Act 194233) ♦ section 18 (Finance Act 1975, subject to saving34) ♦ section 19 (Finance Act 191235) ♦ section 20 (Post Office Act 196936) ♦ sections 21, 22(2) (Statute Law (Repeals) Act 197337).

3. Today the only provision in the 1911 Act that remains in force is section 22(3) (the short title). On the face of it, therefore, the whole of the 1911 Act may now be

29 The 1952 Act, s 320, Sch 12, Pt 1. 30 The 1920 Act, s 64(3), Sch 4. 31 The 1963 Act, s 73(8)(b), Sch 11, Pt 4. 32 The 1924 Act, ss 20, 41, Sch 3. 33 The 1942 Act, s 47, Sch 11, Pt 3. 34 The 1975 Act, ss 50, 52(2)(3), 59, Sch 13, Pt 1. 35 The 1912 Act, s 9. 36 The 1969 Act, s 141, Sch 11, Pt 2. 37 The 1973 Act, s 1(1), Sch 1, Pt 13.

499 formally repealed. Since, however, section 18 was repealed subject to a saving, the continuing need for this saving should be reviewed.

4. Section 18 provided as follows- It is hereby declared that, in estimating for the purposes of subsection (5) of section 7 of the Finance Act 189438, the principal value of any agricultural property which comprises cottages occupied by persons employed solely for agricultural purposes in connexion with the property, no account shall be taken of any value attributable to the fact that the cottage is suitable for residential purposes of any persons other than agricultural labourers or workmen on the estate.

5. Section 18 was repealed by section 52(2) of the Finance Act 1975 subject to the saving that the repeal took effect only “in relation to deaths occurring after the passing of this Act”.39 The repeal formed part of the overall scheme of the Finance Act 1975 whereby capital transfer tax replaced estate duty as the principal vehicle for taxing the estates of deceased persons in respect of deaths occurring after 12 March 1975.40 HM Treasury and HM Revenue and Customs have confirmed that section 18 of the 1911 Act no longer continues to serve any useful purpose in calculating the value of agricultural property in old estate duty cases.

6. Accordingly, since section 18 is now unnecessary, the 1911 Act may now be removed from the statute book by means of formal repeal.

Extent 7. The 1911 Act extended throughout the United Kingdom.

38 Section 7(5) of the Finance Act 1894 provided as follows- “The principal value of any property [i.e. for the purpose of charging estate duty] shall be estimated to be the price which, in the opinion of the Commissioners, such property would fetch if sold in the open market at the time of the death of the deceased; Provided that, in the case of any agricultural property, where no part of the principal value is due to the expectation of an increased income from such property, the principal value shall not exceed twenty-five times the annual value as assessed under Schedule A of the Income Tax Acts after making such deductions as have not been allowed in that assessment and are allowed under the Succession Duty Act 1853, and making a deduction for the expenses of management not exceeding five per cent of the annual value so assessed.” 39 The 1975 Act, s 52(2)(a). The 1975 Act was passed on 13 March 1975. 40 As from 25 July 1986 capital transfer tax became known as inheritance tax: Finance Act 1986, s 100.

500 Consultation 8. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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501 Reference Extent of repeal or revocation ______

Finance Act 1923 The whole Act. (13 & 14 Geo.5 c.14) ______

Finance Act 1923 1. The purposes of the Finance Act 1923 (“the 1923 Act”) included making provisions about income tax and death duties.

2. The whole of the 1923 Act (other than ancillary provisions in section 39) has already been repealed.41 The purpose of this note is to indicate that the savings attached to certain of these repeals are now unnecessary with the result that the 1923 Act may now be repealed outright without the savings.

3. Part 2 of the 1923 Act (income tax and inhabited house duty) comprised sections 14 to 31 which provided as follows- ♦ section 14 (the rate of income tax and super-tax for 1923-24) ♦ section 15 (new scale of annual values for purposes of inhabited house duty42) ♦ section 16 (amendments as to income tax on assurance companies) ♦ section 17 (income tax on leave pay etc to be chargeable under Schedule E) ♦ section 18 (provision as to relief from double taxation on profits from the business of shipping) ♦ section 19 (exemption from income tax of salaries of High Commissioners, Agents-General and their staffs) ♦ section 20 (relief from super-tax43 in respect of establishment of Irish Free State)

41 Sections 1, 4, 6, 7, 36, 38, 39 (part), Sch repealed by Statute Law Revision Act 1950; ss 2, 3, 8 repealed by Customs and Excise Act 1952, s 320, Sch 12, Pt 1; ss 5, 9 repealed by Finance Act 1924, s 41, Sch 3; ss 10, 32 repealed by Finance Act 1928, s 35, Sch 5; ss 11, 12, 39 (part) repealed by Finance Act 1957, s 42(5), Sch 9, Pt 1; s 13 repealed by Statute Law (Repeals) Act 1977, s 1(1), Sch 1, Pt 10; ss 14-31 repealed by Income Tax Act 1952, ss 527, 529(5), Sch 25; s 33 repealed by National Debt Act 1958, s 17(1), Sch; s 34 repealed by Statute Law Revision Act 1959; ss 35, 39 (part) repealed by Statute Law Revision Act 1953; s 37 repealed by Finance Act 1949, s 52(9), (10), Sch 11, Pt 4. 42 Inhabited house duty was a tax assessed on the rents or letting value of houses between 1808 and 1924. It was abolished by Finance Act 1924, s 20. 43 Super-tax was an additional tax on income. Introduced by Finance (1909-10) Act 1910, s 66, it was abolished with effect from tax year 1929-30 by Finance Act 1927, s 38(1). It was replaced by surtax.

502 ♦ section 21 (exemption for charities in Irish Free State in respect of tax for 1923-24) ♦ section 22 (exemption from income tax for 1923-24 of funds of National Health Insurance Authorities and certain unemployment funds in the Irish Free State) ♦ section 23 (amendments as to fines and penalties) ♦ section 24 (relief in respect of error or mistake) ♦ section 25 (procedure on appeals before General Commissioners) ♦ section 26 (provisions as to appeals against Schedule A, Schedule B and inhabited house duty assessments) ♦ section 27 (right of appeal in respect of Schedule A values and assessments for 1923-24) ♦ section 28 (amendment as to allowance for repairs) ♦ section 29 (time within which assessments may be amended, additional assessments made, etc) ♦ section 30 (time within which claims for repayment may be made) ♦ section 31 (determination of annual values for purposes of income tax under Schedule B for 1923-24).

4. The whole of Part 2 of the 1923 Act was repealed by the Income Tax Act 195244 subject to the saving proviso that this repeal did not apply to income tax for the year 1951-52 or for any earlier year of assessment.45 Such a saving provision is standard in repeals of income tax legislation so as to allow the repealed provisions to continue to apply in relation to outstanding tax claims, appeals and other proceedings. However, since all proceedings in relation to tax for 1923-24 and earlier years will have long since been disposed of, Part 2 of the 1923 Act may now be repealed outright without any continuing saving provision.

44 The 1952 Act, s 527(1), Sch 25, Pt 1. 45 The 1952 Act, s 527(1), proviso.

503 5. Section 37 of the 1923 Act provided as follows- Provision as to inclusion of property outside Great Britain in property passing on the death of a deceased person 37.─(1) Where property situate out of Great Britain is bequeathed to or settled on different persons in succession and legacy duty or succession duty has, whether before or after the commencement of this Act, been paid thereon, such duty shall, for the purposes of subsection (2) of section two of the Finance Act, 1894 (which provides that property situate out of Great Britain shall be deemed to be included in property passing on the death of the deceased only if legacy or succession duty is payable in respect thereof, or would be so payable but for the relationship of the person to whom it passes), be deemed to be payable in respect of the property on the death of each of those persons in succession, notwithstanding that the whole amount of the duty was paid on one death only as in the case of a legacy to one person.

(2) This section shall apply in the case of property passing on the death of a person who dies on or after the sixteenth day of April, nineteen hundred and twenty-three.

6. Section 37 was repealed by the Finance Act 1949 subject to a saving provision in respect of any legacy duty or succession duty to which section 27 of the 1923 Act (abolition of death duties) did not apply.46 However, by virtue of the Finance Act 1975, liability for all types of legacy duty and succession duty has been abolished with effect from 14 March 1975.47 Accordingly the saving in respect of the repeal of section 37 is no longer necessary.

7. The only other provisions in the 1923 Act that await a full repeal are section 39(1) and (3). Section 39(1), providing for the construing of Part 1 of the 1923 Act, became obsolete once the last surviving provision in Part 1 was repealed in 1977.48 Section 39(3) is the short title, which will be unnecessary with the repeal of every other provision in the 1923 Act.

Extent 8. The 1923 Act extended throughout the United Kingdom.

46 The 1949 Act, s 52(10), Sch 11, Pt 4 (and saving at end). 47 The 1975 Act, s 50(1). 48 Section 13, which was repealed by Statute Law (Repeals) Act 1977, s 1(1), Sch 1, Pt 10.

504 Consultation 9. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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505 Reference Extent of repeal or revocation ______

Finance Act 1932 The whole Act. (22 & 23 Geo.5 c.25) ______

Finance Act 1932 1. The purposes of the Finance Act 1932 (“the 1932 Act”) included amending the existing law on income tax and providing for the payment of compensation to former collectors of taxes.

2. Changes in the law and practice since 1932 have resulted in the repeal of substantially the whole of the 1932 Act. The only provisions awaiting a final repeal are identified in this note.

3. Section 29 (power to grant compensation allowances to certain collectors of taxes on determination of appointment) empowered the Treasury to award an annual compensation allowance to certain collectors of taxes in England and Wales or Northern Ireland (including collectors of land tax) whose appointments were determined as a result of organisational improvements in the collecting of taxes. To qualify for this allowance, a collector had to be- (a) in post on 31 July 1931; and (b) still in post on 16 June 1932 (commencement of the 1932 Act).

4. Whether or not any annual allowances under section 29 remain in payment today, the right to the allowance in relation to any collector of taxes affected by the organisational improvements will have crystallised soon after the passing of the 1932 Act once the Treasury had determined the issue of entitlement to compensation in individual cases. Accordingly grants can no longer be made under this provision. Moreover, the repeal of section 29 will not prejudice any payments still being made by virtue of section 2949 nor any increases due under the Pensions (Increase) Act 1971.50

49 By virtue of s 16(1) of the Interpretation Act 1978, the repeal of an enactment does not affect the previous operation of the enactment or any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. 50 The 1971 Act, Sch 2, para 34.

506 5. The only other unrepealed provision in the 1932 Act (apart from the Act’s short title and extent provisions in section 31) is section 25(7) which provides- It is hereby declared that … in section 3 of the Currency and Bank Notes Act 1928 (which relates to the securities to be held in the issue department), the expression “securities” includes securities and assets in currency of any country and in whatever form held.51

6. Given that section 25(7) serves no purpose except to keep in force the gloss to section 3 of the Currency and Bank Notes Act 1928, the effect of section 25(7) may conveniently be preserved by the entry in the attached Schedule of consequential and connected provisions. This will supersede section 25(7) and enable the repeal of that provision.

7. There being no other substantive provisions, the repeal of section 25(7) will then permit the formal repeal of the 1932 Act as a whole.

Extent 8. The 1932 Act extended throughout the United Kingdom.52

Consultation 9. HM Treasury, HM Revenue and Customs, the Bank of England and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about this repeal proposal.

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51 The issue department refers to the relevant department of the Bank of England. The rest of section 25 has been repealed already, subs(1) by the Statute Law Revision Act 1966, and subs (2) to (6) by the Currency and Bank Notes Act 1939, s 5, Sch. The text shown missing in subs (7) was repealed by the Exchange Equalisation Account Act 1979, s 5(2), Sch. 52 The 1932 Act did not extend to Northern Ireland to the extent that it related to matters with respect to which the (abolished) Parliament of Northern Ireland had power to make laws: s 31(6).

507 SCHEDULE

CONSEQUENTIAL AND CONNECTED PROVISIONS

Currency and Bank Notes Act 1928 (c.13)

. In section 3 of the Currency and Bank Notes Act 1928 (securities for note issue to be held in issue department), after subsection (3) add-

“(4) In this section the expression “securities” includes securities and assets in currency of any country and in whatever form held.”.

508 Reference Extent of repeal or revocation ______

Finance (No.2) Act 1939 The whole Act. (2 & 3 Geo.6 c.109) ______

Finance (No.2) Act 1939 1. The purposes of the Finance (No.2) Act 1939 (“the 1939 Act”) included imposing a new tax known as excess profits tax and increasing the existing rates of estate duty. Much of the 1939 Act has already been repealed. The remaining provisions are either obsolete or unnecessary. This note proposes the repeal of the 1939 Act as a whole.

Part 1 (customs and excise) 2. Part 1 of the 1939 Act (sections 1 to 6 and Schedules 1 to 5) has already been repealed.53

Part 2 (income tax) 3. Part 2 of the 1939 Act (sections 7 to 11 and Schedule 6) related to income tax for the year 1939-40 and has already been repealed54 subject to the saving proviso that this repeal did not apply to income tax for the year 1951-52 or for any earlier year of assessment.55 Such a saving provision is standard in repeals of income tax legislation so as to allow the repealed provisions to continue to apply in relation to outstanding tax claims, appeals and other proceedings. However, since all proceedings in relation to tax for 1939-40 will have long since been disposed of, Part 2 of the 1939 Act may now be repealed outright without the saving provision.

Part 3 (excess profits tax) 4. Part 3 of the 1939 Act (sections 12 to 22 and Schedule 7) related to excess profits tax. These provisions, though obsolete, have not been repealed.

53 S 1 and Sch 1 by Finance Act 1959, s 37(5), Sch 8, Pt 1; s 2 and Sch 2 by Statute Law Revision Act 1950; s 3 and Sch 3 by Finance Act 1949, s 52(9)(10), Sch 11, Pt 3 and Customs and Excise Act 1952, s 320, Sch 12, Pt 1; s 4 by Finance (No 2) Act 1940, s 42(8), Sch 10; s 5 by Customs and Excise Act 1952, s 320, Sch 12, Pt 1; s 6 and Sch 5 by Finance Act 1949, s 52(9)(10), Sch 11 Pt 3; Statute Law Revision Act 1950; Finance Act 1952, s 76(8), Sch 14, Pt 3; Customs and Excise Act 1952, s 320, Sch 12, Pt 1; Finance Act 1962, s 34(7), Sch 11, Pt 1; Sch 4 by Finance Act 1964, s 26(7), Sch 9. 54 Income Tax Act 1952, s 527(1), Sch 25, Pt 1. 55 The 1952 Act, s 527(1), proviso.

509 5. Excess profits tax (‘EPT’) was established by section 12 of the 1939 Act with effect from 1 April 1939. It applied to all trades and businesses (but not professions) carried on in the UK (or carried on outside the UK by persons ordinarily resident in the UK). EPT was imposed on all profits in excess of the ‘standard’ profits of the trade or business.

6. EPT was in effect abolished by section 36 of the Finance Act 1946, which provided that EPT was not to be chargeable in respect of any accounting period beginning after 31 December 1946. Moreover, no assessment to EPT could be made after 18 July 1961, except in so far as the assessment was required to make good any loss of tax resulting from fraud or wilful default.56

7. The repeal of Part 3 is long overdue and is now proposed. The repeal will include the now spent section 20, which repealed the provisions in the earlier Finance Act 1939 relating to armament profits duty.

Part 4 (estate duty) 8. Part 4 of the 1939 Act (section 23) related to estate duty. It increased the rate at which estate duty was chargeable in respect of the estates of persons dying after 27 September 1939.

9. Section 23 no longer serves any useful purpose and its repeal is proposed. It was repealed by the Finance Act 1975 in relation to deaths occurring after the passing of that Act (13 March 1975).57 This was in consequence of estate duty being abolished in respect of property passing on deaths occurring after that date.58 In respect of deaths occurring before 14 March 1975 the repeal of section 23 will not prejudice any existing liability to pay estate duty.59

56 Finance Act 1961, s 32(1)-(3). 57 The 1975 Act, s 52(2)(a), Sch 13, Pt 1. Section 23 had previously been repealed in part by Finance (No 2) Act 1940, s 42(8), Sch 10. 58 The 1975 Act, s 49(1). 59 By virtue of s 16(1) of the Interpretation Act 1978, the repeal of an enactment does not affect the previous operation of the enactment or any right, privilege, obligation or liability acquired, accrued or incurred under that enactment.

510 Part 5 (general) 10. Part 5 of the 1939 Act (section 24) provided for the Act’s short title, construction and extent. These are provisions ancillary to Parts 1 to 4 of the 1939 Act and will be unnecessary following the proposed repeal of those Parts.

Conclusion 11. There being no provisions in the 1939 Act which continue to serve any useful purpose, the 1939 Act should now be repealed as a whole.

Extent 12. The provisions proposed for repeal extended throughout the United Kingdom.

Consultation 13. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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511 Reference Extent of repeal or revocation ______

Finance Act 1944 Part 5. (7 & 8 Geo.6 c.23) Section 49(5). ______

Finance Act 1944 1. The purposes of the Finance Act 1944 (“the 1944 Act”) included amending the existing legislation relating to EPT and to stamp duty.

2. Part 5 of the 1944 Act (sections 32 to 34) relates solely to EPT. These provisions were concerned with the computation of the profits upon which EPT would be assessed. As indicated in the Annex, EPT has long been abolished with the result that Part 5 is now unnecessary. A consequential repeal will be section 49(5) (an interpretation provision relating to Part 5).

Extent 3. The provisions proposed for repeal extended throughout the United Kingdom.

Consultation 4. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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512 Reference Extent of repeal or revocation ______

Finance Act 1945 The whole Act. (8 & 9 Geo.6 c.24) ______

Finance Act 1945

1. The purposes of the Finance Act 1945 (“the 1945 Act”) included amending the existing legislation about customs duties, purchase tax, income tax and excess profits tax (“EPT”). The whole of the 1945 Act has been repealed, except the obsolete provisions relating to EPT. This note proposes the repeal of the 1945 Act as a whole.

2. Section 1 extended the customs duties chargeable on hops and beer until 15 August 1949 and extended an excise drawback allowance in respect of beer until 15 November 1949. Section 1 was repealed by Finance Act 1949 subject to a long spent saving relating to the drawback of duty.60

3. Section 2 related to purchase tax and was repealed by the Finance Act 1952.61

4. Sections 3 and 4 related, respectively, to income tax for the year 1945-46 and higher rates of income tax for the year 1944-45. Both sections were repealed by Income Tax Act 1952 subject to the saving provision that the repeal did not apply to income tax for the year 1951-52 or any earlier year of assessment.62 The passage of time since 1945 means that this saving has long since become spent.

5. Section 5 related to the computation of the profits upon which EPT would be assessed. As indicated in the Annex, EPT has long been abolished with the result that section 5 is now unnecessary.

6. Section 6 related to the permanent annual charge for the National Debt and was repealed by the National Loans Act 1968.63

60 The 1949 Act, s 52(10), Sch 11, Pt 3. 61 The 1952 Act, s 76(8), Sch 14, Pt 1. 62 The 1952 Act, s 527, Sch 25, Pt 1. 63 The 1968 Act, s 24(2), Sch 6, Pt 1.

513 7. There being no other unrepealed provisions (other than section 7: short title and construction) the whole of the 1945 Act may be repealed as being obsolete.

Extent 8. The provisions proposed for repeal extended throughout the United Kingdom.

Consultation 9. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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514 Reference Extent of repeal or revocation ______

Finance Act 1947 Sections 63 and 64. (10 & 11 Geo.6 c.35) Section 74(8). ______

Finance Act 1947 1. The purposes of the Finance Act 1947 (“the 1947 Act”) included amending the existing legislation about excess profits tax (‘EPT’).

2. Sections 63 and 64 modified the operation of the EPT system in relation to the remuneration of directors (section 63) and joint and several liability for the tax (section 64).64 As indicated in the Annex, the abolition of EPT means that sections 63 and 64 are now unnecessary and may be repealed. A consequential repeal will be section 74(8), which is an interpretation provision relating to EPT.

Extent 3. The provisions proposed for repeal extended throughout the United Kingdom.

Consultation 4. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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64 As originally enacted, s 63 also related to profits tax. However a subsequent amendment repealed the reference to profits tax: Finance Act 1948, s 82, Sch 11, Pt 1.

515 Reference Extent of repeal or revocation ______

Finance Act 1948 Part 5. (11 & 12 Geo.6 c.49) Part 7. Schedule 10. ______

Finance Act 1948 1. The purposes of the Finance Act 1948 (“the 1948 Act”) included imposing a one- off tax called ‘the special contribution’. The 1948 Act also amended legislation relating to existing taxes including stamp duty.

