Friday, 20 December 2019

Private Legislation, Part the First


There is a little known, though historically significant, class of Parliamentary Bill of which in the Fifty-Eighth Parliament there are currently twice as many pending as the other kind [1].

In this article we will consider the process of getting a Private Act passed, up to the point at which the Opposed Bill Committee (or Unopposed Bill Committee) is about to sit. That sounds like a very brief period of time, but, amazingly, it requires a whole blog post just to get that far!

We will therefore go on a little tour involving petitions, examinations, more petitions, the Committee of Selection, the Standing Orders Committee, the Court of Referees, the Unopposed Bill Committee, and Select Committees on Opposed Bills. And some proceedings in the Chamber too...

In a subsequent post, probably on Monday, we will go further - hopefully all the way to Royal Assent (but no guarantees). A bit like the London County Council (General Powers) Bill in 1915, an instruction has been given to divide this blog post :-)


Types of Bills

There are actually four types of Bills (which go on to produce three types of Acts, it would be too simple for it to line up exactly).

The Bills readers will be most used to, for example the European Union (Withdrawal Agreement) Bill which is being debated as I proof read this, is the public bill. These produce Public General Acts, which are laws that affect the public at large, or the state in general, or similar.

The second category is the private bill. These are what this article (well and the next kind too) is about. Promoted by private individuals or organisations to change the law in so far as it affects that individual, they have a bespoke process to ensure the rights of others are taken in to account. These ultimately end up as private Acts [2]

Then we have the personal bill. Really just a sub-type of the private bill, these affect effectively one or two individuals only. Historically these were surprisingly common, the last was the George Donald Evans and Deborah Jane Evans (Marriage Enabling) Bill, an example of a Bill to permit marriage within a prohibited degree of consanguinuity or affinity [3]. These ultimately become personal Acts [4]

The final category is the hybrid bill. These are public bills which have unusually specific effects on a subset of individuals and organisations and therefore proceed as both a public bill and a private bill, with necessary adaptions of both processes. The Channel Tunnel, Crossrail, and HS2 were and are being proceeded with this way (though the HS2 phase 2B bill has yet to be revived in this Parliament). These ultimately become Public General Acts and at the end look identical to all other public Acts.

Public General Acts are numbered with upright Arabic numeral chapter numbers, e.g. the European Union (Withdrawal) Act 2018 is "2018 c. 16", being the sixteenth Public General Act passed that year. Private Acts are numbered with Roman numeral chapter numbers, e.g. the Haberdashers' Aske's Charity Act 2016 is "2016 c. ii". Finally, personal Acts (which are invariably not printed) use italic Arabic numerals, so the George Donald Evans and Deborah Jane Evans (Marriage Enabling) Act 1987 is "1987 c. 1".

Confusingly, we note (and ignore) that section 3 of the Interpretation Act 1978 provides that "Every Act is a public Act to be judicially noticed as such, unless the contrary is expressly provided by the Act."

So, you want a Private Bill?

In parallel with the normal Standing Orders of both Houses - called formally the Public Business Standing Orders - there are a set of Private Business Standing Orders. These can be teased apart in the Commons thusly: the Public Business SOs are invariably cited as "Standing Order No. 9", whereas the Private Business SOs are "Standing Order 9". This will be important as we continue. [5]

The first step to getting your private bill is to deposit a petition for it. These need to be in a specific form, and need to pray that Parliament give you your bill, as required by Standing Order 2
No private bill shall be presented to the House unless a petition for the same, headed by the short title of the bill and signed by the parties, being promoters of the bill, or some of them, has been previously presented to the House, with a printed copy of the proposed bill annexed.
But you can't just rock up any day and present your petition. Standing Order 2A provides that
Every petition for a private bill shall be presented to the House by being deposited in the Private Bill Office.
No such petition shall be received after 27th November (or if that day is a Saturday or a Sunday, the first Monday following that day) unless it has been endorsed by the Chairman of Ways and Means.
So you need to get in on time - and your window for this year has passed. We also see the first reference here to the Chairman of Ways and Means (in the Lords the same duties are undertaken by the Lord Chairman of Committees). As well as being the most senior of the three Deputy Speakers, the Chairman also has specific responsibility relating to private legislation, which we will return to as it naturally arises.