2. Part 5 of the 1948 Act (sections 47 to 68 and Schedule 10) provided for the special contribution. The liability for this one off tax was measured by reference to income tax (excluding tax on earned income) for the year ending 5 April 1948. As indicated in the Annex, no assessment to the tax could be made after 18 July 1961. Accordingly, Part 5 (together with the ancillary Schedule 10) is now unnecessary and may be repealed. A consequential repeal is section 49 of the Finance Act 1949 (which extended the tax to Northern Ireland). This consequential is included in the separate repeal note relating to the Finance Act 1949.

3. Part 7 of the 1948 Act (sections 72 to 75) related to stamp duty. Sections 72, 73 and 75 have already been repealed outright.65 Section 74 (which provides exemption from stamp duty in connection with certain nationalisation schemes) has also been repealed.66 This repeal, however, remains prospective and is due to take effect only when ‘the abolition day’ is appointed by order made under section 111(1) of the Finance Act 1990. The order specifying the abolition day was to have coincided with the start of paperless trading under the Stock Exchange’s planned TAURUS system. Since, however, this system was abandoned in 1993, it seems unlikely that the repeal of section 74 will ever take effect pursuant to the Finance Act 1990. However the point is academic because HM Treasury and HM Revenue and Customs have confirmed that section 74 no longer serves any useful purpose. Accordingly section 74 may now be repealed.

65 S 72 by Finance Act 1956, ss 38(7), 44(9), Sch 5, Pt 2; s 73 by Finance Act 1973, s 59(7), Sch 22, Pt 5; and s 75 by Statute Law (Repeals) Act 1976, s 1, Sch 1, Pt 18. 66 Finance Act 1990, s 132, Sch 19, Pt 6.

516 Extent 4. The provisions proposed for repeal extended throughout the United Kingdom.

Consultation 5. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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517 Reference Extent of repeal or revocation ______

Finance Act 1949 Section 49. (12, 13 & 14 Geo.6 c.47) In section 51(1), the words “excess profits tax or the special contribution,”. Section 51(2). ______

Finance Act 1949 1. This note proposes the repeal of references to obsolete taxes contained in the Finance Act 1949 (“the 1949 Act”) including ‘the special contribution’.

The special contribution 2. The special contribution was a one-off tax imposed by Part 5 (sections 47 to 68, Schedule 10) of the Finance Act 1948. The liability for the tax was measured by reference to income tax (other than earned income) for the year ended 5 April 1948. The special contribution was payable by individuals whose total income exceeded £2000 and whose aggregate investment income exceeded £250. The tax was payable, subject to exceptions, on or before 1 January 1949.67 In the absence of fraud or wilful default, no assessment to the tax could be made after 18 July 1961.68

3. The provisions in the Finance Act 1948 relating to the special contribution have long ceased to serve any useful purpose and their repeal is recommended in a separate note. A consequential repeal is section 49 of the 1949 Act (which extended the special contribution regime to Northern Ireland).

Excess profits tax and the special contribution 4. The obsolete nature of excess profits tax and the special contribution is indicated in the Annex. Both appear in section 51 of the 1949 Act (settling of appeals etc by agreement).

67 The 1948 Act, s 47(6). 68 Finance Act 1961, s 32(1)(2) (which came into force on 19 July 1961).

518 5. Section 51(1) as amended69 provided that- (a) where a person had given notice of appeal to the General Commissioners, the Special Commissioners or the Board of Referees against an assessment to, or a decision in respect of, profits tax, excess profits tax or the special contribution; and

(b) before the appeal was determined an agreement was reached on the issue between the appellant and the surveyor or other proper officer of the Crown, the issue should be treated as if determined on appeal by the Commissioners or the Board.

6. The references in section 51(1) to excess profits tax and the special contribution are now obsolete and may be repealed. Also obsolete is section 51(2) which provided for cases of claims for relief from excess profits tax.

7. The scope of subsection (1) was subsequently extended to relief and appeals in respect of excess profits levy.70

Extent 8. The provisions in the 1949 Act proposed for repeal extended throughout the United Kingdom.

Consultation 9. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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69 The taxes originally covered by section 51(1) had extended to income tax and surtax. But reference to these two taxes were repealed by Income Tax Act 1952, s 527, Sch 25, Pt 1. 70 Finance Act 1952, ss 62(2), 63(1)(2). These provisions are proposed for repeal in a separate note.

519 Reference Extent of repeal or revocation ______

Finance Act 1952 Part 5. (15 & 16 Geo.6 & 1 Eliz.2 c.33) Section 69. Section 76(2) and (5). Schedules 8 to 12. ______

Finance Act 1952 1. The purposes of the Finance Act 1952 (“the 1952 Act”) included imposing a new tax known as ‘the excess profits levy’ (“the levy”).

2. The levy was imposed by Part 5 (sections 36 to 66) of, and Schedules 8 to 12 to, the 1952 Act. The levy was terminated with effect from 31 December 195371 and no assessment to the levy could be made (in the absence of fraud or wilful default) after 18 July 1961.72 More information about the levy can be found in the Annex.

3. The abolition of the levy means that Part 5 of the 1952 Act (including the ancillary Schedules 8 to 12) is now unnecessary and may be repealed. A consequential repeal will be section 69 (which applied to the levy a number of anti-avoidance provisions relating to other taxes).

4. Section 76 of the 1952 Act provides for the short title, construction, extent and repeals. Subsection (2) provides for the construction of Part 1 of the Act. The whole of Part 1, however, has already been repealed, rendering subsection (2) spent. Equally spent is subsection (5) which provides for the construction of references to the profits tax in Parts 4 and 6 of the 1952 Act. The whole of Part 4 (sections 33 to 35) and the relevant provisions in Part 6 (sections 67 to 70) have either been repealed already73 or are proposed for repeal above.

Extent 5. The provisions proposed for repeal extended throughout the United Kingdom.

71 Finance Act 1953, s 27(1). 72 Finance Act 1961, s 32(1) to (3). 73 Part 4 was repealed by Finance Act 1965, s 97(5), Sch 22, Pt 5; ss 67 and 70 were repealed by Income and Corporation Taxes Act 1970, ss 538(1), 539(1), Sch 16; s 68 was repealed by Finance Act 1965, s 97(5), Sch 22, Pt 4.

520 Consultation 6. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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521 Reference Extent of repeal or revocation ______

Finance Act 1953 Section 32. (1 & 2 Eliz.2 c.34) Section 35(4). ______

Finance Act 1953 1. The purposes of the Finance Act 1953 (“the 1953 Act”) included making provision in relation to post-war refunds of excess profits tax (‘EPT’). This provision is contained in section 32 of the 1953 Act.

2. For most of the 1939-45 war, EPT was charged at a rate of 100%. To compensate for this level of taxation, taxpayers became entitled to refunds of EPT which were known as ‘post-war refunds’. The arrangements for making these post-war refunds were set out in Part 4 of the Finance (No 2) Act 1945, which is obsolete. As indicated in the Annex, EPT has long been abolished with the result that section 32 (which amended Part 4 of the Finance (No 2) Act 1945) is now unnecessary.

3. Section 35(4) is an interpretation provision. The only unrepealed part74 is paragraph (c) which interpreted Part 3 (sections 12 to 29) of the 1953 Act so far as it related to the excess profits levy. Since Part 3 has been repealed,75 and the excess profits levy ceased to be assessable after 18 July 1961,76 section 35(4) is now spent.

Extent 4. The provisions proposed for repeal extended throughout the United Kingdom.

Consultation 5. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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74 The remainder was repealed by Income and Corporation Taxes Act 1970, s 538(1), Sch 16. 75 Income and Corporation Taxes Act 1970, s 538(1), Sch 16. 76 Finance Act 1961, s 32(1) to (3).

522 Reference Extent of repeal or revocation ______

Finance Act 1958 Section 35. (6 & 7 Eliz.2 c.56) Section 40(2)(b), (c) and (d).

Finance Act 1961 Section 32. (9 & 10 Eliz.2 c.36)

Finance Act 1962 (10 & 11 Eliz.2 c.44) Section 34(5).

Finance Act 1963 (c.25) Section 65(3).

______

1. This note identifies for repeal a number of miscellaneous obsolete provisions contained in the Finance Acts 1958, 1961, 1962 and 1963.

Finance Act 1958 2. Section 35 of the Finance Act 1958 (“the 1958 Act”) provided for miscellaneous amendments relating to stamp duty legislation. The whole of the section has been repealed77 other than subsection (6) which provided for the section to come into force on 1 August 1958. The repeal of the rest of section 35 means that subsection (6) is unnecessary with the result that the whole of this section may now be formally repealed.

3. Section 40(2) provided for the construction of various parts of the 1958 Act. Section 40(2)(b), (c) and (d) provided for the construction, respectively, of Parts 2, 3 and 4. Since all these Parts have now been repealed,78 section 40(2)(b), (c) and (d) is now spent.

Finance Act 1961 4. The purposes of the Finance Act 1961 (“the 1961 Act”) included bringing an end to assessments in respect of excess profits tax (‘EPT’), excess profits levy (‘the levy’) and the special contribution.

77 Subsections (1) to (3) were repealed by Finance Act 1971, s 69, Sch 14, Pt 6; subsection (4) was repealed by Water Act 1989, s 190, Sch 27, Pt 1 and Finance Act 1974, s 57, Sch 14, Pt 6; subsection (5) was repealed by Water Act 1989, s 190, Sch 27, Pt 1. 78 Part 2 was repealed by several enactments the last of which (repealing s 6) was the Alcoholic Liquor Duties Act 1979, s 92(2), Sch 4, Pt 1; Part 3 was repealed by Income and Corporation Taxes Act 1970, ss 538(1), s 539(1), Sch 16; Part 4 was repealed by Finance Act 1965, s 97(5), Sch 22, Pt 5.

523 5. Section 32 provided that no assessment to EPT, the levy or the special contribution could be made after the passing of the 1961 Act (19 July 1961). This terminal date was subject only to cases of fraud or wilful default79 or a case where EPT arose by virtue of section 39 of the Finance Act 1950 (enemy debts etc written off during the 1939-45 war).80 The passage of time since these now obsolete taxes could last have been invoked means that section 32 is now unnecessary.

Finance Act 1962 6. Section 34(5) of the Finance Act 1962 (“the 1962 Act”) extended the 1962 Act, so far as it amended the Sugar Act 1956, to the Isle of Man. The provisions amending the Sugar Act 1956 were section 3(6) and Part 2 of Schedule 5. Since, however, both these provisions have been repealed by the European Communities Act 1972,81 section 34(5) is unnecessary.

Finance Act 1963 7. Section 65(3) of the Finance Act 1963 (“the 1963 Act”) provided as follows- No stamp duty shall be chargeable in respect of any form of application for legal aid under the Legal Aid and Advice Acts 1949 and 1960 or the Legal Aid (Scotland) Acts 1949 and 1960, or in respect of any form relating to the offer and acceptance of a certificate pursuant to an application for legal aid under those Acts.

8. Not only have all four Acts referred to been repealed82 but the two duties to which legal aid documents were previously chargeable (agreement duty and bond and covenant duty) have long been abolished.83 Accordingly section 65(3) is now obsolete and may be repealed.

79 Section 32(2). 80 Section 32(3)(a). S 32(3)(b) provided for later assessments in respect of the levy in cases to which Finance Act 1953, s 21(2) applied. However, the repeal of Finance Act 1953, s 21(2) (by Income and Corporation Taxes Act 1970, s 538(1), Sch 16) has rendered s 32(3)(b) spent. Equally spent are subsections (4) and (5) of section 32 (transitional provisions). 81 The 1972 Act, s 4, Sch 3, Pt 2. 82 The Legal Aid and Advice Acts 1949 and 1960 were in fact the Legal Aid and Advice Act 1949 and the Legal Aid Act 1960 and were repealed by Legal Aid Act 1974, s 42, Sch 5, Pt 1. The Legal Aid (Scotland) Acts 1949 and 1960 were in fact the Legal Aid and Solicitors (Scotland) Act 1949 (repealed by Statute Law (Repeals) Act 1989, s 1(1), Sch 1, Pt 1) and the Legal Aid Act 1960 (repealed by Legal Aid Act 1974, s 42, Sch 5 Pt 1). 83 Agreement duty was abolished by Finance Act 1970, Sch 7, para 1; bond and covenant duty was abolished by Finance Act 1971, s 64(1).

524 Extent 9. The provisions proposed for repeal extend throughout the United Kingdom.

Consultation 10. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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525 Reference Extent of repeal or revocation ______

Finance Act 1964 (c.49) The whole Act. ______

Finance Act 1964 1. The purposes of the Finance Act 1964 (“the 1964 Act”) included the charging of duties on tobacco and the exempting of service contracts from stamp duty.

2. The 1964 Act has been extensively repealed by successive Finance and other Acts. This note identifies as unnecessary the provisions that have yet to be repealed in full.

Section 4 3. Section 4 (together with the ancillary Schedule 5) imposed customs duties on tobacco imported into the UK and excise duties on tobacco grown in the UK. The Finance Act 1977 (“the 1977 Act”), however, replaced such duties with tobacco products duty. Section 3(1) of the 1977 Act provided that, as from 1 January 1978, no duties of customs or excise should be charged under section 4 of the 1964 Act.

4. Section 4 (and Schedule 5) was duly repealed by the 1977 Act on 1 January 1978 but subject to the saving provision that this repeal did not “affect drawback by virtue of events occurring on or before 30 June 1978.”84 ‘Drawback’ referred to repayments, by the Commissioners of Customs and Excise, of duty already paid in respect of tobacco. The saving provision was intended to preserve the drawback arrangement provided for in section 4(2) in the circumstances outlined in section 3(3) of the 1977 Act (repayment of duty where tobacco-manufactured products have become unmerchantable through natural causes). In other words, the Commissioners were empowered, despite the repeal of section 4, to allow repayment of duty if they were satisfied that, by virtue of any event occurring on or before 30 June 1978, any tobacco on which duty under section 4 had been paid, had been used in the manufacture of products which had become unmerchantable through natural causes.

84 The 1977 Act, s 59(5), Sch 9, Pt 2 (and provision at end of Part 2).

526 5. The passage of time since June 1978 means that this saving provision will never be used again. Accordingly, section 4 (and Schedule 5) can be repealed outright without the saving.

Section 23 6. Section 23 of the 1964 Act provides that “no stamp duty shall be chargeable on, or on any memorandum of, a contract of service in any office or employment or a contract varying or terminating such a contract”. The section also provides for repayment of any stamp duty charged before the section took effect on 6 July 1964 (the claim for repayment to be made within 2 years of the payment).

7. The purpose of section 23 was to exempt from stamp duty the written particulars of employment which employers were required to give their employees by section 4 of the Contracts of Employment Act 1963. At that time, Schedule 1 to the Stamp Act 1891 contained a heading “Agreement or Memorandum of an Agreement” which would have triggered a stamp duty charge on employment contracts/memoranda. Since, however, this heading in the Stamp Act 1891 has been repealed,85 section 23 is now unnecessary and may be repealed.

Section 26(6) 8. Section 26(6) extended the 1964 Act, so far as it amended the Sugar Act 1956, to the Isle of Man. The provision amending the Sugar Act 1956 was section 22. Since, however, section 22 has been repealed by the European Communities Act 1972,86 section 26(6) is now unnecessary.

Conclusion 9. The only remaining unrepealed provisions in the 1964 Act are section 26(1) (short title), section 26(4) and (5) (construction) and section 26(7)/Schedule 9 (repeals).87 These provisions will serve no useful purpose once the other provisions

85 Finance Act 1970, s 36(8), Sch 8, Pt 4. The heading was repealed in consequence of the abolition of the duty specified in it by para 1(2)(a) of Sch 7 to the 1970 Act. 86 The 1972 Act, s 4, Sch 3, Pt 2. 87 The paragraphs at the end of Schedule 9 (repeals) are all transitional savings provisions to preserve the effect of particular enactments for particular purposes. These paragraphs relate to taxation of public revenue dividends before 1965 (para 1), drawback and other reliefs from duty operating before 1965 (para 2), charging of excise duty on hydrocarbon oils before 1965 (para 3), and regulations about taxation of heavy

527 identified for repeal have been repealed. Accordingly the 1964 Act may now be repealed in whole.

Extent 10. The provisions proposed for repeal extended throughout the United Kingdom.

Consultation 11. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

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oils under Customs and Excise Act 1952, s 202 and Finance Act 1960, s 9 (para 4). The savings are now all spent.

528 Reference Extent of repeal or revocation ______

Finance Act 1966 (c.18) Section 27. Schedule 6.

Finance Act 1968 (c.44) Part 4. Section 61(7). Schedules 15 and 16.

Finance Act 1980 (c.48) Section 3. Section 7. Section 61. Section 103.

Finance Act 1982 (c.39) Section 1(3). Section 3. Section 137. Section 150. Schedule 1.

Finance Act 1983 (c.28) Section 1(3). Section 3. Schedule 1.

______

1. This note identifies for repeal a number of miscellaneous obsolete provisions contained in post-1965 tax Acts.

Finance Act 1966 2. Schedule 6 to the Finance Act 1966 (“the 1966 Act”) (administration of Corporation Tax Acts) has been repealed88 except for paragraph 14. Paragraph 14 amended the Companies Act 1948, section 319(1)(a)(ii) and the Companies Act (Northern Ireland) 1960, section 287(1)(a)(ii). Since, however, both these amended Acts have now been repealed,89 paragraph 14 has become unnecessary. The repeal of paragraph 14 will permit the formal repeal of Schedule 6.

3. The repeal of Schedule 6 will permit the consequential repeal of section 27 of the 1966 Act. Section 27 introduced Schedule 5 (amendment of Corporation Tax Acts) as

88 Income and Corporation Taxes Act 1970, s 538(1), Sch 16; Finance Act 1994, s 258, Sch 26, Pt 5 (22). 89 Companies Consolidation (Consequential Provisions) Act 1985, s 29, Sch 1; Companies Consolidation (Consequential Provisions) (Northern Ireland) Order 1986 (1986/1035 NI 9), art 24, Sch 2.

529 well as Schedule 6. Given that the whole of Schedule 5 has since been repealed,90 section 27 has become unnecessary.

Finance Act 1968 4. Part 4 (sections 41 to 50 and the ancillary Schedules 15 and 16) of the Finance Act 1968 (“the 1968 Act”) provided for the special charge (“the charge”), a one-off tax, for which liability was measured by a person’s investment income for the year ended 5 April 1968. The charge was levied on all individuals whose aggregate investment income for that year exceeded their surtax personal allowances plus £3000. Schedules 15 and 16 contained detailed provisions for calculating a person’s income arising from, respectively, trusts and close companies. As indicated in the Annex, the charge could not be imposed in respect of any income arising after 5 April 1968. Accordingly Part 4 of the 1968 Act (together with Schedules 15 and 16) is now unnecessary and may be repealed.

5. Section 61(7) extended the 1968 Act, so far as it related to the Sugar Act 1956, to the Isle of Man. The provision in the 1968 Act relating to the Sugar Act 1956 was section 58. Since, however, section 58 has already been repealed by the European Communities Act 1972,91 section 61(7) is unnecessary.

Finance Act 1980 6. Section 3 of the Finance Act 1980 (“the 1980 Act”) made a number of amendments to the Hydrocarbon Oil Duties Act 1979 which have since been superseded by later amendments, thereby rendering section 3 unnecessary.92

90 Income and Corporation Taxes Act 1970, ss 538(1), 539(1), Sch 16; Finance Act 1994, s 258, Sch 26, Pt 5. 91 The 1972 Act, s 4, Sch 3, Pt 2. 92 The amendment by s 3(1) to the 1979 Act, s 6(1) has been superseded by Finance Act 1981, s 4(1); the amendment by s 3(2) has been superseded by Finance Act 2003, s 5(1)(b); the amendment by s 3(3) has been superseded by Finance Act 2003, s 5(2); the amendments by s 3(4) to the text in sections 7 and 8 have been repealed by Finance Act 1993, ss 11, 213, Sch 23, Pt 1(4), Finance Act 1995, s 6(2), (5); the amendment by s 3(4) to the Excise Duties (Gas as Road Fuel) Order 1972 lapsed along with the rest of that Order when its enabling authority (Finance Act 1971, s 3) was repealed by Hydrocarbon Oil Duties Act 1979, s 28(2), Sch 7; Excise Duties (Surcharges or Rebates) Act 1979, s 4(3), Sch 2; the amendment made by s 3(4) to the text in Finance Act 1965, s 92(2) was repealed by Transport Act 2000, ss 154(6), 274, Sch 31, Pt 2 (England and Wales), Transport (Scotland) Act 2001, s 38(6) (Scotland); the amendment by s 3(4) to the text in Finance Act (Northern Ireland) 1966, s 14(2) was repealed by Finance Act 1981, s.4.

530 7. Section 7 of the 1980 Act related to gaming machine licence duty. The substantive provisions in section 7 have already been repealed.93 The only remaining provision is the commencement provision in subsection (3) which is now unnecessary. Accordingly section 7 may be formally repealed in its entirety.

8. Section 61 (dates for payment of tax) is now either already repealed or unnecessary. Subsections (1) and (2) have been repealed.94 Subsection (3) amended the text in section 86(4) of the Taxes Management Act 1970 (“the 1970 Act”). Since, however, the whole of section 86 has been substituted by the Finance Act 1995,95 subsection (3) is now unnecessary. Subsection (4) amended the text in section 88(5) of the 1970 Act and in Schedule 16 to the Finance Act 1972. Subsection (4) has been repealed so far as it related to the amendment to the 1970 Act,96 and is spent so far as it related to the amendment to the Finance Act 1972 (by virtue of the whole of Schedule 16 to that Act having been repealed).97 Subsection (5) provides for the operation of section 61 as a whole and becomes unnecessary once the rest of that section has been repealed. Accordingly the whole of section 61 may now be repealed.

9. Section 103 repealed sections 2 and 3 of the Finance (Stamp Duty) Act (Northern Ireland) 1926 and became spent once that repeal had taken effect at Royal Assent on 1 August 1980.

Finance Act 1982 10. Section 1 of the Finance Act 1982 (“the 1982 Act”) amended the duties on spirits, beer, wine, made-wine and cider. Subsection (3) provided for new rates of excise duty on wine by substituting Schedule 1 to the 1982 Act for the existing Schedule 1 to the Alcoholic Liquor Duties Act 1979. This substitution has since been superseded by further amendments to Schedule 1 to that 1979 Act.98 Accordingly section 1(3) of, and Schedule 1 to, the 1982 Act are now unnecessary.

93 Subsection (1) repealed by Betting and Gaming Duties Act 1981, s 34(2), Sch 7; subsection (2) repealed by Finance Act 1985, s 98(6), Sch 27, Pt 3. 94 Subsection (1) repealed by Income and Corporation Taxes Act 1988, s 844(4), Sch 31; subsection (2) repealed by Taxation of Chargeable Gains Act 1992, s 290(3), Sch 12. 95 The 1995 Act, ss 103(7), 110. 96 Finance Act 1996, s 205, Sch 41, Pt 5(8). 97 Income and Corporation Taxes Act 1988, s 844(4), Sch 31. 98 See for example Finance Act 1983, s 1(3), Sch 1. Schedule 1 to the Alcoholic Liquor Duties Act 1979 has been amended by subsequent Finance Acts.

531 11. Subsection (1) of section 3 of the 1982 Act (hydrocarbon oils, etc) amended the rates of excise duty on hydrocarbon oil by amending text in section 6(1) of the Hydrocarbon Oil Duties Act 1979. These amendments have since been superseded by further amendments to section 6(1).99 Accordingly subsection (1) of section 3 is now unnecessary, as is subsection (3) which provided for the commencement of subsection (1). The only other provision in section 3, subsection (2), has already been repealed.100 Accordingly the whole of section 3 may now be repealed.

12. Section 137 (expenditure met by regional development grants to be disregarded for certain purposes) has already been repealed101 with the exception of subsection (1) which repealed text in paragraph 8 of Schedule 3 to the Oil Taxation Act 1975. As a repealing provision, subsection (1) became spent when it came into force at Royal Assent on 30 July 1982. Accordingly the whole of section 137 may now be repealed.

13. Section 150 (investment in gilt-edged unit trusts) inserted paragraph 10A into Part 2 of Schedule 1 to the Trustee Investments Act 1961. However section 150 became unnecessary when the entry for paragraph 10A was superseded by a new paragraph 10A inserted by the Trustee Investments (Additional Powers) (No 2) Order 1994.102

Finance Act 1983 14. Section 1 of the Finance Act 1983 (“the 1983 Act”) amended the duties on spirits, beer, wine, made-wine and cider. Subsection (3) provided for new rates of excise duty on wine by substituting Schedule 1 to the 1983 Act for the existing Schedule 1 to the Alcoholic Liquor Duties Act 1979. This substitution has since been superseded by further amendments to Schedule 1 to that 1979 Act.103 Accordingly section 1(3) of, and Schedule 1 to, the 1983 Act are now unnecessary.

99 The relevant provisions are now contained in Hydrocarbon Oil Duties Act 1979, s 6(1A), inserted by Finance Act 1997, ss 7(3), (10); Finance Act 2000, s 5(3), (6); Finance Act 2003, s 4(1), (4). 100 Vehicle Excise and Registration Act 1994, s 65, Sch 5, Pt 1. 101 Subsections (2), (3), (6) and (7) repealed by Capital Allowances Act 2001, ss 578, 580, Sch 2, para 6, Sch 4; subsections (4), (5) repealed by Income and Corporation Taxes Act 1988, s 844(4), Sch 31. 102 SI 1994/1908. The current paragraph 10A was substituted by Financial Services and Markets Act 2000 (Consequential Amendments and Repeals) Order 2001, SI 2001/3649, art 269(1), (2). 103 See for example Finance Act 1984, s 3, Sch 1. Schedule 1 to the Alcoholic Liquor Duties Act 1979 has been amended by subsequent Finance Acts.

532 15. Subsection (1) of section 3 of the 1983 Act (hydrocarbon oil) amended the rates of excise duty on hydrocarbon oil by amending text in section 6(1) of the Hydrocarbon Oil Duties Act 1979. These amendments have since been superseded by further amendments to section 6(1).104 Accordingly subsection (1) of section 3 is now unnecessary as is subsection (2) which provided for the commencement of section 3. There being no other subsections, the whole of section 3 may now be repealed.

Extent 16. The provisions proposed for repeal extended throughout the United Kingdom.

Consultation 17. HM Treasury, HM Revenue and Customs and the relevant authorities in Wales, Scotland and Northern Ireland have been consulted about these repeal proposals.

(32-195-104) LAW/005/006/06 01 February 2008

104 The relevant provisions are now contained in Hydrocarbon Oil Duties Act 1979, s 6(1A), inserted by Finance Act 1997, s 7(3), (10); Finance Act 2000, s 5(3), (6); Finance Act 2003, s 4(1), (4).

533 ANNEX

Obsolete Taxes

1. This Annex outlines some of the obsolete taxes that are referred to in these repeal proposals.

Excess profits tax 2. Excess profits tax (‘EPT’) was established by section 12 of the Finance (No 2) Act 1939 with effect from 1 April 1939. It applied to all trades and businesses (but not professions) carried on in the UK (or carried on outside the UK by persons ordinarily resident in the UK). EPT was imposed on all profits in excess of the ‘standard’ profits of the trade or business.

3. EPT was in effect abolished by section 36 of the Finance Act 1946 which provided that EPT was not to be chargeable in respect of any accounting period beginning after 31 December 1946. Moreover, no assessment to EPT could be made after 18 July 1961 except in cases of fraud or wilful default.105

The special contribution 4. The special contribution was a one-off tax imposed by sections 47 to 68 of, and Schedule 10 to, the Finance Act 1948. The liability for the tax was measured by reference to income tax (other than earned income) for the year ended 5 April 1948.106 The special contribution was payable by individuals whose total income exceeded £2000 and whose aggregate investment income exceeded £250. The tax was payable, subject to exceptions, on or before 1 January 1949.107 In the absence of fraud or wilful default, no assessment to the tax could be made after 18 July 1961.108

105 Finance Act 1961, s 32(1)-(3). 106 Nevertheless, the tax was regarded as a capital levy in that satisfaction of the taxpayer’s liability would normally have involved resorting to his or her capital resources. 107 The 1948 Act, s 47(6). 108 Finance Act 1961, s 32(1) and (2) (which came into force on 19 July 1961).

534 Excess profits levy 5. The excess profits levy (“the levy”) was a tax on business imposed by the Finance Act 1952 with effect from 1 January 1952.109 It was terminated with effect from 31 December 1953 by the Finance Act 1953.110 The levy was charged on the excess over the ‘standard’ profits of any body corporate carrying on a trade or business and was not deductible in computing profits for income tax or profits tax purposes. The levy was charged at 30%. Relief from the levy already chargeable could be claimed if profits subsequently fell below standard levels. Generally speaking, profits were computed in the same manner as for the profits tax. By the Finance Act 1961111 no assessment to the levy could be made after 18 July 1961 except in cases of fraud or wilful default.

The special charge 6. The special charge (“the charge”) was a one-off tax imposed by Part 4 (sections 41 to 50 and Schedules 15 and 16) of the Finance Act 1968. The charge was levied on all individuals whose aggregate investment income for the year ended 5 April 1968 exceeded £3000 plus the amount of their surtax personal allowances.112 In some cases the apportioned income of family-run companies (“close companies”) was taken into account in assessing the charge. The charge, which was payable on 1 January 1969, was not imposed for any period after 5 April 1968.

Profits tax (national defence contribution): note

Profits tax (national defence contribution) 7. The profits tax was introduced by Part 3 of the Finance Act 1937 under the title of ‘national defence contribution’ (‘NDC’). It was originally meant to be a temporary tax only, to apply for 5 years from 1 April 1937. On the outbreak of the 1939-45 war, EPT (see above) was introduced, and the NDC was charged only in those cases where it would produce a higher tax yield than EPT. In 1942 the 5-year time limit on NDC was

109 The 1952 Act Pt 5, Schs 8 to 12. 110 The 1953 Act, s 27(1). 111 The 1961 Act, s 32(1) to (3). 112 Surtax was introduced by Finance Act 1927, s 38 and was charged annually for the years 1928-29 to 1972-73. Surtax was additional income tax charged at a higher rate than the standard rate of income tax.

535 removed.113 The Finance Act 1946 abolished EPT,114 and NDC was renamed ‘the profits tax’.115

8. Initially, all trades and businesses were chargeable to NDC. In 1947, however, the profits tax ceased to apply to trades or businesses carried on by individuals and partnerships.116 The tax extended to trades and businesses carried on in the UK (or outside, if carried on by bodies ordinarily resident in the UK). It was entirely separate from income tax, though many of the principles for computing profits for income tax purposes applied to the profits tax. Part 4 of the Finance Act 1947 introduced an abatement system whereby the rate of the profits tax was reduced in respect of profits which were not distributed or which did not exceed certain limits. By the Finance Act 1958, however, the rate of the profits tax became the same for both distributed and undistributed profits.117

9. The profits tax was effectively abolished in 1965. By the Finance Act 1965,118 corporation tax was introduced as a tax on companies in place of income tax and the profits tax. Accordingly the profits tax ceased to be chargeable for accounting periods falling after the end of the year 1965-66.

10. Although the profits tax no longer exists, HM Treasury and HM Revenue and Customs consider that the remaining statutory references to the tax (and to the NDC) may continue to serve a useful purpose. Accordingly they are not included in the present repeal proposals.

113 Finance Act 1942, s 36. 114 The 1946 Act, s 36. 115 The 1946 Act, s 44. 116 Finance Act 1947, s 31. 117 The 1958 Act, s 25. 118 Section 46.

536 PART 9

TOWN AND COUNTRY PLANNING

______

Reference Extent of repeal or revocation ______

Civic Amenities Act 1967 (c.69) Section 15. Section 30(1). Section 32(2). ______

The Civic Amenities Act 1967

1. The purposes of the Civic Amenities Act 1967 (“the 1967 Act”) included the making of further provision for the protection and improvement of buildings of architectural or historic interest and the preservation and planting of trees. The 1967 Act has been extensively repealed over the years so that only a few provisions remain in force.

Section 15 2. Section 15 provided for penalties. Subsection (1) has already been repealed1. Subsection (2) amended section 17(1) of the Forestry Act 1967 by substituting an increased maximum fine (£250) for unlawfully felling trees. This amendment has, however, been superseded by virtue of sections 38 and 46 of the Criminal Justice Act 1982 which have the effect of substituting a fine not exceeding level 4 on the standard scale2. Subsection (2) is therefore spent. There being no other subsections, section 15 is proposed for repeal.

Section 30(1) 3. Section 30(1) provides for interpretation of expressions used in the 1967 Act. Much of section 30(1) has already been repealed3. They only definition remaining is

1 Town and Country Planning Act 1971, s.292(2), Sch.25 and the Town and Country Planning (Scotland) Act 1972, s.277(2), Sch.23. 2 As originally enacted, the Criminal Justice Act 1982 fixed the amount of the fines for levels 3 and 4 at £200 and £500 respectively. The effect of section 38 was to increase the £250 fine up to the level 4 maximum then in force i.e. £500. 3 Town and Country Planning Act 1971, s.292(2), Sch.25; Town and Country Planning (Scotland) Act 1972, Sch.23; Refuse Disposal (Amenity) Act 1978, s.12(2), Sch.2; Planning (Consequential Provisions) Act 1990, s.2, Sch.1, Pt.1; Planning (Consequential Provisions) (Scotland) Act 1997, s.3, Sch.1, Pt.1. Amended by Town and Country Planning Act 1971, s.292, Sch.25; Town and Country Planning (Scotland) Act 1972, Sch.23; and SI 1970/1681, arts.2(1), 6(3).

537 that of ‘the Minister’. However the only place remaining in the 1967 Act where ‘the Minister’ as an expression appears is in section 4(2) which relates to the powers of the Minister for the purposes of section 4 of the Historic Buildings and Ancient Monuments Act 1953 rather than for the purposes of the 1967 Act. Accordingly the definition of ‘the Minister’ in section 30(1) is not required for section 4(2) of the 1967 Act. The only other remaining provision in section 30(1) is a provision interpreting references to ‘the commencement of this Act’. However no such references now remain. Accordingly the whole of section 30(1) may now be repealed.

Section 32(2) 4. Subsection (2) of section 32 provides for commencement of Parts 1 to 3 of the 1967 Act. Except for section 2(1), these Parts were to come into force one month after Royal Assent (27 July 1967) subject to- ♦ section 18(7) and (8) and ♦ section 20(9).

5. Subject to these limitations and exceptions Parts 1 to 3 came into force on 27 August 1967. Now that sections 2, 18 and 20 have all been repealed4, section 32(2) is spent and may safely be repealed.

Extent 6. The provisions of the 1967 Act proposed for repeal extend throughout Great Britain (including the Isles of Scilly5).

Consultation 7. The Office of the Deputy Prime Minister, the Department for Culture, Media and Sport, the relevant authorities in Wales and Scotland and the Council of the Isles of Scilly have been consulted about these repeal proposals.

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4 Section 2 repealed by Town and Country Planning Act 1968, s.108, Sch.11 and Town and Country Planning (Scotland) Act 1969, s.107, Sch.11; ss.18 and 20 repealed by Refuse Disposal (Amenity) Act 1978, s.12(2), Sch.2. 5 Section 29; Isles of Scilly (Civic Amenities) Order 1970, SI 1970/239.

538 Reference Extent of repeal or revocation ______

Town and Country Amenities Act 1974 (c.32) The whole Act.

______

The Town and Country Amenities Act 1974

1. The purposes of the Town and Country Amenities Act 1974 (“the 1974 Act”) included the preservation and enhancement of buildings of architectural or historic interest and their surroundings and landscapes.

2. Most of the 1974 Act has been repealed by a succession of enactments.6 The only substantive provision remaining is section 12 which added text to section 4(1) of the Historic Buildings and Ancient Monuments Act 1953 (grants for preservation of historic buildings, their contents and adjoining land). In other words, the 1974 Act is obsolete except in respect of the section 12 amendment. The effect of section 12 may conveniently be preserved by the entry in the attached Schedule of consequential and connected provisions. This will in effect supersede section 12 and enable the whole of the 1974 Act to be repealed7.

Extent 3. The 1974 Act extends throughout Great Britain.

Consultation 4. The Office of the Deputy Prime Minister, the Department for Culture, Media and Sport and the relevant authorities in Wales and Scotland have been consulted about the proposed repeal.

32-195-98 01 February 2008

6 These include the Planning (Consequential Provisions) Act 1990, s.3, Sch.1, Pt.1; and the Planning (Consequential Provisions) (Scotland) Act 1997, s.3, Sch.1, Pt.1. 7 Section 13 of the 1974 Act (dealing with citation, repeals, commencement and extent) and the Schedule of repeals are either already spent or else will fall consequentially once section 12 ceases to have effect.

539 SCHEDULE

CONSEQUENTIAL AND CONNECTED PROVISIONS

Historic Buildings and Ancient Monuments Act 1953 (c.49)

. The repeal by this Act of section 12 of the Town and Country Amenities Act 1974 (c.32) does not affect the amendment made by that section to section 4(1) of the Historic Buildings and Ancient Monuments Act 1953 (grants for preservation of historic buildings, their contents and adjoining land).

540 Reference Extent of repeal or revocation ______

Local Government, Planning and Section 25(2). Land Act 1980 (c.65) Section 86. Sections 173 to 175. Section 178. Section 183(3). In Schedule 23, paragraphs 4, 6, 7, 13, 15 and 18.

______

Local Government, Planning and Land Act 1980 1. The purposes of the Local Government, Planning and Land Act 1980 (“the 1980 Act”) included amending the law about planning, providing for the establishment of corporations to regenerate urban areas, and making further provision in relation to gipsies and their caravan sites.

2. Section 25(2) repealed section 174(3) of the Local Government Act 1972 and section 46(2) of the Local Government Act (Scotland) Act 1973. Once these repeals had taken effect on 13 November 19808, section 25(2) became spent.

3. Section 86 provided for the distribution of planning functions between planning authorities. Subsections (1) to (7) have already been repealed9. Subsections (8) to (10) provide for the coming into operation of certain provisions of the 1980 Act on ‘the commencement date’, a date defined in subsection (11) as 2 months after Royal Assent i.e. 2 months after 13 November 1980. Accordingly subsections (8) to (10), and subsection (11) which is ancillary to those subsections, are now spent. There being no further subsections in section 86, the whole of that section is now unnecessary.

Section 173 4. Section 173 which provided as to the duty of local authorities to provide caravan sites for gipsies, repealed part of section 6(2) of the Caravan Sites Act 1968 (“the 1968 Act”) and section 190(2) of the Local Government Act 1972 (“the 1972

8 Section 25 came into force at Royal Assent on 13 November 1980.

541 Act”). The repeals came into force on 13 December 198010 in respect of the 1968 Act and on 13 November 198111 in respect of the 1972 Act. Section 173 thereupon became spent.

Sections 174 and 175 5. Section 174 substituted section 11 of the 1968 Act and section 175 substituted section 12 of the 1968 Act. Sections 11 and 12 of the 1968 Act have been repealed12. Sections 174 and 175 are spent and are, therefore, proposed for repeal.

Section 178 6. Section 178 provides for the commencement and extent of Part 17 (sections 173 to 178). Subsection (1) and (2) provide for the commencement of section 174 and section 173(b). The proposed repeal of these provisions will make subsections (1) and (2) unnecessary. Subsection (3) is a spent commencement provision. Subsection (4), relating to the extent of sections 173 to 175, becomes unnecessary with the proposed repeal of those sections. Accordingly, the whole of section 178 may now be repealed.

Section 183(3) 7. Section 183(3) provided for the repeal of section 6(3) and (4) of the Local Authority Social Services Act 1970 and became spent when the repeal came into force at Royal Assent on 13 November 1980.

Schedule 23 paragraphs 4, 6, 7, 13, 15 and 18 8. Parts 3 and 5 of Schedule 23 provide for amendments to the Town and Country Planning Act 1959 (“the 1959 Act”) and the Local Government Act 1972 (“the 1972 Act”) respectively. The following paragraphs of Schedule 23 repealed the following provisions -

9 Subsections (1) to (6) were repealed by Planning (Consequential Provisions) Act 1990, s.3, Sch.1, Pt.1; subsection (7) was repealed by Local Government Act 1985, s.102(2), Sch.17. 10 Section 178(3) – section 6 of the 1968 Act was later repealed by the Criminal Justice and Public Order Act 1994, ss.80(1), (3), (4), 168(3), Sch.11. 11 Section 178(2). 12 Criminal Justice and Public Order Act 1994, ss.80(1), (3), (4), 168(3), Sch.11.

542 Schedule 23 to the 1980 Act Repealed provisions of the 1959 Act ♦ paragraph 4 section 23(3) (partial) ♦ paragraph 6 section 26(3) and (5) (partial) ♦ paragraph 7 section 30(5)

Repealed provisions of the 1972 Act ♦ paragraph 13 section 122(3) and (5) ♦ paragraph 15 section 123(3), (4) and (5) ♦ paragraph 18 section 126(5).

9. The repeals came into force at Royal Assent on 13 November 1980 whereupon these paragraphs of Schedule 23 became spent.

Extent 10. The 1980 Act extends, in respect of the repeal proposals, throughout Great Britain (but with some extending only to England and Wales).

Consultation 11. The Office of the Deputy Prime Minister and the relevant authorities in Wales and Scotland have been consulted about these proposed repeals.

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543 Reference Extent of repeal or revocation ______

Housing and Planning Act 1986 (c.63) Section 2(2). Section 4(6). Section 11. Section 47. Section 52. Section 53(1). Section 54. In section 58(1), the words “Schedule 10,”. In section 58(2), the words “Part II of Schedule 11”. In Schedule 11, Part 2.

Housing and Planning Act 1986

1. According to its long title, the Housing and Planning Act 1986 (“the 1986 Act”) was passed to make further provision with respect to housing, planning and local inquiries; to provide financial assistance for the regeneration of urban areas; and for connected purposes.

2. Section 2(1) amended section 129 of the Housing Act 1985 (“the 1985 Act”) (discount on exercise of right to buy) by substituting new section 129(1) to (2B) for the existing section 129(1) and (2). Section 2(2) was a transitional provision providing that the amendment made by section 2(1) did not apply to any case where– (a) a tenant’s notice claiming to exercise the right to buy13 was served before section 2(1) came into force on 7 January 198714; and

(b) the landlord had before that date served notice as to the terms of exercise of that right (under section 125 of the 1985 Act).

3. The passage of time since 1987 means that section 2(2) is now unnecessary and may be repealed on that basis.

13 Or to acquire an additional share under a shared ownership lease. 14 Housing and Planning Act 1986 (Commencement No.1) Order 1986, SI 1986/2262.

544 4. Similarly unnecessary is section 4(6) which disapplies the amendments made by section 4(1) to (5) to provisions in the 1985 Act relating to service charges and other contributions payable after exercise of the right to buy. Section 4(6) disapplies these amendments in any case where- (a) a tenant’s notice claiming to exercise the right to buy was served before section 4 came into force on 7 January 198715; and

(b) the landlord had before that date served notice of terms of exercise of the right (under section 125 of the 1985 Act).

5. As with section 2(1) the passage of time since 1987 has rendered this transitional provision unnecessary.

Section 11 6. Section 11 inserted section 27C of the 1985 Act. Section 27C has however been repealed16 rendering section 11 spent. Section 11 is therefore proposed for repeal.

Section 47 7. Section 47 repealed section 134(2) of the Local Government, Planning and Land Act 1980. The repeal came into force on 7 January 198717. Section 47 is spent and is, therefore, proposed for repeal.

8. Section 52, which extends only to Scotland, provided in subsection (1) that no payment of grant under- (a) sections 237 to 239 of the Town and Country Planning (Scotland) Act 1972;

(b) section 14 of the Housing and Town Development (Scotland) Act 1957; and

15 Ibid. 16 Leasehold Reform, Housing and Urban Development Act 1993, ss.132(2), 187(2), Sch.22. 17 Housing and Planning Act 1986 (Commencement No.1) Order 1986, SI 1986/2262.

545 (c) section 9 of the Local Government (Scotland) Act 1966 should be made for the financial year 1986-87 or for any subsequent financial year. Moreover subsection (2) restricted claims for grant under certain of these enactments in respect of financial years prior to 1986-87. No such claim would be accepted unless it was received before 7 November 1986.

9. Section 52 is now obsolete. Subsection (1)(a) (relating to grants under sections 237 to 239 of the Town and Country Planning (Scotland) Act 1972 has already been repealed.18 Subsections (1)(b) and (c) are spent because the enactments to which they refer have also been repealed19. Subsection (2), limiting claims to those made before 7 November 1986, is clearly long spent.

10. Section 53(1), which extends only to Scotland, provided for the minor and consequential amendments contained in Part 2 of Schedule 11. However, since all the amendments contained in Part 2 have now either been repealed or else are spent,20 section 53(1) and Part 2 are now unnecessary and may be repealed accordingly.

11. Section 54(1), which extends to Scotland, substituted paragraphs 21 and 22 in Schedule 32 to the Local Government, Planning and Land Act 1980. However, since those paragraphs have since been repealed,21 section 54(1) is now spent. The only other provision in section 54 was subsection (2) which has already been repealed.22

12. Section 58 deals with extent. Subsection (1) describes the provisions of the 1986 Act that extend to England and Wales. The reference to Schedule 10 is now

18 Planning (Consequential Provisions) (Scotland) Act 1997, s.3, Sch.1, Pt.1. 19 Section 14 of the Housing and Town Development (Scotland) Act 1957 was repealed by the Local Authority Grants (Termination) (Scotland) Order 1986 SI 1986/672; section 9 of the Local Government (Scotland) Act 1966 was repealed by the Local Authority Grants (Termination) (Scotland) Order 1980 SI 1981/127 SI 1981/127. 20 Planning (Consequential Provisions) (Scotland) Act 1997, s.3, Sch.1, Pt.1 (which repealed paragraphs 28 to 60 and 62 of Part 2); paragraph 61 amended section 179(5) of Local Government (Scotland) Act 1973 but became spent when section 179 was repealed by Local Government etc (Scotland) Act 1994, s.180(2), Sch.14. 21 Planning (Consequential Provisions) (Scotland) Act 1997, s.3, Sch.1, Pt.1; Planning (Consequential Provisions) Act 1990, s.3, Sch.1, Pt.1. 22 Planning (Consequential Provisions) (Scotland) Act 1997, s.3, Sch.1, Pt.1.

546 unnecessary since Schedule 10 has been repealed.23 Similarly in subsection (2), which describes the provisions of the 1986 Act that extend to Scotland, the reference to Part 2 of Schedule 11 will become unnecessary in consequence of the proposal above to repeal Part 2 of Schedule 11.

Extent 13. The provisions of the 1986 Act proposed for repeal extend to England and Wales only except that the repeals relating to sections 52, 53, 54 and 58 and Part 2 of Schedule 11 extend also or only to Scotland.

Consultation 14. HM Treasury, the Office of the Deputy Prime Minister and the relevant authorities in Wales and Scotland have been consulted about the proposed repeals.

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23 Planning (Consequential Provisions) Act 1990, s.3, Sch.1, Pt.1.

547 Reference Extent of repeal or revocation ______

Urban Development Corporations The whole Act. (Financial Limits) Act 1987 (c.57)

Urban Development Corporations (Financial Limits) Act 1987 1. The Urban Development Corporations (Financial Limits) Act 1987 (“the 1987 Act”) was passed to remove the limit on the amount of grants that may be made to urban development corporations and to provide a new limit applicable only to the amounts for the time being outstanding in respect of sums borrowed by them and sums issued by the Treasury in fulfilment of guarantees of their debts.

2. The only substantive provision in the 1987 Act is section 1(1) which substitutes a new paragraph 8 of Schedule 31 to the Local Government, Planning and Land Act 1980.

3. Section 1(2) is merely a technical provision repealing section 12 of the New Towns and Urban Development Corporations Act 1985 and revoking the Urban Development Corporations (Financial Limits) Orders 1983 and 1987. These repeals/revocations took effect on 17 February 1988 when section 1(2) came into force.24 Section 1(2) thereupon became spent. Section 2 is ancillary to section 1 and provides for the 1987 Act’s short title, commencement and extent.

4. The 1987 Act now serves no purpose except to keep in force the amendment in section 1(1). The effect of section 1(1) may conveniently be preserved by the entry in the attached Schedule of consequential and connected provisions. This will then supersede section 1(1) and enable the whole of the 1987 Act to be repealed.

Extent 5. The 1987 Act extends to England and Wales.

24 By virtue of the 1987 Act, s.2(2).

548 Consultation 6. HM Treasury, the Office of the Deputy Prime Minister and the relevant authorities in Wales have been consulted about the proposed repeals.

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549 SCHEDULE

CONSEQUENTIAL AND CONNECTED PROVISIONS

Local Government, Planning and Land Act 1980 (c.65)

. The repeal by this Act of subsection (1) of section 1 of the Urban Development Corporations (Financial Limits) Act 1987 (c.57) does not affect the substitution by that subsection of paragraph 8 of Schedule 31 to the Local Government, Planning and Land Act 1980 (financial limits of urban development corporations).

550 Reference Extent of repeal or revocation ______

Planning (Hazardous Substances) Section 26. Act 1990 (c.10) Section 41(2). In section 41(3), the words “Except so far as subsection (2) applies,”.

Planning (Hazardous Substances) Act 1990 1. The Planning (Hazardous Substances) Act 1990 (“the 1990 Act”) consolidated certain enactments relating to special controls in respect of hazardous substances.

2. Sections 23 to 26AA deal with contraventions of hazardous substances control. Section 23 provides that an offence is committed where there is a contravention of hazardous substances control. Section 24 provides for the issue of a hazardous substances contravention notice in such cases if the hazardous substances authority considers this expedient.

3. However, section 26 (transitional exemptions) provides that no offence is committed under section 23 and no hazardous substances contravention notice may be issued in relation to a hazardous substance if, amongst other things, the substance was present on, over or under the land at any time during the establishment period (1 June 1991 to 31 May 1992)25.

4. These transitional exemptions have now, however, ceased to have effect. By virtue of section 26(2A)26, section 26 ceased to have effect at the end of ‘the transitional period’. The transitional period was the period of 6 months beginning 1 June 199227. Accordingly section 26 ceased to have effect as from 1 December 1992.

25 By virtue of sections 26(3) and 11(8), ‘establishment period’ means the period of 12 months immediately preceding ‘the relevant date’. Section 11(8) defines ‘the relevant date’ as the date on which Part 4 of the Housing and Planning Act 1986 came into force or, if Part 4 was not in force immediately before the date when the 1990 Act came into force, that date. In the event, Part 4 was not in force when the 1990 Act came fully into force on 1 June 1992: Planning (Hazardous Substances) Act 1990 (Commencement and Transitional Provisions) Order 1992, SI 1992/725. Accordingly ‘the relevant date’ is 1 June 1992 and the ‘establishment period’ is the immediately preceding 12 months period. 26 Section 26(2A) was inserted by Planning and Compensation Act 1991, s.25, Sch.3, Pt.1, para.14.

551 5. Section 41(2) provided for commencement of certain provisions of the 1990 Act. Subsection (2) only applied if an order had been made under section 57(2) of the Housing and Planning Act 1986 (“the 1986 Act”) appointing a date for commencement of certain of its provisions relating to hazardous substances during or at the end of a prescribed period (24 May 1990 to 24 August 1990)28. No such order was made under section 57(2) of the 1986 Act. Subsection (2) of section 41 was never applied and became spent at the end of that period (24 August 1990). Section 41(2) is, therefore, proposed for repeal, along with the opening words of section 41(3) (which refer to section 41(2)).

Extent 6. The 1990 Act extends to England and Wales.

Consultation 7. The Office of the Deputy Prime Minister and the relevant authorities in Wales have been consulted about these repeal proposals.

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27 By virtue of sections 26(3) and 11(8), ‘the transitional period’ ran for 6 months from ‘the relevant date’ i.e. 1 June 1992. 28 The period of three 3 months beginning with the day on which the 1990 Act was passed (24 May 1990).

552 Reference Extent of repeal or revocation ______

Town and Country Planning The whole Act. (Costs of Inquiries etc.) Act 1995 (c.49)

______

Town and Country Planning (Costs of Inquiries etc.) Act 1995 1. The main purpose of the Town and Country Planning (Costs of Inquiries etc.) Act 1995 (“the 1995 Act”) was to remove uncertainty as to liability for the payment of the costs of certain planning inquiries and other hearings. It authorised Ministers to cause these costs to be borne by planning authorities as well as authorising the making of Ministerial regulations to provide for fees and expenses payable to other persons.

Section 1 2. Section 1(1) inserted section 303A into the Town and Country Planning Act 1990 (“the 1990 Act”). Section 303A, which has been extensively amended by the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”)29, makes local planning authorities responsible for the costs of certain planning inquiries and other hearings - referred to in section 303A as qualifying procedures30. Section 303A applies to qualifying procedures which took place after the section came into force on 8 November 199531 and enables the Secretary of State to require the whole or part of the costs borne by him to be recovered from a local planning authority. Section 303A enables regulations to be made to prescribe standard daily amounts that can be recovered from local planning authorities and the amounts to be payable by such authorities to persons conducting inquiries. Regulations can also be made in relation to the payment of remuneration and travelling or subsistence allowances.

3. Section 1(2) to (4) are transitional provisions which modified section 303A of the 1990 Act as follows-

29 The 2004 Act, s.118, Sch.6, para.11. 30 A qualifying procedure is defined in section 303A(1A) as- (a) an independent examination under sections 20 or 64 of the 2004 Act; (b) a local inquiry or other hearing under paragraph 8(1)(a) of Schedule 7 to the 1990 Act. (c) the consideration of objections under paragraph 8(1)(b) of that Schedule. 31 The date the 1995 Act came into force (Royal Assent).

553 ♦ section 303A(5) as respects costs borne by the Secretary of State in respect of a qualifying procedure which arose before the coming into force of the first regulations made under section 303A(5) (section 1(2)),

♦ section 303A(8) as respects remuneration and travelling or subsistence allowances which were payable before the coming into force of the first regulations made under section 303A(8) (section 1(3)).

Section 1(4) provided for interpretation of section 303A as modified by section 1(2) and (3).

4. These transitional modifications to section 303A were necessary as they provided for a time period (in the months immediately following the coming into force of section 303A) during which there were no regulations prescribing standard daily amounts in respect of certain matters. The modifications provided for by section 1(2) and (3) enabled these amounts to be determined by the Secretary of State. The modifications are no longer necessary because the standard daily amounts have long since been prescribed by regulations which came into force as follows-

♦ 6 February 199632 - section 303A(5) ♦ 10 October 199633 - section 303A(8).

The amount of any costs which arose or allowances which were payable after such dates will now be provided for by the regulations made under section 303(A)(5) or (8).

5. Section 1(2) and (3) are spent and, therefore, are proposed for repeal. Section 1(4) will fall with the repeal of these subsections34.

32 The Town and Country Planning (Costs of Inquiries etc.) (Standard Daily Amount) Regulations 1996, SI 1996/24. 33 The Town and Country Planning (Costs of Inquiries etc.) (Examination in Public) Regulations 1996, SI 1996/2382. 34 The repeal of these provisions will not affect the costs etc. themselves. See s.16(1)(c) of the Interpretation Act 1978 which provides that, unless there is contrary intention, a repeal will not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment.

554 6. Section 1(5) added subsection (8) to section 35B of the 1990 Act (examinations in public). Subsection (8) reads-

“Without prejudice to section 303A(8) and (9), regulations may make provision with respect to the remuneration and allowances of any person or persons appointed by the Secretary of State to conduct an examination in public under this section.”.

7. Although the whole of section 35B has been repealed by the 2004 Act35, that repeal is subject to saving provisions which mean that section 1(5) of the 1990 Act continues to serve a purpose for the time being.

Section 2 8. Section 2 is a transitional provision which validated, with retrospective effect, certain requirements to pay and certain payments made in connection with appointments made by the Minister at any time before the passing of the 1995 Act to hold certain inquiries (“qualifying inquiries”) 36. The section provided as to recovery of costs37 etc. on similar terms to those provided for by section 303A of the 1990 Act enabling the Minister to determine a standard daily amount in respect of costs (subsections (4) to (6)) and in respect of remuneration and travel or subsistence allowances (subsections (9) to (11)). In addition the section provides for – ♦ the application of subsections (2) to (7) – subsection (8) ♦ payments by a local planning authority – subsections (12) and (13) ♦ apportionment of costs where section 303A of the 1990 Act applies – subsection (14) ♦ interpretation – subsections (15) to (17).

9. Section 2 was limited in its effect to validating payments and the recovery of payments made in relation to appointments of persons to hold qualifying inquiries at

35 The 2004 Act, s.120, Sch.9. 36 To hold a qualifying inquiry was (by virtue of section 2(1))- ♦ to hold a local inquiry or other hearing under - s.8 of the Town and Country Planning Act 1968; - s.13 of the Town and Country Planning Act 1971; - para.6 of Sch.1 to the Local Government Act 1985; - ss.16 or 42 of, para.9 of Pt.2 of Sch.2, or para.8(1)(a) of Sch.7 to the 1990 Act; ♦ to consider objections under para.8(1)(b) of Sch.7 to the 1990 Act; or ♦ to conduct an examination in public under s.35B(1) of the 1990 Act. 37 Subsections (2), (3) and (7).

555 any time before 8 November 1995 (Royal Assent). All costs in respect of these payments will have long since been made and recovered. There is no longer, therefore, any need to validate such payments nor to empower recovery of such amounts. Accordingly section 2 is spent and is proposed for repeal.

Sections 3 and 4 10. Sections 3 (costs of holding certain Scottish inquiries etc) and 4 (retrospective validation of payments etc in connection with certain past Scottish inquiries and hearings) have already been repealed38. They made broadly similar provision in relation to Scottish inquiries as sections 1 and 2 have done in relation to inquiries in England and Wales.

Section 5 11. Section 5 provides for the 1995 Act’s short title, interpretation, financial provision and extent. These provisions are purely ancillary to the remainder of the 1995 Act and have no independent effect.39

Substantive provisions remaining 12. The only substantive provisions remaining in the 1995 Act are– ♦ section 1(1) which inserted section 303A into the 1990 Act ♦ section 1(5) which added subsection (8) to section 35B of the 1990 Act.

13. Accordingly the 1995 Act now serves no useful purpose except to keep in force the amendments contained in section 1. The effect of these section 1 amendments may conveniently be preserved by the entry in the attached Schedule of consequential and connected provisions. This will thus supersede section 1 and enable the whole of the 1995 Act to be repealed.

Extent 14. The 1995 Act extends to England and Wales only.

38 Planning (Consequential Provisions) (Scotland) Act 1997, s.3, Sch.1, Pt.1. 39 For example provisions such as that in section 5(3) requiring money to be paid out of moneys voted by Parliament or for payment to be made into the Consolidated Fund are almost always inserted in Bills for reasons relating to Parliamentary procedure. They serve no purpose once a Bill has been enacted.

556 Consultation 15. HM Treasury, the Office of the Deputy Prime Minister, the Local Government Association, the Welsh Local Government Association and the relevant authorities in Wales have been consulted about this proposed repeal.

32-195-98 01 February 2008

557 SCHEDULE

CONSEQUENTIAL AND CONNECTED PROVISIONS

Town and Country Planning Act 1990 (c.8)

. The repeal by this Act of section 1 of the Town and Country Planning (Costs of Inquiries etc) Act 1995 (c.49) does not affect– (a) the amendment made by that section to section 35B of the Town and Country Planning Act 1990 (examinations in public in connection with structure plans), or

(b) the insertion by that section of section 303A of the 1990 Act (responsibility of local planning authorities for costs of holding certain inquiries etc).

558 PART 10

TURNPIKES

GROUP 1 - ESSEX ______

Reference Extent of repeal or revocation ______

7 & 8 Will.3 c.9 (1695) The whole Act. (London to Harwich Roads Act)

1 Ann Stat.2 c.10 (1702) The whole Act. (Essex Roads Act)

6 Ann c.47 (1707) The whole Act. (London to Harwich Roads Act)

12 Geo.1 c.23 (1725) The whole Act. (Essex Roads Act)

20 Geo.2 c.7 (1746) The whole Act. (Essex Roads Act)

5 Geo.3 c.60 (1765) The whole Act. (Essex, Suffolk and Hertford Roads Act)

33 Geo.3 c.149 (1793) The whole Act. (Essex Roads Act)

34 Geo.3 c.137 (1794) The whole Act. (Chelmsford Roads Act)

39 Geo.3 c.xxiii (1799) The whole Act. (Jeremy’s Ferry Bridge and Roads (Essex and Middlesex) Act)

48 Geo.3 c.xcii (1808) The whole Act. (Tilbury Fort Road Act)

55 Geo.3 c.xc (1815) The whole Act. (Road from Shenfield to Harwich Act)

1 & 2 Geo.4 c.xxxiii (1821) The whole Act. (Tilbury Fort Road Act)

4 Geo.4 c.cvi (1823) The whole Act. (Middlesex and Essex Turnpike Roads Act)

10 Geo.4 c.xxi (1829) The whole Act. (Road from Harlow Bush Common to Stump Cross Act)

559 6 & 7 Will.4 c.xlix (1836) The whole Act. (Road from Harlow Bush Common Act)

GROUP 2 – SUFFOLK ______

Reference Extent of repeal or revocation ______33 Geo.3 c.128 (1793) The whole Act. (Ipswich and Yaxley Roads Act)

42 Geo.3 c.viii (1802) The whole Act. (Woodbridge and Eye Road Act)

51 Geo.3 c.cviii (1811) The whole Act. (Suffolk Roads Act)

53 Geo.3 c.xxiv (1813) The whole Act. (Aldeburgh Roads Act)

54 Geo.3 c.xvi (1814) The whole Act. (Woodbridge and Eye Road Act)

7 Geo.4 c.cxxxi (1826) The whole Act. (Sudbury and Bury St Edmunds Road Act)

9 Geo.4 c.xlv (1828) The whole Act. (Road from Ipswich to Southtown and to Bungay Act)

9 Geo.4 c.lxxv (1828) The whole Act. (Scole Bridge and Bury St Edmunds Road Act)

10 Geo.4 c.liii (1829) The whole Act. (Newmarket Heath Road Act)

11 Geo.4 & 1 Will.4 c.xxxviii (1830) The whole Act. (Haverhill to Redcross Road (Suffolk, Cambridgeshire) Act)

1 & 2 Will.4 c.xix (1831) The whole Act. (Barton and Brandon Bridge Road (Suffolk) Act)

2 & 3 Will.4 c.v (1832) The whole Act. (Road from Ipswich to Stratford St Mary Act)

3 & 4 Will.4 c.x (1833) The whole Act. (Ipswich and Debenham, and Hemingston and Otley Bottom Roads Act)

3 & 4 Will.4 c.xcviii (1833) The whole Act. (Roads from Bury St Edmunds to Newmarket and to Brandon Act)

560 ______

Reference Extent of repeal or revocation ______

4 & 5 Will.4 c.xxix (1834) The whole Act. (Yarmouth Bridge and Gorleston Road (Suffolk) Act)

Mildenhall and Lakenheath Roads Act 1851 The whole Act. (14 & 15 Vict. c.xviii)

GROUP 3 - NORFOLK 10 Geo.3 c.54 (1770) The whole Act. (Norfolk Roads Act)

30 Geo.3 c.85 (1790) The whole Act. (Norwich to Bixley Roads Act)

32 Geo.3 c.148 (1792) The whole Act. (Norfolk Roads Act)

56 Geo.3 c.lxviii (1816) The whole Act. (Norwich and Thetford Road Act)

4 Geo.4 c.lv (1823) The whole Act. (Wisbech and King’s Lynn Roads Act)

7 Geo.4 c.xxvii (1826) The whole Act. (Norwich and Scole Bridge Road Act)

9 Geo.4 c.li (1828) The whole Act. (Thetford and Newmarket Road Act)

9 Geo.4 c.ci (1828) The whole Act. (Wells next the Sea and Fakenham Turnpike Road Act)

11 Geo.4 & 1 Will.4 c.xxxix (1830) The whole Act. (Great Yarmouth and Acle Turnpike Road Act)

1 Will.4 c.xxxii (1831) The whole Act. (Norwich and North Walsham Road Act)

1 Will.4 c.lxv (1831) The whole Act. (Road from Norwich to the Caister Causeway Act)

1 & 2 Will.4 c.xiv (1831) The whole Act. (Norwich and Cromer Road Act)

1 & 2 Will.4 c.xx (1831) The whole Act. (King’s Lynn Roads Act)

561 ______

Reference Extent of repeal or revocation ______

2 & 3 Will.4 c.xxi (1832) The whole Act. (Downham Market, Barton and Devil’s Ditch Road Act)

2 & 3 Will.4 c.liii (1832) The whole Act. (Little Yarmouth and Blythburgh, and Brampton and Halesworth Roads Act)

2 & 3 Will.4 c.lxiii (1832) The whole Act. (Norwich and Fakenham Road Act)

3 & 4 Will.4 c.xv (1833) The whole Act. (Norwich and Watton Road Act)

3 & 4 Will.4 c.xxxix (1833) The whole Act. (Norwich and New Buckenham Road Act)

5 & 6 Will.4 c.xl (1835) The whole Act. (Norwich and Swaffham Road Act)

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Obsolete turnpike Acts in Essex, Suffolk and Norfolk

Introduction

1. This note proposes the repeal of a number of obsolete turnpike Acts relating to the construction, repair and maintenance of roads in parts of Essex, Suffolk and Norfolk. These Acts have long ceased to have any effect, the periods for which they were individually enacted having expired a century or more ago. Despite this, none of them have been formally repealed, and they remain on the statute book to this day.

2. Until the late 19th century, Britain had no national framework for maintaining its highways. For much of the 17th and 18th centuries, roads were repairable by the population at large, with every able-bodied man being subject to six days a year of unpaid statute labour repairing the roads. The inefficiency of the statute labour system left most roads poorly repaired and maintained.

3. Turnpikes were an alternative method of road administration and were first used in 1663. A turnpike was a toll-gate set up across a road, with travellers along

562 that road being able to pass through the gate only upon payment of a toll. The revenue collected from tolls would be used to repair and maintain the road.

4. The first turnpike Act was passed in 1663 to set up a turnpike road in Wadesmill, Hertfordshire.1 The first turnpike trust was established by a 1706 statute which appointed and nominated 32 trustees to oversee the maintenance and management of the road between Fonthill in Bedfordshire to Stony Stratford in Buckinghamshire2. These humble beginnings led to the passing of more than 1100 local Acts establishing turnpike trusts during the 18th century. These Acts were generally expressed to continue for, or expire after, a fixed period, usually 21 years. The relevant periods were frequently extended, either by an Act specific to a particular turnpike trust or, after the mid-1830s, on an annual basis by the Annual Turnpike Acts Continuance Acts (“the ATCAs”).

5. The Annex to this note explains the reasons for the rise and subsequent decline of the turnpike system as a means of maintaining a national road network. Suffice it to say that, from 1864 onwards, Parliament embarked on a positive programme of terminating turnpike trusts. This was achieved by means of the ATCAs, each of which identified specific turnpike Acts for repeal or discontinuance, whilst continuing every other subsisting turnpike Act for a period of approximately 12 months. The final extension under an ATCA was until 1 November 18863, and the last remaining trust (relating to the Anglesey portion of the Shrewsbury to Holyhead Road) expired on 1 November 1895.

6. Although the framework of legislation that governed the generic management of turnpike trusts was repealed in 19814, most of the Acts that provided for individual turnpike trusts have never been formally repealed. The present exercise seeks to remedy that situation in relation to the counties of Essex, Suffolk and Norfolk. Work on repealing turnpike legislation in other counties of England will be undertaken in due course.

1 15 Car 2 c.1 (Road repair (Herts, Cambs and Hunts)). 2 6 Ann c.4 (Bedfordshire and Bucks roads). 3 Annual Turnpike Acts Continuance Act 1885, s 6. 4 Statute Law (Repeals) Act 1981, s1, Sch 1.

563 Annual Turnpike Acts Continuance Act 1885 7. The Annual Turnpike Acts Continuance Act 1885 (“the 1885 Act”) was the final Act in a long series dating back to the 1830s5 whereby Parliament provided for the continuation, expiry or repeal of turnpike Acts. It applied only to turnpikes in England and Wales.6 Sections 1, 3 and 4 provided for the continuation of specified turnpike Acts to dates varying between 1 November 1885 and 1 November 1896.7 Section 2 repealed the turnpike Acts specified in Schedule 2 to the 1885 Act.

8. The most significant provision of the 1885 Act is section 6, which applied to all other turnpike Acts that then remained in force. Section 6 provided as follows- Any other Act now in force for regulating, making, amending or repairing any turnpike road which will expire at or before the end of the next session of Parliament shall continue in force until the first day of November one thousand eight hundred and eighty-six, and no longer, unless Parliament in the meantime otherwise provides; but this section shall not affect any Act continued to a specified date and no longer, or any Act which is to be repealed at a specified time.

In other words, any turnpike Act that had not already expired, repealed or discontinued could continue no longer than 1 November 1886 unless Parliament provided otherwise. In the event, as indicated above, the final turnpike trust expired in 1895.

The proposed repeals – three groups

9. The Acts listed below are all proposed for repeal on the basis that, although they have expired or have been discontinued, they have not been formally repealed. They are for convenience grouped between the three counties of Essex, Suffolk and Norfolk although many of the Acts span more than one county. Moreover, boundary changes over the years mean that many of the locations originally falling within these counties now fall within other counties or within the London boroughs.

5 The annual series began in 1834 (4 & 5 Will.4 c.10) although there were earlier turnpike continuation Acts in 1800 (41 Geo.3 c.26) and 1831 (1 & 2 Will.4 c.6). 6 The 1885 Act, s 8. 7 The dates are set out in the 1885 Act, Schs 1, 3 and 4.

564 GROUP 1 – ESSEX

10. Essex turnpike history began with an Act of 16958 which allowed the county justices to establish turnpikes on parts of the London to Harwich road. The entire road was managed under the turnpike system after an Act of 17259, which also covered the road between Colchester and Langham. The next century and a half saw a huge increase in the number of turnpike roads across the county. The advent of the Eastern Counties Railway, which had joined London to Colchester by 1843, caused a significant drop in the revenue collected from tolls and many turnpike trusts became insolvent. The Colchester trust was wound up by 1870, and by 1888 all Essex roads were maintained entirely out of the county rate.10

7 & 8 Will.3 c.9 (1695) (London to Harwich Roads Act) 11. This Act related to the repair of the following Essex roads- ♦ between Shenfield and Ingatestone ♦ between Kelvedon and Stannaway (commonly known as Domesey Road) ♦ between Stirwood and Harwich ♦ between Colchester and Langham (known as the Severalls) ♦ known as Bulmer Tye and Armsey Road in Bulmer (leading to Ballingdon).

12. The Act was expressed to expire 15 years from its passing (24 February 1695). It was continued for a further period by the 1707 Act (see below).

1 Ann Stat.2 c.10 (1702) (Essex Roads Act) 13. This Act related to the repair of the highways or roads between the parish of Harlow (in Essex) and Woodford (now in the London Borough of Redbridge).

14. The Act was expressed to expire 21 years from its passing.

8 7 & 8 Will.3 c.9 (Roads, London to Harwich). 9 12 Geo.1 c.23 (Essex roads). 10 Victoria County History, A History of the County of Essex: Volume 9: The Borough of Colchester (1994) pp 233-237.

565 6 Ann c.47 (1707) (London to Harwich Roads Act) 15. This Act continued the 1695 Act for 15 years from 24 February 1710 so as to expire on 25 February 1725.

12 Geo.1 c.23 (1725) (Essex Roads Act) 16. This Act related to the repair of the following roads- ♦ from Shenfield parish (western part) to Harwich (both Essex) ♦ from Chelmsford (Essex) to Sudbury (Suffolk) ♦ from Margaretting to Malden (both Essex) ♦ from Colchester to Langham (both Essex).

17. The Act was expressed to continue for 21 years from 1 May 1726. It was continued for further periods by the 1746 and 1765 Acts (see below).

20 Geo.2 c.7 (1746) (Essex Roads Act) 18. This Act continued the 1725 Act for 21 years. Moreover, it extended the scope of the 1725 Act by increasing the powers of the trustees nominated by the 1725 Act and adding in the following Essex roads- ♦ from the pound at Runsell in Danebury to Althorne Church ♦ from the Eagle & Child in Shenfield through Billericay and Rayleigh to Rochford ♦ from Rayleigh to Leigh.

5 Geo.3 c.60 (1765) (Essex,Suffolk and Hertford Roads Act) 19. This Act continued the 1725 and 1746 Acts for another 21 years so as to expire in 1786 and extended the latter to apply to the road from Great Hallingbury (Essex) through Bishops Stortford to Hockerill (both in Herts).

33 Geo.3 c.149 (1793) (Essex Roads Act) 20. This Act related to the repair of the following Essex roads- ♦ from Hadley turnpike gate to Stifford Bridge11 ♦ from Tarpott’s Farm to South Benfleet ♦ from Brentwood to Tilbury Fort ♦ from Billericay to Horndon on the Hill ♦ from Stanford Bridge to Purfleet12.

11 Now in the Unitary Authority of Thurrock.

566 21. The Act was expressed to continue for 21 years from 24 May 1793.

34 Geo.3 c.137 (1794) (Chelmsford Roads Act) 22. This Act related to the repair of the road running from Black Grove, through Rawreth, over Battles Bridge to Chelmsford, Essex.

23. The Act was expressed to continue for 21 years from 24 May 1794.

39 Geo.3 c.xxiii (1799) (Jeremy’s Ferry Bridge and Roads (Essex and Middlesex)Act) 24. This Act continued Acts of 1757 and 177813 which provided for the building and maintenance of- ♦ a bridge over the River Lea at Jeremy’s Ferry ♦ roads to join the Great Road at Snaresbrook ♦ roads to join the Great Road at Clapton.

25. The Act was expressed to continue for 21 years, expiring in 1820.

48 Geo.3 c.xcii (1808) (Tilbury Fort Road Act) 26. This Act related to the making and maintaining of the following turnpike roads- ♦ from Whitechapel to Romford (Essex) running through the Essex parishes of West Ham, East Ham, Barking, Dagenham, Hornchurch, Rainham, Wennington, Avely, West Thurrock, Grays Thurrock, Little Thurrock and Chadwell ending up at the ferry causeway at or near Tilbury Fort

♦ from Avely to Stifford Bridge running through the Essex parishes of Avely, South Ockenden and Stifford.

Parts of this Act have been repealed.14

27. The 1808 Act was expressed to continue for 21 years i.e. until 1829. Thereafter it was continued by an Act of 1821 (proposed for repeal below) for a further 21 years until 1842.15 The 1808 Act was never specifically discontinued or

12 Now in the Unitary Authority of Thurrock. 13 30 Geo.2 c.59 (River Lea bridge and roads); 18 Geo.3 c.10 (Jeremy’s Ferry Bridge, River Lee). Both Acts were repealed by 7 Geo.4 c.cxlii (1826) (Metropolis Turnpike Roads North of the Thames). 14 49 Geo.3 c.clxxii, s 3. 15 1 & 2 Geo.4 c.xxxiii (Tilbury Fort Road Act 1821), s 1.

567 listed for expiry but was continued annually by the ATCAs until it expired on 1 November 1886 by virtue of the 1885 Act.

28. The 1821 Act which continued the 1808 Act was itself discontinued16 and is proposed for repeal below.

55 Geo.3 c.xc (1815) (Road from Shenfield to Harwich Act) 29. This Act continued an Act of 1793 (33 Geo.3 c.145). This 1793 Act provided for the repair of the following (mainly) Essex roads- ♦ Shenfield to Harwich and Rochford ♦ Chelmsford to Ballingdon Bridge, Suffolk ♦ Margaretting to Malden ♦ Colchester to Dedham Bridge ♦ Lexden to Haverill ♦ High Garrett to Bulmer Tie ♦ Marks Tey to Braintree ♦ Little Waltham to Great Hallingbury ♦ Malden to Braintree.

30. The 1815 Act extended the 1793 Act so as to include the road from Great Hallingbury to the Crown Inn at Hockerill in the parish of Bishop’s Stortford, Hertfordshire. The 1815 Act, which continued the 1793 Act for 21 years from 1815, was discontinued on 10 August 1866 by the ATCA 1866, s 1.

1 & 2 Geo.4 c.xxxiii (1821) (Tilbury Fort Road Act) 31. This 1821 Act continued the 1808 Act (Tilbury Fort, proposed for repeal above) so far as that Act related to the making and maintenance of a road from the Romford and Whitechapel Road to or near Tilbury Fort.

32. The 1821 Act, which extended the powers of the 1808 Act for a further 21 years, was discontinued on 30 June 1852 by the ATCA 1852, s 1.

4 Geo.4 c.cvi (1823) (Middlesex and Essex Turnpike Roads Act) 33. This 1823 Act superseded earlier enactments passed to repair and maintain the following roads (mostly then situated in Essex)-

16 Annual Turnpike Acts Continuance Act 1852, s 1.

568 ♦ from Whitechapel Church in the county of Middlesex to Shenfield and to the end of the parish of Woodford towards Epping

♦ from the causeway in the parish of Lowlayton to the end of the parish of Woodford next Chigwell and through the parishes of Chigwell and Lambourn

♦ from the obelisk in the parish of Wanstead to Passingford Bridge in the parish of Stapleford Abbott

♦ from Stratford to Brentwood.

34. The 1823 Act was expressed to continue for 21 years from 1823 i.e. until 1844. However, by virtue of an Act of 183417, the 1823 Act was further continued for 31 years from 25 July 1834. It was discontinued on 10 August 1866 by the ATCA 1866, s 1.

10 Geo.4 c.xxi (1829) (Road from Harlow Bush Common to Stump Cross Act) 35. This 1829 Act superseded earlier enactments passed for the repair and improvement of the following roads- ♦ (a) road leading from Harlow Bush Common in the parish of Harlow, through the parishes of Sabridgeworth, Thorley and Bishops Stortford (Hertfordshire) to a mill called South Mill, from there through both Hockerill and through the town of Bishops Stortford (both in Herts) and through the Essex parishes of Birchanger, Stansted Mountfitchet, Ugley, Quendon, Rickling, Newport, Wenden, Saffron Walden and Littlebury and through the parish of Ickleton, Cambridgeshire to Stump Cross in the Essex parish of Great Chesterford

♦ (b) the Essex road from the George Inn, Harlow through the parishes of Harlow and Latton to join the road at (a) above near Harlow Mill

♦ the Essex road from the toll bridge at Newport to join the road at (a) above “beyond the Thirty-ninth Mile Stone from London”.

17 4 & 5 Will.4 c.lxxxix, s 61.

569 36. The 1829 Act was expressed to continue for 31 years from April 1829. It expired on 1 November 1870 by virtue of the ATCA 1870, s 2, Sch 2.

6 & 7 Will.4 c.xlix (1836) (Road from Harlow Bush Common Act) 37. This 1836 Act superseded an earlier enactment passed for the repair and improvement of the following Essex roads- ♦ (a) road passing from the north end of Harlow Bush Common in the parish of Harlow, through the parishes of Latton, Northweald Bassett, Epping, Waltham Holy Cross, Loughton, Chigwell and Woodford to the junction where the road meets the new branch of the Metropolis Road called the Woodford Cut and to the north end thereof in the parish of Woodford near Higham House

♦ (b) branch road out of (a) to the Wake Arms in the parish of Waltham Holy Cross and passing through the parishes of Waltham Holy Cross, Loughton and Chigwell to a point where this branch road meets the old line of road near Woodford Wells in the parish of Woodford

♦ (c) road from Epping through the parishes of Thoydon, Garnon, Northweald Bassett, Bobbingworth, High Ongar, Chipping Ongar and Shelley to the Four-want Why in the parish of Shelley, and from there through the parishes of High Ongar and Norton Mandeville to the parish of Writtle.

38. The 1836 Act was expressed to continue for 31 years from May 1836. It expired on 30 June 1870 by virtue of the ATCA 1869, s 2, Sch 2.

570 GROUP 2 – SUFFOLK

39. Suffolk turnpike history began in 1741 with an Act bringing the road between Ipswich and Scole under the management of a turnpike trust.18 By 1844, it was noted that there were 14 turnpike trusts in Suffolk, and that “the turnpike roads in every part of the county are excellent”.19 The Eastern Counties Railway line, originally intended to connect London with Yarmouth, via Cambridge, Ipswich and Norwich, stopped at Colchester in 1843. The compulsory powers under the 1836 Act20 establishing the railway had expired so a new Act was needed for the railway to be completed.21 The Eastern Union Railway, joining Colchester to Ipswich, opened in 1846, heralding the beginning of the end of the turnpike era in Suffolk. All Suffolk roads were disturnpiked and had fallen under the county’s management by 1888.

33 Geo.3 c.128 (1793) (Ipswich and Yaxley Roads Act) 40. This Act related to the repairing of the following Suffolk roads- ♦ from Ipswich to the Scole Inn Road ♦ from Claydon to the Bury St Edmund’s Road ♦ from Yaxley Bull through Eye to Lanthorn Green.

41. The 1793 Act was expressed to commence on 24 March 1793 and continue until 6 June 1803, and then for a further term of 21 years until 1824. It was subsequently continued for a further 21 years until 1845 by the 1811 Act proposed for repeal below. The 1793 Act expired on 30 June 1870 by virtue of the ATCA 1869, s 2, Sch 2.

42 Geo.3 c.viii (1802) (Woodbridge and Eye Road) 42. This Act related to the repair, widening, improving and keeping in repair of the Suffolk road leading from the Shire Hall in the town and port of Woodbridge to Broad Street, Eye.

43. The Act was originally expressed to continue for 21 years from April 1802, so as to expire in 1823. However, the 1814 Act proposed for repeal below substituted a new term of 21 years running from 1814. This extended the life of the 1802 Act to

18 See East of England Sense of Place at http://www.senseof placesuffolk.co.uk/guided_tours/on_the_move/road.html. 19 William White’s History, Gazetteer and Directory of Suffolk 1844 (1970) p 36. 20 6 & 7 Will.4 c.cvi (Eastern Counties Railway). 21 8 & 9 Vict.c.xcvii (Ipswich and Bury St Edmunds Railway).

571 1835. Neither Act has been formally repealed (although the 1814 Act was discontinued by the ATCA 1836).

51 Geo.3 c.cviii (1811) (Suffolk Roads Act) 44. This Act continued the 1793 Act (proposed for repeal above) which related to the repairing of the following Suffolk roads- ♦ from Ipswich to the Scole Inn Road ♦ from Claydon to the Bury St Edmund’s Road ♦ from Yaxley Bull through Eye to Lanthorn Green.

45. The 1811 Act continued the 1793 Act for a further 21 years from the expiration of the 1793 term in 1824, so as to expire in 1845. Both the 1811 and the 1793 Acts expired on 30 June 1870.22

53 Geo.3 c.xxiv (1813) (Aldeburgh Roads Act) 46. This Act continued an Act of 1792 (32 Geo.3 c.126) for amending, widening and keeping in repair the Suffolk roads leading from the parishes of Yoxford, Saxmundham and Benhall to the town of Aldeburgh.

47. The 1813 Act continued the 1792 Act for a further 21 years i.e. until 1834. The 1813 Act was discontinued by ATCA 186223 with the result that it expired on 7 August 1862.

54 Geo.3 c.xvi (1814) (Woodbridge and Eye Road Act) 48. This Act continued the 1802 Act proposed for repeal above. The 1814 Act extended the 1802 Act so that it applied not only to the road referred to in that Act but also to the following Suffolk roads- ♦ from Woodbridge turnpike gate to Melton Street

♦ from the Four Cross Ways to the Brick Kiln Hill, Woodbridge and to the mill at Bredfield

♦ from Turnpike Road (near the south side of the church in Debenham) to Kemp’s Green, Debenham.

22 Annual Turnpike Acts Continuance Act 1869, s 2, Sch 2.

572 49. The 1814 Act extended the 1802 Act for 21 years i.e. until 1835. The 1814 Act was discontinued on 13 August 1836 by the ATCA 1836, s 2.

7 Geo.4 c.cxxxi (1826) (Sudbury and Bury St Edmunds Road Act) 50. This 1826 Act superseded earlier enactments passed for the repair and improvement of the high road leading from the north end of North Street in the parish of St Gregory in Sudbury, Suffolk (“where the two windmills stand”) to the boundary of the town and borough of Bury St Edmunds through the parishes of Melford, Alpheton, Shimpling, Lawshall, Stanningfield, Cockfield, Bradfield Combust, by Bradfield Manger public house (today called “The Manger”), Great Welnetham, Little Welnetham and Nowton.

51. The 1826 Act was expressed to continue for 21 years from June 1826. It expired on 1 November 1868 pursuant to the ATCA 1868, s 2, Sch 2.

9 Geo.4 c.xlv (1828) (Road from Ipswich to Southtown and to Bungay Act) 52. This 1828 Act superseded earlier enactments passed for the repair and improvement of the following Suffolk roads- ♦ from Ipswich to South Town (now in Great Yarmouth, Norfolk) ♦ branch road from the Ipswich-South Town road along Beech Lane in the parish of Darsham to Bungay.

53. The 1828 Act was expressed to continue for 21 years from 10 July 1828. It expired on 1 November 1872 by virtue of the ATCA 1872, s 3, Sch 3.

9 Geo.4 c.lxxv (1828) (Scole Bridge and Bury St Edmunds Road Act) 54. This 1828 Act superseded earlier enactments passed for the repair and improvement of the mostly Suffolk road leading from the south end of Osmondistan (otherwise Scole Bridge) over the River Waveney, through the parishes of Oakley, Sturston, Thrandeston, Palgrave, Wortham, Burgate, Botesdale, Rickinghall Superior, Rickinghall Inferior, Wattisfield, Hepworth, Stanton All Saints, Stanton St John, Bardwell, Ixworth, Pakenham and Great Barton to the boundary stone at Bury Bottom dividing the town of Bury St Edmunds from the parish of Great Barton.

23 The 1862 Act, s1.

573 55. The 1828 Act was expressed to continue for 21 years from June 1828. It was discontinued on 10 August 1866 by the ATCA 1866, s 1.

10 Geo.4 c.liii (1829) (Newmarket Heath Road Act) 56. This 1829 Act superseded earlier enactments passed for the repair and improvement of the following roads- ♦ from the east end of Newmarket, Suffolk through Newmarket and over Newmarket Heath to the parish of Fulbourne, Cambridgeshire (where the turnpike road from Stump Cross to Newmarket Heath terminates)

♦ (branching out of the above road) from the toll gate near “the Devil’s Ditch” on Newmarket Heath to the point near “the Rubbing House” where the turnpike road leading from Cambridge terminates.

57. The 1829 Act was expressed to continue for 31 years from May 1829. It expired on 30 June 1870 by virtue of the ATCA 1869, s 2, Sch 2.

11 Geo.4 & 1 Will.4 c.xxxviii (1830) (Haverhill to Redcross Road (Suffolk, Cambs) Act) 58. This 1830 Act superseded earlier enactments passed for the repair and maintenance of the road from Haverhill in Suffolk to Redcross in the parish of Great Shelford, Cambridgeshire.

59. The 1830 Act was expressed to continue for 31 years from May 1830. It expired on 1 November 1876 by virtue of the ATCA 1876, s 2, Sch 2.

1 & 2 Will.4 c.xix (1831) (Barton and Brandon Bridge Road (Suffolk) Act) 60. This 1831 Act superseded earlier enactments passed for the repair and improvement of the existing turnpike Suffolk road leading from the bridge on the old river at Little Barton through the parishes of Little Barton, Mildenhall, Eriswell, Lakenheath and Wangford to Brandon Bridge.

61. The 1831 Act was expressed to continue for 31 years from 14 September 1831. It was discontinued on 10 August 1866 by the ATCA 1866, s 1.

574 2 & 3 Will.4 c.v (1832) (Road from Ipswich to Stratford St Mary Act) 62. This 1832 Act superseded an earlier enactment passed for the repair and improvement of the Suffolk road leading from the end of St Matthew’s Street, Ipswich to the end of the bounds of Stratford St Mary.

63. The 1832 Act was expressed to continue for 31 years from March 1832. It was continued until 1 November 1880 by the ATCA 1875 (c.cxciv), s 4, Sch 4.

3 & 4 Will.4 c.x (1833) (Ipswich and Debenham, and Hemingston and Otley Bottom Roads Act) 64. This 1833 Act superseded an earlier enactment passed for the repair and improvement of the following Suffolk roads- ♦ (a) road from Ipswich commencing at the boundary of the parish of Westerfield Green to the guide post near the church in the parish of Helmingham

♦ (b) road from Ipswich commencing at the boundary of the parish of Whitton-cum-Thurlston, through Gosbeck and Pettaugh to the turnpike road in Debenham leading from Woodbridge to Eye

♦ (c) road branching out of road at (b) near Stone Wall in the parish of Hemingston and leading to Otley Bottom in the parish of Otley.

65. The 1833 Act was expressed to continue for 31 years from April 1833. It was continued until 1 November 1882 by the ATCA 1875 (c.cxciv), s 4, Sch 4.

3 & 4 Will.4 c.xcviii (1833) (Roads from Bury St Edmunds to Newmarket and to Brandon Act) 66. This 1833 Act superseded earlier enactments passed for the repair and improvement of the (now) Suffolk road from Bury St Edmunds to Newmarket.

67. The 1833 Act was expressed to continue for 31 years from 24 June 1833. It expired on 30 June 1870 by virtue of the ATCA 1869, s 2, Sch 2.

575 4 & 5 Will.4 c.xxix (1834) (Yarmouth Bridge and Gorleston Road (Suffolk) Act) 68. This 1834 Act superseded earlier enactments passed for the repair and improvement of the Norfolk/Suffolk road from Yarmouth Bridge, through Southtown to Gorleston, to the junction of the road at Gorleston leading to Beccles, and to the junction of another road at Gorleston leading to Lowestoft.

69. The 1834 Act was expressed to continue for 31 years from 11 October 1834. It was discontinued on 1 November 1871 by virtue of the ATCA 1870, s 8, Sch 9.

Mildenhall and Lakenheath Roads Act 1851 (14 & 15 Vict. c.xviii) 70. This 1851 Act superseded an earlier enactment passed for the repair and improvement of the following roads- ♦ road from Beck Fen Lane (or Fen Lane) in the parish of Mildenhall, Suffolk, through the parishes of Mildenhall, Ely Trinity, Ely St Mary and Littleport (in the Isle of Ely and county of Cambridge), to the south-east end of the bridge over the River Ouze in the parish of Littleport (this road to be known as “Mildenhall Burnt Fen Road”)

♦ road from the pound at the entrance of Mildenhall to the church of Lakenheath, Suffolk, and from there to the church of Hockwold, Norfolk, and from there to the turnpike road leading from the Devil’s Ditch to Stoke Ferry, Norfolk at or near an Inn in the parish of Methwold called “The Cock”, and also the bridge over the River Ouze (and the approaches) (to be known as the “Lakenheath and Holkwold Road”)

71. The 1851 Act was expressed to continue for 21 years from June 1851. It was discontinued on 1 November 1882 by the ATCA 1873, ss 6,7, Schs 8,9.

576 GROUP 3 – NORFOLK

72. Norfolk turnpike history began with an Act of 169524 which provided for the county justices to erect turnpikes on the road between Norwich and Thetford.25 Nathaniel Kent described Norfolk roads as being better “in their natural state than in almost any other county; so good, that no turnpike was thought of in Norfolk till they became common in other parts”.26 The next important group of turnpikes in Norfolk began with the Norwich to Cromer road in an Act of 1794. The road provided access for the Norwich city dwellers to the coast at Cromer, and was managed by the turnpike trust until 1877. The Bittern Line railway which joins Norwich to Cromer began construction in 1874, and had reached Cromer by 1877. The railway, which still exists today, was in direct competition with the turnpike road, and was a significant contributor to the trust’s financial difficulties. The Norwich to Cromer road was disturnpiked in 1877, and all Norfolk roads were under the county’s management by 1888.

10 Geo.3 c.54 (1770) (Norfolk Roads Act) 73. This Act related to the repair of the repair of the Norfolk road from St Stephen’s Gate, Norwich to Trowse.

74. The Act was expressed to continue for 21 years from the passing of the Act.

30 Geo.3 c.85 (1790) (Norwich to Bixley Roads Act) 75. This Act continued the 1770 Act for another 21 years from the expiry of that Act i.e. the 1770 Act was expressed to expire in 1812. An Act of 181227 further continued the 1770 Act for another 21 years from the expiry of the 1790 Act. The 1790 Act remains unrepealed.

32 Geo.3 c.148 (1792) (Norfolk Roads Act) 76. This Act related to the repair of the road from Bury St Edmunds (Suffolk) through Thetford to Kings Lynn (both Norfolk).

24 7 & 8 Will.3 c.26. 25 William White’s History, Gazetteer and Directory of Norfolk 1845: General History and Description of the County of Norfolk, Railways, Turnpikes and Roads. 26 Nathaniel Kent, reporting to the Board of Agriculture in 1794, as cited in V Belton, The Norwich to Cromer Turnpike (1998) p 1.

577 77. The Act was expressed to continue for 21 years from 9 June 1792.

56 Geo.3 c.lxviii (1816) (Norwich and Thetford Road Act) 78. This 1816 Act continued a number of earlier Acts for repairing and maintaining the road from the end of the Town Close in Norwich to the Chalk Pits near Thetford, and other Acts for repairing and maintaining roads between Wymondham and Attleborough, and Wymondham and Hethersett.

79. The 1816 Act, which extended the powers of these Acts for a further 21 years from their respective expiry dates, expired on 30 June 1870 pursuant to the ATCA 1869, s 2, Sch 2.

4 Geo.4. c.lv (1823) (Wisbech and King’s Lynn Roads Act) 80. This 1823 Act superseded earlier enactments passed for the repair and improvement of the roads in Norfolk from near to the Bell Inn in Wisbech (Cambridgeshire) in the Isle of Ely to the west end of Long Bridge in South Lynn (Norfolk). The Act also authorised the construction of new roads- ♦ from South Lynn to Marshland Free Bridge

♦ from Marshland Free Bridge to The Rose and Crown Tunnel in the parishes of Terrington St John’s and Tilney St Lawrence

♦ from Marshland Free Bridge to the common sea bank in the parish of Walpole St Andrew’s

♦ from the Ferry House in West Lynn St Peter’s to and through the parish of Clenchwarton and to the end of the weir bank near Kenwick Farm, and along from Clenchwarton to the turnpike road in Tilney St Lawrence.

81. The 1823 Act was expressed to continue for 21 years from 23 May 1823. It expired on 1 November 1870 by virtue of the ATCA 1870, s 2, Sch 2.

27 52 Geo.3 c.iii (Norwich and Watton road). This 1812 Act was itself repealed by an Act of 1833 (3 & 4 Will.4 c.xv) which effectively continued the 1770 Act for a further 31 years i.e. until 1864. This 1833 Act is proposed for repeal later in this note.

578 7 Geo.4 c.xxvii (1826) (Norwich and Scole Bridge Road Act) 82. This 1826 Act superseded earlier enactments passed for the repair and improvement of the Norfolk road running from the end of the Town Close in Norwich through the Norfolk parishes of Lakenham, Keswick, Markshall, Dunston, Swainsthorpe, Newton, Saxlingham, Tasburgh, Stratton St Michael, Stratton St Mary, Wacton, Pulham St Mary Magdalen, Tivetshall St Margaret, Tivetshall St Mary, Dickleburgh, Thelton and Osmondeston to Scole Bridge.

83. The 1826 Act was expressed to continue for 21 years from 10 October 1826. It was discontinued on 1 November 1874 by the ATCA 1871, s 10, Sch 10.

9 Geo.4 c.li (1828) (Thetford and Newmarket Road Act) 84. This 1828 Act superseded earlier enactments passed for the repair and improvement of the road from Christopher’s Bridge in the borough of Thetford (Norfolk) to the north-east end of Newmarket (Suffolk).

85. The 1828 Act was expressed to continue for 21 years from 2 June 1828. It was discontinued on 10 August 1866 by the ATCA 1866, s 1.

9 Geo.4 c.ci (1828) (Wells next the Sea and Fakenham Turnpike Road Act) 86. This 1828 Act superseded an earlier enactment passed for the repair and improvement of the following Norfolk roads- ♦ the main road from Wells to Fakenham and the branch road to Langor Bridge ♦ roads to East Basham and Hillington.

87. The 1828 Act was expressed to continue for 21 years from July 1828. It was discontinued on 1 November 1881 by the ATCA 1876, s 4, Sch 4.

11 Geo.4 & 1 Will.4 c.xxxix (1830) (Great Yarmouth and Acle Turnpike Road Act) 88. This 1830 Act authorised the making and maintaining of the following Norfolk roads- ♦ (a) from the bridge over the River Bure at Great Yarmouth through the parishes of Runham, Acle, Postwick, South Walsham, Burlingham St Andrew, Cantley, Tunstall and the extra-parochial lands of Robert

579 Fellowes Esq to the village of Acle (at the point of the existing Acle to Great Yarmouth turnpike road)

♦ (b) branch road from (a) from the Seven-mile House in the parish of Tunstall through the parishes of Tunstall and Halvergate to the village of Halvergate

♦ (c) branch road from (a) from north-west side of Tunstall Boat-dike through the parishes of Tunstall and Acle to the River Bure opposite Stokesby Ferry.

89. The 1830 Act was expressed to continue for 31 years from May 1830. It was discontinued on 7 August 1862 by the ATCA 1862, s 1.

1 Will.4 c.xxxii (1831) (Norwich and North Walsham Road Act) 90. This 1831 Act superseded earlier enactments passed for the repair and improvement of the Norfolk road from Magdalen Gate in Norwich, through the parishes of St Paul and St Clement (both in Norwich), through Catton, Sprowston, Beeston, St Andrew, Crostwick, Stanninghall, Horstead, Coltishall, Great Hautbois, Sco-Ruston, Scottow, Stoley, Westwick, Worstead and North Walsham to the King’s Arms Inn at North Walsham.

91. The 1831 Act was expressed to continue for 31 years from 30 March 1831. It was discontinued on 1 November 1876 by the ATCA 1873, s 7, Sch 9.

1 Will.4 c.lxv (1831) (Road from Norwich to the Caister Causeway Act) 92. This 1831 Act superseded earlier enactments passed for the repair and improvement of the Norfolk road leading from Bishopsgate Bridge in Norwich to the commencement of Acle Dam in the parish of Acle; and from the end of the Acle Dam in the parish of Billockby to the point (formerly called the Two Mile Stone) where the Norwich Road joins the Caister Causeway (2.5 miles short of the town of Great Yarmouth).

93. The 1831 Act was expressed to continue for 31 years from 11 October 1831. It was discontinued on 1 November 1874 by the ATCA 1871, s 10, Sch 10.

580 1 & 2 Will.4 c.xiv (1831) (Norwich and Cromer Road Act) 94. This 1831 Act superseded earlier enactments passed for the repair and improvement of the following Norfolk roads- ♦ (a) the road from the entrance of the city of Norwich where St Augustine’s Gate formerly stood to the first house at the entrance of the town of Cromer (where the road joins the road leading from Overstrand)

♦ (b) branch road from (a) towards Holt between the Two Mile Stone from Norwich and the termination of the Horsford boundary at a place formerly called Horsford Heath

♦ (c) branch road from (a) towards Wolterton branching off from the Cromer Road at the Crossways at a place formerly called Erpingham Field, as far as the Eagle Inn in Erpingham through the parishes of St Augustine, St Clement, Hellesdon, Horsham, Newton St Faith’s, Horsford, Hayneford, Stratton Strawless, Hevingham, Marsham, Aylsham, Blickling, Ingworth, Erpingham, Alby, Hanworth, Roughton, Northrepps and Cromer.

95. The 1831 Act was expressed to continue for 31 years from August 1831. It expired on 1 November 1876 by virtue of the ATCA 1876, s 2, Sch 2.

1 & 2 Will.4 c.xx (1831) (King’s Lynn Roads Act) 96. This 1831 Act superseded earlier enactments passed for the repair and improvement of the Norfolk roads running from- ♦ (a) the South Gate in the borough of King’s Lynn into the parishes of Hardwick, North Runcton, Middleton, Walton Fallgate, Bilney, Pentney and Narborough

♦ (b) Hardwick Common through West Winch, Setchey, Tottenhill to Downham Market, then through Wormegay, Foddeston, Shouldham Thorpe, Stradset, West Dereham, Wareham and Wretton to Stoke Ferry

♦ (c) Tottenhill to Downham Market, through Watlington, Runcton-with- Holme, Wallington, Stow Bardolph and Wimbottisham.

581 97. The 1831 Act was expressed to continue for 31 years from 14 September 1831. It was discontinued on 1 November 1877 by the ATCA 1871, s 10, Sch 10.

(2 & 3 Will.4 c.xxi) (1832) (Downham Market, Barton and Devil’s Ditch Road Act) 98. This 1832 Act superseded earlier enactments passed for the repair and improvement of the Norfolk road running from opposite the end of Rabbit Lane in the parish of Downham Market to the east end of the Two Mile Close in the parish of Barton and towards Watton to a place called the Devil’s Ditch.

99. The 1832 Act was expressed to continue for 31 years from April 1832. It was discontinued on 29 July 1864 by the ATCA 1864, s 2.

2 & 3 Will.4 c.liii (1832) (Little Yarmouth and Blythburgh, and Brampton and Halesworth Roads Act) 100. This 1832 Act superseded earlier enactments passed for the repair and improvement of the following Suffolk roads- ♦ (a) from the existing turnpike road in Little Yarmouth28 (Norfolk) to the existing turnpike road in Bulchamp in the parish of Blythburgh

♦ (b) the road branching out of the road at (a) at the church in the parish of Brampton leading to the town of Halesworth.

101. The 1832 Act was expressed to continue for 31 years from June 1832. It expired on 1 November 1867 by virtue of the ATCA 1867, s 1, Sch 2.

2 & 3 Will.4 c.lxiii (1832) (Norwich and Fakenham Road Act) 102. This 1832 Act superseded an earlier enactment passed for the repair and improvement of the Norfolk road leading from the City of Norwich to the town of Fakenham.

103. The 1832 Act was expressed to continue for 31 years from June 1832. It was continued until 1 November 1880 by the ATCA 1875 (c.cxciv), s 4, Sch 4.

28 Also known as South Town.

582 3 & 4 Will.4 c.xv (1833) (Norwich and Watton Road Act) 104. This 1833 Act superseded earlier enactments passed for the repair and improvement of the road leading from St Stephen’s Gate, Norwich to the windmill in Watton. The Act also authorised the making and maintaining of a new road to link this existing road with Chapel Field Road, in the city of Norwich.

105. The 1833 Act was expressed to continue for 31 years from 29 March 1833. It expired on 30 June 1870 by virtue of the ATCA 1869, s 2, Sch 2.

3 & 4 Will.4 c.xxxix (1833) (Norwich and New Buckenham Road Act) 106. This 1833 Act superseded earlier enactments passed for the repair and improvement of the Norfolk road leading from Ber Street Gates in Norwich to New Buckenham.

107. The 1833 Act was expressed to continue for 31 years from 6 May 1833. It expired on 30 June 1870 by virtue of the ATCA 1869, s 2, Sch 2.

5 & 6 Will.4 c.xl (1835) (Norwich and Swaffham Road Act) 108. This 1835 Act superseded earlier enactments passed for the repair and improvement of the Norfolk roads- ♦ from St Benedict’s Gate in the City of Norwich to a point opposite the Crown Inn in Swaffham ♦ from Halfpenny Bridge in Honingham to the bounds of Yaxham ♦ a lane called Hangman’s Lane, near the gates of the City of Norwich.

109. The 1835 Act was expressed to continue for 31 years from 17 June 1835. It expired on 1 November 1872 pursuant to the ATCA 1872, s 3, Sch 3.

Extent 110. The Acts proposed for repeal in this note extended only to the geographical areas in England to which they applied. These areas are principally Essex, Suffolk and Norfolk, though a number of the Acts extended additionally to the adjacent counties of Hertford and Cambridgeshire. Boundary changes over the years mean that many of the locations originally falling within these counties now fall within other counties or within the London boroughs.

583 Consultation 111. The Department for Transport, the Department for Communities and Local Government, the county councils for Essex, Norfolk, Suffolk, Hertfordshire and Cambridgeshire, Thurrock Council and the London boroughs of Barking and Dagenham, Hackney, Havering, Newham, Redbridge, Tower Hamlets and Waltham Forest have been consulted about these repeal proposals.

LAW/005/015/06 01 February 2008

584 ANNEX The turnpike system – its rise and decline Background 1. Throughout the 17th, 18th and most of the 19th centuries, the authority responsible for repairing and maintaining the highways of England and Wales was the parish.1 Within each parish every able-bodied resident was subject to a duty of statute labour, which meant 6 days a year of unpaid labour repairing the roads. This duty was easily avoided: the poor sent their children as labourers, the rich paid instead of providing manual labour, and the surveyors were reticent about enforcing statute labour against their neighbours. As a result, the roads were often left in a bad state of repair.

2. The responsibility for organising and enforcing road maintenance rested with the county justices of the peace. However, “all the indirect evidence indicates that the vast majority of the eighteenth century Justices never realised that they had any administrative responsibility at all for the management of the roads”.2 Those justices who took their responsibilities seriously were often unwilling to enforce statute labour because of its inefficiency.

3. Their only alternative was the unwieldy criminal procedure of parochial presentment and indictment. Any individual could make a presentation to the local quarter sessions in respect of an ill-maintained road in the area. If they could show that a specific person had responsibility for that right of way, the quarter sessions would enforce that obligation. If not, then the entire parish would be indicted and a fine levied if the repairs were not completed by a certain date. Over-reliance on this mechanism undermined the value of statute labour – people were even less likely to do their statute duty since they would not be exempted from the parochial fines if the roads were indicted in the future – and resulted in shoddy repairs – they were usually done at the very last minute to avoid the fine.

A New Road Management System 4. A massive increase in road traffic during the 18th century, coinciding with the build up to the Industrial Revolution later that century, gave rise to a proliferation of turnpikes. Though there had been turnpike statutes enacted in the late 17th century3, it was in the 18th and 19th centuries that more than a thousand were enacted, each one establishing a turnpike trust. There were two main reasons for this development.

5. First there was the inadequacy of the parish machinery and of the resources for maintaining highways requisite for the new increased traffic to which an expanding commerce was giving rise. The new road users, principally merchants and traders4, expected the roads to be kept in good condition whilst seeing no need for any contribution on their part. Secondly there was a feeling amongst parish residents (especially amongst farmers and country landowners) that it was only fair that those who had the benefit of the road should pay for its upkeep.

1 It was not until the Local Government Act 1894 that provision was made for the elimination of the parish as a highway authority. 2 Webb, S The Story of the King’s Highway (1963) 3 The first turnpike statute was passed in 1663 to establish a turnpike road in Wadesmill, Hertfordshire. 4 The main instigator for change was the fish industry. In order for fresh fish to reach the cities from the coast, the roads needed to be easily traversable at high speeds. This required hard, smooth surfaces, rather than soft dirt roads.

585 6. Accordingly, from the time of the Restoration, Parliament adopted the device of giving statutory powers to certain bodies of persons to charge tolls, and to use the money raised to repair and maintain the roads. Initially these bodies were the county justices. After 1711, however, Parliament began establishing ad hoc turnpike trusts responsible for collecting tolls and maintaining specified stretches of road.

7. In theory these bodies of turnpike trustees were temporary. They were intended to be a short term device, designed to cope with the exceptionally ruinous state into which a length of road had fallen because of increased usage. Their powers, and the Acts containing them, were generally expressed to last for a limited period, typically 21 years. It is likely that the temporary character of these Acts helped to prevent opposition to them. In reality, however, these trusts were far from temporary. Without fail, shortly before their Acts were due to expire, the turnpike trustees would apply for a renewal, usually on the basis that their debts were still outstanding, the roads were not in a sufficient state of repair, and the area would benefit from a continuing toll system. Indeed, the power given by these Acts to borrow, on the security of the tolls, the money needed to repair and maintain the roads made it necessary that they should be permanent. Otherwise the trustees could not have offered the lenders adequate security.

8. The turnpike Acts gave wide powers to the trustees named in each Act. There were powers to construct and maintain a specified road or roads between two or more towns or parishes; powers to levy tolls for different types of road user and to exempt certain persons or classes of person; powers to borrow money on the security of the tolls; powers to employ servants, to purchase material and to erect toll gates and toll houses. In order to avoid opposition, all the influential persons in the district were often named in the Act as trustees (sometimes numbering 200 or more).

9. Although in the earlier Acts, the county justices were sometimes given power to supervise the manner in which the trustees carried out their duties, later Acts contained no such provision. Indeed the powers of the trustees tended to increase each time their Acts were renewed, so that gradually they acquired a wide range of powers the exercise of which was unsupervised.

10. The parish remained the principal highway authority in England and Wales in the 18th and 19th centuries, despite the existence of turnpike Acts. In 1838, when turnpikes were in their heyday, only about 22,000 miles of road came under the jurisdiction of the turnpike trusts whilst 104,770 miles were the responsibility of the parish. Moreover, the creation of a turnpike trust did not exempt the parish from its obligation to maintain the roads in its area; a rule that operated harshly on a parish if a turnpike trust in its area was ineffective. Nor did the existence of a turnpike trust exempt the local residents from their duty of statutory labour, a duty which could be enforced by the county justices imposing default penalties on a parish in the event of a poorly maintained turnpike road.

11. The proliferation of turnpike trusts, each existing within its own Act or series of Acts, made it necessary for Parliament to enact legislation of general application to all turnpike trusts. This legislation was consolidated by the Turnpike Roads Act 1822 which, together with numerous subsequent amending enactments, provided a code or framework to govern the multitude of (mostly) local Acts providing for turnpike trusts. Nearly all the legislation comprising this code or

586 framework (including the 1822 Act itself) was repealed in 1981.5 However this repeal did not affect the individual turnpike trusts Acts, many of which have never been formally repealed.

A less than perfect system? 12. The turnpike system suffered from a number of serious weaknesses. An obvious weakness was the lack of any coherent structure or strategic planning in the building and maintenance of principal highways. This weakness was inherent in the piecemeal approach of turnpike trusts. It took nearly a century of disconnected effort before even such national arteries as the Great North Road from London to Edinburgh, the road from London to Holyhead or the Great Western Road from London to Exeter came, for the whole of their length, under the administration of turnpike trusts.

13. Whether or not a particular stretch of road came under such a trust depended on the initiative of the inhabitants of particular districts. And the direction taken by the roads was often determined, not by any consideration of the needs of their users, but by personal or local considerations. The jealousy of existing trusts sometimes blocked proposals for the construction of new and better roads for fear that their profits would be hit.

14. Another weakness of the turnpike system lay in the absence of any central control over the manner in which the trustees used their powers. They were slow to appoint efficient paid officers. The treasurer would often keep toll receipts with his own money. There was little effective control over the toll-men who were often illiterate and unable to maintain accounts. And the process of mortgaging the tolls was sometimes carried to such lengths that there was little income left over to spend on the roads. Ultimately there was no practical method of holding a defaulting, hopelessly incompetent or dishonest turnpike trust to account. Subject to no official supervision or central control, under no inspection, rendering no accounts, it could use or neglect its powers as it chose. A trust could not even be prosecuted for letting its roads become impassable.

15. A principal weakness of the turnpike system lay in its financial structure and administration. The trusts were burdened by heavy capital debts incurred at their inception, and some tolls did little more than pay the cost of their collection. By 1830, there were cases of trusts which had not paid interest on their bonds for 50 years. The advent of the railways reduced many trusts to a state of chronic insolvency. Within 10 years of the building of the railways a great many trusts were virtually bankrupt, with the result that the work of keeping the roads in repair fell on the very ratepayers who were paying the tolls.

16. The inability of many trusts to maintain their roads, together with abuses in the collection of tolls, caused mounting public dissatisfaction: in South Wales it led to the Rebecca Riots of 1842-43.6 By 1876, all Welsh roads had been “disturnpiked” and the maintenance obligations had been passed to newly created County Road Boards. Central Government provided funds to discharge all outstanding debts, giving financial stability to the Welsh road system. This was not to be the case in England. It took another half century before the turnpike era finally ended. From 1864 onwards, on the initiative of the House of Commons committees to which

5 Statute Law (Repeals) Act 1981, s 1(1), Sch 1, Pt 10. 6 These riots saw the destruction of many toll-gates by men dressed in women’s clothes. They justified themselves by the biblical prophecy that Rebecca’s seed should possess “the gates of those who hate them” (Genesis 24:60).

587 Bills renewing trusts were referred, a positive policy of winding up as many trusts as possible was embarked upon. Thereafter the trusts began to disappear rapidly. Whereas in the 1830s there had been approximately 1100 trusts, by 1871 there were 854, reducing to 588 by 1875 and to just two in 1890. The process was completed for England and Wales in 1895 when the last turnpike trust, that for the Anglesey portion of the Shrewsbury and Holyhead Road, finally expired.

A valuable system, despite its problems 17. Turnpike roads, administered by the statutory bodies of turnpike trustees, became the main roads of Britain in the 18th century. Until the development of a network of railways, turnpike roads constituted the principal means of communication for the transit of goods and passengers. At the height of the turnpike system, in the mid-1830s, there were about 1100 separate bodies of trustees administering between them some 22,000 miles of road and having an annual toll income in excess of £1.5 million.

18. There is little doubt that turnpike trusts, in their day, provided a great service to the nation. The turnpike regime was probably the most effective means at the time of implementing an upgrade of national road transport. It is difficult to see by what other expedient the roads could have been improved. It would have been impossible to persuade Parliament to give the necessary powers to any department of central Government, still less to persuade it to vote a sum of money equal to that raised by the tolls. It would have been equally impossible for the county justices to raise the necessary amount by local taxation.7 The turnpike trust and its toll was the only practicable option.

Road management after turnpike trusts 19. At the same time as the changes in the turnpike regime, the rest of the English road administration system was being reorganised. The Highway Act 1835 (“the 1835 Act”) consolidated and amended the existing law as to highways in England. Although it did not affect highways that were under the jurisdiction of turnpike trusts, the 1835 Act confirmed the parish as the principal authority with responsibility for repairing and maintaining other highways in England. Parishes and county justices were given new powers and duties in relation to highways. Parishes could consolidate themselves into highway districts upon application to the county justices. A surveyor for each parish or district had to be elected or appointed and such surveyors were required to make a return to the justices as to the state of the roads.

20. The weakness of the 1835 Act was its reliance on the parish as the unit of administration. In reality a much larger geographical area – such as the county – was needed to secure a strategic highways policy, rather than the 15,000 or more “highway parishes” in England and Wales existing at that time. Although the Highways Act 1862 gave the justices power to group parishes into highway districts, there was no requirement to do this. The 1862 Act was unpopular with parishes, many of which used provisions in the Local Government Act 1858 to become “Urban Sanitary Districts” and retain control over their roads.

7 “Without the local initiative and local support fostered by the thousand separate Trusts; without the emulation and mutual instruction which their several experiments promoted; without the large revenues which the toll drew from the multitudinous but politically helpless road users, no considerable improvement in the highways of England would have taken place for, at any rate, the first three-quarters of the eighteenth century, and very little would have been achieved before the passing of the Reform Bill.”: Webb, S The Story of the King’s Highway (1963) p 145.

588 21. Parochial road administration was dealt its fatal blow by the Highways and Locomotives (Amendment) Act 1878 which created a single highway rate, and thus prevented the parishes being financially independent. The Local Government Act 1894 completed the change by eliminating the parish as a highway authority. By 1900, the responsibility for maintaining highways resided with county councils.

22. Once it became clear that turnpike trusts were an inefficient control mechanism the Government had to find a suitable alternative to execute the maintenance obligations. Whether through accident or design, the parochial obligation had never been removed; it was just no longer enforced. The Application of Highway Rates to Turnpikes Act 1841 provided for a proportion of the highway rates to be used for turnpike roads, and thus reinstated the parochial duty of maintenance. As discussed above, at paragraph 16, the dual contribution forced on parishioners led to violent protests against the turnpikes. In Wales, this resulted in a very quick disturnpiking process. In England, the move away from turnpikes was much slower.

23. In 1864, a Select Committee of the House of Commons8 recommended that “the abolition of turnpike trusts ‘would be both beneficial and expedient’”.9 The Government did not formulate any policy on the matter, and it was left to the annual Committee on Turnpike Trust Bills to execute the winding up of trusts.

24. The Highways and Locomotives (Amendment) Act 1878 provided that, from then on, all disturnpiked roads were to be reclassified as “main roads”, which were maintainable by the county justices at quarter sessions.10 The responsibility for “main roads” was transferred to county councils and county borough councils by the Local Government Act 188811 and the Local Government Act 1929.12

25. Roads which were previously managed by turnpike trusts now fall within the remit of the general law concerning highways and are repairable and maintainable as such.

*****************

8 Report from the Select Committee on Turnpike Trusts: together with the proceedings of the committee, minutes of evidence and appendix, (1864) (383-I) 9 Webb, S The Story of the King’s Highway (1963) p 221. 10 The 1878 Act, ss 13, 15, 38. 11 The 1888 Act, ss 3, 11, 34-36, 40, 41. 12 The 1929 Act, s 29.

589 PART 11

MISCELLANEOUS

______

Reference Extent of repeal or revocation ______

Transport Act 1968 Section 142. (c.73)

Channel Tunnel (Initial Finance) The whole Act. Act 1973 (c.66)

Planning (Consequential Provisions) In Schedule 2, paragraph 22(5). Act 1990 (c.11)

______

Channel Tunnel (Initial Finance) Act 1973

Background 1. In 1966 the British and French Governments formally agreed (not for the first time) that a tunnel link should be constructed beneath the English Channel. The tunnel’s construction, to create a rail-based link, would be financed through the private sector. Once completed, the tunnel would be transferred to an Anglo-French public body to operate it. The Government’s first task, therefore, was to select a group of private sector financiers to finance the construction phase. This was to be followed by detailed location planning and design engineering.

2. By 1968 two issues had arisen. First, the British Government felt that it was necessary to safeguard against future development any land in England which was likely to be required for the tunnel or allied purposes. The Minister of Transport at that time had no power to acquire or to hold land for the purpose of a Channel tunnel.

3. Secondly, in response to MPs in east Kent seeking an indication of possible terminal sites for the tunnel, the Government signified that the sites were limited to the general area between Ashford and Folkestone. In so doing, Government recognised that the uncertainty surrounding the precise details of the scheme might result in property owners having difficulty in selling their land.

590 4. Although the existing powers under planning legislation were felt to be sufficient to enable a local planning authority to safeguard any land likely to be needed, the powers to deal with land blighted by possible tunnel schemes were thought to be inadequate. Accordingly, the Government included in the (then) Transport Bill a clause enabling it to buy land which was likely to be required for the tunnel, by agreement with, and at the request of, those landowners who might otherwise suffer hardship. This became section 142 of the Transport Act 1968, which provision remains in force today.

5. Phase 1 of the tunnel project (final studies on detailed planning of the terminals and road links) ran from 1971 to 1973. In 1973 the Government published a White Paper concluding that construction of a bored rail tunnel and associated rail link would be in the national interest.1 The Paper incorporated draft clauses for a short fast-track money bill which would enable the initial construction works (phase 2 of the project) to begin once the necessary Anglo-French Treaty had been signed.2 It was intended that, during phase 2, a second (hybrid) bill would then be presented for enactment setting out detailed arrangements for financing, construction and operation of the tunnel in phase 3 of the project, and authorising ratification of the Treaty.3

6. In the event, only the money bill was enacted in November 1973 (as the Channel Tunnel (Initial Finance) Act 1973). Although the Treaty was signed in that same month, it was made subject to Parliamentary ratification by January 1975. The hybrid bill was introduced in the 1973/74 Session, but it foundered through lack of time as a consequence of two General Elections called during 1974.4 The project was formally abandoned in January 1975. The 1973 Initial Finance Act, however, remains in force.

7. Finally, in February 1986, a further Treaty for the construction and operation project was signed with the French Government.5 That led to the passing of the

1 Channel Tunnel (Department of the Environment, Cmnd. 5430, September 1973), chapter 1 (The Government’s view). 2 Ibid., Annex 14 (Proposals for a Channel Tunnel (Initial Finance) Bill). 3 Ibid., chapter 11 (Finance and Organisation). 4 Further design work on a bored tunnel link was carried out during 1974: see Fixed Channel Link: Report of UK/French Study Group (Department of Transport, Cmnd. 8561, June 1982), Annex E (Bored Tunnels). 5 Treaty signed 12 February 1986 and ratified 29 July 1987. For text of Treaty, see Cmnd. 9745 (February 1986) and Cm 1827 (March 1992).

591 Channel Tunnel Act 1987. Although the tunnel was completed and inaugurated in May 1994, further work for upgrading the rail link into London (pursuant to the Channel Tunnel Rail Link Act 1996) continued into the following decade.

Transport Act 1968 8. Section 142 of the Transport Act 1968, as subsequently amended,6 (“the 1968 Act”) provides two separate powers to the relevant Secretary of State7 in connection with the Channel tunnel.

9. First, by section 142(1), the “Minister” is empowered to acquire “by agreement” any land which is “likely to be required” for provision in England of a terminal or other works for the purposes of “a railway linking England with France and passing under the English Channel”.8 In general terms, the minister may purchase blighted land if and when asked to do so by an affected owner, although the scope of the provision is drawn more widely than this. Section 142 does not confer any power of compulsory acquisition.

10. Secondly, by section 142(2), where a local authority becomes liable to pay compensation to a landowner for the refusal, revocation or modification of planning permission9, which decision or order was in consequence of the related land “being likely to be required” for the Channel tunnel scheme, the minister is empowered to make a financial contribution to the authority towards the cost incurred. The amount of contribution is subject to Treasury consent.

11. As indicated above, section 142 was included within the 1968 Act in order to facilitate the first phase of the (subsequently aborted) 1966 to 1975 project. That project was superseded by the scheme authorised by, and later delivered under, the Channel Tunnel Act 1987 (“the 1987 Act”).

6 Section 142(2) of the Transport Act 1968 was amended by the Planning (Consequential Provisions) Act 1990, s.4, Sch.2, para 22(5). This amending provision also requires repeal (see below). 7 Formerly the Minister of Transport (see the 1968 Act, s.159(1)), but now the Secretary of State for Transport. 8 These words do not specifically restrict acquisition to land sited at, or immediately adjacent to, the tunnel approach. 9 Section 142(2) relates to any “decision or order” given or made, or “purchase notice” served, under Town and Country Planning Act 1990, Parts 3, 6 or 8, or Planning (Listed Buildings and Conservation Areas) Act 1990, or Planning (Hazardous Substances) Act 1990. Where an aggrieved landowner serves a valid “purchase notice” on the relevant authority under Town and Country Planning Act 1990, Part 6,

592 12. Moreover, section 8(2) of the 1987 Act authorised the Secretary of State to acquire by agreement land which is required for the construction and maintenance of the “scheduled works”10 (and connected works) or construction or operation of the tunnel system.11 Although that provision is not cast in such wide terms as section 142 of the 1968 Act, it clearly covers land beyond the confines of the “scheduled works”. In this regard its purpose duplicates section 142, which provision was designed with the urgent circumstances of the earlier project in mind.12

13. On this basis, section 142 of the 1968 Act is no longer required and should now be repealed. A consequential repeal is paragraph 22(5) of Schedule 2 to the Planning (Consequential Provisions) Act 1990 (“the 1990 Act”).

Extent 14. Section 142 of the 1968 Act extended throughout Great Britain.13

15. Schedule 2, para. 22(5) to the 1990 Act extended throughout Great Britain (by virtue of that provision affecting another enactment which so extends).14

Channel Tunnel (Initial Finance) Act 1973 16. The Channel Tunnel (Initial Finance) Act 1973 (“the 1973 Act”) was designed to make financial provision for “preliminary work”15 to be carried out in connection with the construction of a rail tunnel under the English Channel.

17. Section 1 of the 1973 Act authorised three steps.

18. First, by section 1(1)(a), the Treasury could guarantee the repayment of principal and interest arising from any borrowing agreement to which the relevant Secretary of State became a party after the passing of the Act in respect of

because his land has become “incapable of reasonably beneficial use”, the effect is akin to compulsory purchase. 10 Being the works set out in the 1987 Act, s.5(4) and Sch 1. 11 Section 8 of the 1987 Act is made subject to section 37 of that Act (relating, in the main, to supplemental purposes for acquisition). 12 Similar provision, empowering the Secretary of State to acquire blighted land by agreement, is contained in the Channel Tunnel Rail Link Act 1996, s.48. 13 The 1968 Act, s.164(1). 14 The 1990 Act, s.7(3). 15 Defined as including “studies, surveys, trials and experimental work connected with the construction of a railway tunnel system under the English Channel as well as work on the construction of any part of that system”: the 1973 Act, s.2(1).

593 preliminary work “done before or to be done during the initial period”.16 The upper limit on the sums which could be guaranteed was in aggregate £30 million (plus a top-up to a maximum of £5 million if the Secretary of State should by order so specify).17

19. Secondly, by section 1(1)(b), the Treasury could make payments towards the fulfilment of guarantees given in relation to any borrowing agreement to which the French Government became a party following the passing of the Act, which agreement was for the same purpose. The upper limit was specified as, in aggregate, £15 million for the repayment of principal (subject to the power to increase that figure to half the top-up18 if already specified by order by the Secretary of State under section 1(2)).19

20. Thirdly, by section 1(1)(c), the Secretary of State was to be reimbursed any expenditure he might incur in carrying out tunnel-related construction studies, or in fulfilling liabilities which could arise “in consequence of the abandonment during the initial period of the work to which the [borrowing] agreement relates”.

21. Section 2 of the 1973 Act set out the short title of the Act and interpretation provisions.

22. For two reasons, the 1973 Act is now spent.

23. First, the operational validity of the Act was, on its face, time-limited. Although the Act did not lapse automatically past a certain date, the purpose of the Act (to provide initial finance mechanisms) applied only to preliminary works undertaken before or during the “initial period”. That period expired on 1 July 1975.

24. Secondly, the scheme envisaged by, and underpinning, the 1973 Act was superseded by the later Channel tunnel development. That later development was

16 The “initial period” was defined as that commencing with Royal Assent (13 November 1973) “and expiring with 1st July 1975 or such later date as the Secretary of State may by order made by statutory instrument appoint”: see the 1973 Act, s.2(1). No continuation order has been made under this section. 17 The 1973 Act, s.1(2). Power to make an order included power to vary or revoke a previous order: ibid., s.1(8). Immediately after a guarantee is given, the Treasury must lay before each House of Parliament a statement relating to the sum: ibid., s.1(5). 18 Ie. a maximum of £2.5 million. 19 The 1973 Act, s.1(3). Again, at the end of the relevant financial year, a statement was to be laid before each House as to any sum paid under this provision: ibid, s.1(6).

594 governed by the Channel Tunnel Act 1987 (“the 1987 Act”).20 The 1987 Act allowed the provision of funds and guarantees under “any enactment”21 designed to benefit “persons of any class or description which includes the Concessionaires”22, or to cover expenditure “of any class or description which includes expenditure on the construction or operation of the tunnel system or any part of it”, but not otherwise.23 The 1987 Act did not refer specifically to the 1973 Act. Significant survey and design work was carried out between April 198524 and July 1986 when plans and sections were deposited for the Channel Tunnel Bill.25

25. Moreover, separate provision was made in the 1987 Act for Parliament- provided money to reimburse the Secretary of State for expenditure incurred in, amongst other things, acquiring land, maintaining and operating the tunnel system (in the event that construction stopped prematurely), and meeting obligations flowing from the Treaty or the Concession agreement.26 This financial provision was similar to (although not the same as) that in the 1973 Act, s.1(1)(c), as described above. No statutory upper limit was placed on reimbursable expenditure.

26. All the indications are that the 1973 Act as a whole is spent, and it should now be repealed.

Extent 27. The 1973 Act did not define its territorial extent, but its effect was clearly limited to England and Wales.

20 Enacted to facilitate the “construction and operation of a tunnel rail link” in accordance with the Anglo-French Treaty signed on 12 February 1986 and the allied Concession: Channel Tunnel Act 1987, s.1(1). The Treaty entered into force on 29 July 1987. It specifically stated that the fixed link “shall be financed without recourse to government funds or to government guarantees of a financial or commercial nature”, and that “The two Governments are not obliged to complete the construction or to operate the Fixed Link”: Arts. 1(1), 13(6). 21 Channel Tunnel Act 1987, s.2(2). 22 Ie. the private sector persons or bodies granted a concession to construct and operate the tunnel system: Channel Tunnel Act 1987, s.1(8). 23 Channel Tunnel Act 1987, s.2. 24 A technical evaluation of fixed link options in 1982 envisaged that “detailed studies” (drawing on previous “extensive design work”) for a bored tunnel should start without delay: Fixed Channel Link: Report of UK/French Study Group (Department of Transport, Cmnd. 8561, June 1982), para 4.10. In fact, four potential promoters undertook studies and submitted schemes between April and October 1985, which were then analysed by officials by December of that year: The Channel Fixed Link (Secretary of State for Transport, Cmnd. 9735, February 1986), paras. 2, 5 and 6. The Government also agreed with their French counterparts in March 1985 “that we should begin contingency work now on those elements of the treaty which would be common to any form of link chosen”: statement to the House of Commons, 2 April 1985 Hansard (HC), vol.76, col.1078 (Mr Nicholas Ridley, Secretary of State for Transport). 25 See definition of “deposited plans” and “deposited sections” in the 1987 Act, s.49(1).

595 Consultation 28. The Department for Transport, HM Treasury, the Office of the Deputy Prime Minister, the Local Government Association and Eurotunnel plc have been consulted on these proposed repeals, and have raised no objections.

32-195-296 01 February 2008

26 The 1987 Act, s.48.

596 ______

Reference Extent of repeal or revocation

______

Employment of Children Act 1973 The whole Act. (c.24)

Children Act 1989 In Schedule 13, paragraph 32. (c.41)

Children (Scotland) Act 1995 In Schedule 4, paragraph 19. (c.36)

Education Act 1996 Section 559(6). (c.56)

______

Employment of Children Act 1973 Background and purpose 1. The Employment of Children Act 1973 (“the 1973 Act”) was passed, amongst other reasons, to enable the Secretary of State to make statutory regulations27 governing the employment conditions for children and, more particularly, for their protection as regards the minimum age for working, hours of work, meal breaks and holidays, and the keeping of employment records. The 1973 provisions were explicitly designed to amend, and supplement, provisions in earlier legislation which allowed local education authorities (rather than central government) to make byelaws to cover this area of activity.28

2. The 1973 Act also contained new provisions relating to the supervision by local education authorities of children who are, or who are likely to become, employed (backed by powers in individual cases to prohibit or to impose conditions on employment).29 Overall, the Act was designed to supplement existing legislation which promoted the welfare and education of children of “school age”.30

27 In England and Wales, initially the Secretary of State for Social Services, and later the Secretary of State for Health (and, in Wales, the National Assembly for Wales). Prior to making regulations the Government intended “to consult very widely about what precisely they should contain”: 1 May 1973 Hansard (HL), vol.342, col.7 (2R, Baroness Young). Government saw, however, the then Bill’s early enactment as essential. 28 Principally section 18 of the Children and Young Persons Act 1933 and sections 28, 29 of the Children and Young Persons (Scotland) Act 1937. 29 The 1973 Act, s.2. 30 “child” is defined in the 1973 Act, s.3(2) by reference to the relevant Education Acts in operation either side of the Anglo-Scottish border.

597 3. By section 3(4) of the 1973 Act, the legislation was only to come into force on a date or dates appointed by order made by the Secretary of State. To date, no order under this section has been made, and the 1973 Act remains ineffective. Notwithstanding that position, Parliament has subsequently amended the 1973 Act on more than one occasion. For example, words in section 2(2) (which section relates to education authority supervision of child employment) were substituted by the Children Act 1989 (“the 1989 Act”), and a new subsection (2A) was inserted.31 For Scotland, further minor substitution of words occurred in 1995.32 The penalty provisions in section 2 (for a person failing to comply with a notice once served on him or her) were amended by the Criminal Justice Act 1982.33

4. Presently - and in the absence of the 1973 Act regime - section 18 of the Children and Young Persons Act 1933 (“the 1933 Act”) continues to provide for restrictions on the employment of children in England and Wales. There is set down by the Act a general prohibition on children being employed under the age of 14 years34, engaging in other than “light work”35, and on exceeding certain time limits and parameters. Certain of these prohibitions may be varied by local byelaws (for example, permitting employment of a 13-year old in specified categories of light work).36 Byelaws may also be made to control, for employment purposes, minimum age, working hours, rest periods, holidays and “other conditions”, so long as they do not detract from those prohibitions set out in section 18(1) which are absolute.

5. In Scotland similar provisions continue to apply through section 28 of the Children and Young Persons (Scotland) Act 1937 (“the 1937 Scottish Act”).37

6. The 1973 Act envisaged replacing the local byelaw-making power with a ministerial regulation-making power which would be exercised (for consistency) on a national basis.38 The Act also effected certain changes in the scope of the regulatory regime. As well as the existing categories for which byelaws can be made under the

31 Children Act 1989, s.108(5) and Sch.13, para.32. 32 Section 2(2A) of the 1973 Act, as amended, was further amended by Children (Scotland) Act 1995, s.105(4) and Sch.4, para.19. 33 Sections 35, 37, 38 and 46. 34 The 1933 Act, s.18(1), as amended by the Children (Protection at Work) Regulations 1998 (SI 1998 No 276), reg.2(2). 35 That is, work which would not be harmful to a child’s health, safety or development, or to school attendance or educational work experience: the 1933 Act, s.18(1),(2A). 36 Made under the 1933 Act s.18(2). 37 As amended by The Children (Protection at Work) Regulations 1998, reg.8. 38 Ie. separately for England and for Scotland.

598 1933 Act39, there would be added, first, a power to issue employment permits for children (without the holding of which, employment of a child would be prohibited) and, secondly, a system for recording by employers details of children employed by them.40 The Secretary of State was also to be empowered by statutory order to amend or repeal any provisions in a local Act which permitted the making of byelaws relating to the employment of children and which were “no longer required” because of other national legislation then in force.41

7. Section 2 of the 1973 Act (when in force) provides to local education authorities the power to serve notice on a child’s parent, or the person responsible for him or her, or a person employing (or being about to employ) a child, a notice requiring the provision to the authority of particulars of the employment.42 If it appears to an authority that, even if the employment is not unlawful, nonetheless because of its manner or extent it is “unsuitable for the child, by reference to his age or state of health, or otherwise prejudicial to his education”, the authority may serve a notice either prohibiting the particular employment or placing conditions upon it “in the interests of the child”.43 Breach of a notice to provide true particulars, or of one prohibiting (or conditioning) specified employment, would amount to a summary offence.44

8. Section 3 of the 1973 Act dealt only with citation, interpretation, repeal of enactments (specified in Schedule 2)45, commencement and territorial extent.

9. When the Bill46, which became the 1973 Act, was given its second reading in the Lords in May 1973 Lord Hylton indicated that its purpose was twofold.

39 And the 1937 Scottish Act. 40 The 1973 Act, s.1(3),(4) and Sch.1, amending section 18 of the 1933 Act and section 28 of the 1937 Scottish Act. 41 The 1973 Act, s.1(6). 42 Ie. particulars of “how the child is, or is to be, employed and at what times and for what periods”: section 2(2). 43 The 1973 Act, s.2(3). 44 The 1973 Act, s2(5). 45 The provisions to be repealed (of those still extant) were the Education Act 1944, s.59 (Act now superseded by the Education Act 1996 which repealed, in s.582(2), Sch.38, the whole of the 1944 Act), the Education (Scotland) Act 1962, s.137 (the bulk of which Act has now been repealed by the Education (Scotland) Act 1980, s.136(3), Sch.5) and the Education (Scotland) Act 1969, s.22 (the remainder of which Act has now been repealed by the Education (Scotland) Act 1980, s.136(3), Sch.5). 46 Introduced in the House of Commons as a Private Member’s Bill (by Mr Jeffrey Archer, MP). The Bill had Government support following, as it did, a Government review of the relevant law in 1970. The consultations at that time had shown “overwhelming support for [the Bill’s] two main objectives among organisations representative of the wide range of interests affected”: 1 May 1973 Hansard (HL), vol. 342 col. 7 (2R, Baroness Young).

599 10. First, it was designed to eradicate the lack of uniformity in the rules across the country governing the employment of children. Different local authorities had adopted different variants of byelaws. That meant that there was inconsistency as to the ages of children, and their working hours, falling within the protection regime. The codes also varied across local authority boundaries. A new regulation-making power would apply the protection regime uniformly across Great Britain. It would also create an enhanced measure of control through a new local education authority (“LEA”) employment permit scheme. It was anticipated that up to ¾ million children would be affected by the new protection regime.

11. Secondly, the legislation would provide to LEAs new power to prevent a child taking an unsuitable job prior to commencement of work, where the harm envisaged would be “something affecting the particular child in question”.47 The powers under the Bill would “apply to all children, regardless of what school they are attending and regardless of whether they are actually attending school at the time, provided that they are of the necessary age.”48

Current position 12. Since its enactment the 1973 Act has not been brought into force. The reason appears to be that the 1973 Act has been overtaken by two events: the making of the Children (Protection at Work) Regulations 1998 and the enactment of the Education Act 1996.

13. In 1998 the Children (Protection at Work) Regulations49 were made under the European Communities Act 1972. Those Regulations amended the Children and Young Persons Acts 1933 and 1963 and the 1937 Scottish Act in order to implement, in relation to children, the provisions of the 1994 EC Directive on the Protection of Young People at Work.50

14. In the context of the 1933 Act, the 1998 Regulations made a number of amendments.51 These principally were:

47 1 May 1973 Hansard (HL), vol. 342 cols. 4,5 (2R, Lord Hylton). Prior to the Bill, intervention was limited to the situation where employment had begun, and the powers then extended “only to children in certain specified schools” (col.5). 48 Ibid. 49 See above: SI 1998 No. 276. 50 Directive 94/33/EC. 51 See the 1998 Regulations, reg.2 in particular.

600 (a) raising the age limit from 13 to 14 years at which a child may be employed in any work, other than as employee of his parent or guardian in light agricultural or horticultural work on an occasional basis;

(b) replacing the prohibition against work likely to injure a child with one against anything other than “light work” (which is defined in the Regulations);52

(c) permitting the employment of children over the age of 13 years in categories of light work specified in local authority byelaws;

(d) specifying, in line with the 1994 EC Directive, the hours which a child over 14 years may work and the required rest periods.

15. The 1998 Regulations left in place the local byelaw-making power vested in local authorities, and did not seek to substitute the national regulation-making power envisaged in the 1973 Act. Nor did they replicate the supervisory powers to be vested in LEAs by the 1973 Act to prohibit or condition the employment of a particular child where that employment would otherwise be unsuitable (through his or her age or state of health), or prejudicial to his or her education.53

16. These two lacunae appear satisfactorily to be addressed in the following ways.

17. First, one of the principal reasons for enacting the 1973 Act was the concern that the 1933 Act, as then drawn, allowed individual local authorities to make byelaws relating to child employment which lacked uniformity as to child minimum age and as to working hours. The 1998 Regulations’ solution was not to impose a new regulatory regime, but to ensure that the existing regime was more narrowly demarcated.54

52 The 1998 Regulations, reg.2(4), inserting a new subsection (2A) into the 1933 Act, s.18. The definition was based on the 1994 EC Directive (above). 53 The 1973 Act, s.2. 54 In the debate on the Employment of Children Bill 1997/98 (a Private Member’s Bill, which was not enacted), the Parliamentary Under-Secretary for Health indicated to the House that the purpose of the recent 1998 Regulations was to bring the EC Directive into effect and to provide “greater standardisation” of approach by local authorities: 13 February 1998 Hansard (HC), vol. 306, col. 724. The Department of Health has issued model byelaws for the guidance of authorities: Ministerial written answer, 11 February 1999 Hansard (HC), vol. 325 cols. 348-349.

601 18. Secondly, the need for LEA supervisory powers had, by 1998, already been addressed through primary legislation. Section 559 of the Education Act 1996 (“the 1996 Act”),55 which is one of the provisions in that Act concerning the welfare of school pupils, provides power to LEAs to prohibit or restrict the employment of children. The section gave authorities the ability to serve notices in respect of registered pupils whom they believe are being “employed in such a manner as to be prejudicial to [the pupil’s] health, or otherwise to render him unfit to obtain the full benefit of the education provided for him”56, whereby the employment could be prohibited or restricted. Likewise, an authority could serve notice requiring the employer or parent to provide information about the employment.57 Failure to comply with a statutory notice was made an offence.58 The scope of the 1996 Act provision is very similar (although not identical) to that in the 1973 Act.59

19. The 1996 Act also provided for a number of miscellaneous savings, including making provision for byelaws already made under Part 2 of the Children and Young Persons Act 1933.60

20. Although the 1998 Regulations applied to Great Britain, a significant proportion of the Education Act 1996 applied to England and Wales only.61 Section 559 of the 1996 Act does not apply to Scotland, but similar provision in that country is made by section 28 of the 1937 Scottish Act.62

21. Section 559 of the 1996 Act expressly acknowledged the existence (and continuing legitimacy) of the 1973 Act, and its partial incompatibility with section 559. Section 559(6) stated that “This section shall cease to have effect on the coming into force of section 2 of the Employment of Children Act 1973”.

22. On this basis, it is clear that the provisions of the 1973 Act have now been overtaken by later legislation dealing with the key facets, and that there is no

55 Amended by the School Standards and Framework Act 1998, s.140(1), Sch.30, para.171. 56 Education Act 1996, s.559(1). 57 Education Act 1996, s.559(2). 58 Education Act 1996, s.559(3). 59 Section 559 is designed to be curative and not preventative; unlike the 1973 Act, s.2, it applies only to existing (and not to proposed) employment. 60 Education Act 1996, s.582, Sch.39, para.47. Part 2 of the 1933 Act covers sections 18 to 30 of that Act. 61 Education Act 1996, s.583(6). 62 As amended by, inter alia, The Children (Protection at Work) Regulations 1998 (SI 1998 No. 276) and The Children (Protection at Work)(Scotland) Regulations 2000 (SSI 2000 No. 149).

602 continuing need for the Act. That is reinforced by the fact that no attempt has been made since 1998 to bring the 1973 Act into force. The Education Departments (for England, Wales and Scotland) have each confirmed that they are content for the provisions to be repealed as they have no practical utility. Consequently, the whole of the 1973 Act may now be repealed on the basis that it has become unnecessary.

Consequential repeals 23. Likewise, the following allied provisions should also be repealed as now being unnecessary: (a) Children Act 1989, Sch.13, para.32 (amending the 1973 Act, s.2(2) and inserting s2(2A));63

(b) Children (Scotland) Act 1995, Sch.4, para.19 (amending the 1973 Act, s.2(2A)(b));64

(c) Education Act 1996, s.559(6) (disapplying section 559 of the 1996 Act on the coming into force of the 1973 Act, s.2).65

Extent 24. The 1973 Act extends throughout Great Britain.66

25. The 1989 Act, Sch.13, para.32 extends throughout Great Britain.67

26. The Children (Scotland) Act 1995, Sch.4, para.19 extends throughout Great Britain.68

27. The 1996 Act, s.559 extends to England and Wales only.69

Consultation 28. The Department for Education and Skills, the Department of Health, the Department for Work and Pensions, the relevant authorities in Wales and Scotland

63 See para.3 above. 64 See para.3 above. Other statutory amendments, which simply repealed provisions in the 1973 Act, can stand. 65 See para.20 above. 66 The 1973 Act, s.3. 67 The 1989 Act, s.108(11). 68 Children (Scotland) Act 1995, s.105(1),(4),(8). 69 The 1996 Act, s.583(6).

603 and the Local Government Association have been consulted about these repeal proposals.

32-195-456 01 February 2008

604 Reference Extent of repeal or revocation ______

Transport Act 1985 (c.67) Section 3(1). ______

Transport Act 1985

1. This note proposes the repeal of section 3(1) of the Transport Act 1985.

2. Section 3(1) provided that the body of traffic commissioners for each traffic area constituted for the purposes of the Public Passenger Vehicles Act 1981 should cease to exist. Moreover, the appointment of any person as traffic commissioner or deputy traffic commissioner immediately before section 3(1) came into force would thereupon come to an end.70

3. Section 3(1) came into force on 6 January 198671 whereupon, having taken effect, it ceased to be necessary. Accordingly it may be repealed on the basis that it is unnecessary.

Extent 4. The provision proposed for repeal extends throughout Great Britain.

Consultation 5. The Department for Transport and the relevant authorities in Wales and Scotland have been consulted about this repeal proposal.

32/195/447 01 February 2008

70 The Public Passenger Vehicles Act 1981, s 4 (as substituted by the Transport Act 1985, s 3(2)) provides for there to be a single traffic commissioner for each traffic area. Previously there had been three traffic commissioners for each traffic area. 71 Transport Act 1985 (Commencement No 1) Order 1985, SI 1985/1887.

605