So far so good. However, this isn't cheap. Just to get your bill read a First Time there is a fee of  £ 4,000 [6]. And it might not even get that far!

The Examination

Because private legislation seeks to confer rights in deviation from the general law, the promoters of them have specific duties. Some of these are quite esoteric, some obvious common sense, and some a mix of the two. Unsurprisingly for a process of great ancienty, it has its own quirks to. These are covered in Standing Orders 4 to 47 (yep, forty-three of them!), and include requirements that
  • notice be given of the bill in newspapers in the area the bill will affect, per Standing Order 10, by 11th December
  • notice be given to the owner of any land proposed to be compulsoraily acquired, per Standing Order 13, by 5th December
  • notice be given to anyone who owns or occupies the proposed frontage of a tramway [7], per Standing Order 14, by the same date
  • notice be given to mill owners where water is to be abstracted, per Standing Order 16, which I will include verbatim because it is one of my favourites:
On or before 5th December in the case of a bill whereby it is proposed to authorise the impounding of the waters of, or the abstraction of water from, any stream at a point at which the stream is not navigable, notice in writing of the proposal shall be given to the owner, lessee, and occupier of each mill, factory or other work using the waters of the stream at any point within a distance, to be measured along the course of the stream, of 32 kilometres below the point at which the water is intended to be impounded or abstracted, unless, within a less distance then 32 kilometres, the waters flow into or unite with a navigable stream, and then only to the owner, lessee, and occupier of each such mill, factory or other work as aforesaid which is situate between the said point and the point at which the waters of the stream flow into or unite with the navigable stream; and the notice shall state the name (if any) by which the stream is known at the point at which the water is intended to be impounded or abstracted, and also the district in England, London borough or county or county borough in Wales, and the parish or community, in which such point is situate, and the time and place of deposit of plans, sections, and books of reference with the proper officers of councils of counties, metropolitan districts, unitary districts or London boroughs or (in Wales) counties or county boroughs.
But beware, Standing Order 24 says giving notice on a Sunday is invalid.

So, you've given all your notices, and deposited plans if necessary as required by Standing Orders 26 to 37A, and you've sent copies of the bill to everyone required by Standing Orders 38 to 44, and you've done the things Standings Orders 45, 46, and 47 require. Now what?

Now the Examiners will check you've done it correctly. This is by way of a hearing before one or both of the Examiners (each House appoints one, I think historically there were multiple, but today it seems to usually be the Counsel to the Speaker and the Counsel to the Lord Chairman wearing different hats). These are appointed pursuant to Standing Order 69, viz.
There shall be one or more officers of this House, to be called "The Examiners of Petitions for Private Bills," who shall be appointed by the Speaker.
Their duties are set out by Standing Order 70 as being
Every petition for a private bill shall stand referred to the Examiners and the Examiner shall report to the House whether Standing Orders 4 (Contents of notice) to 59 (Cross sections of roads, etc.), so far as applicable, have or have not been complied with; and, when they have not been complied with, he shall also report to the House the facts upon which his decision is founded, and any special circumstances connected with the case.
(it is also possible for the House to refer public bills to the Examiners on a case by case basis too)

Standing Order 71 says that the Examination must occur on 18th December
The examination of the petitions for private bills which have been presented on or before 27th November shall commence on 18th December or, if that day is a Saturday or a Sunday, on the first Monday following that day.
but, I think because originally that date was not actually fixed, Standing Order 72 also requires the Examiners to give notice of the date of the Examination, viz.
The Examiner shall give not less than seven clear days' notice in the Private Bill Office of the day appointed for the examination of each petition for a bill; and if the promoters do not appear at the time when a petition comes on to be heard, he shall strike it off the General List of Petitions and shall not re-insert it except by order of the House.
Notice that sanction: woe betide any promoter who doesn't appear when called!

At the Examination, proof on oath needs to be provided that the Standing Orders have been complied with, including submitted examples of newspaper advertisements and so on. Now, if you are lucky your bill will pass this stage and proceed on to First Reading. But what if it doesn't? What if, for example, you gave notice to a mill owner on 6th December or missed that one that was 31,999 metres away? [8]

The Standing Orders Committee

Standing Order 103 provides (in part)
There shall be a committee, to be designated "The Standing Orders Committee," consisting of the Chairman of Ways and Means (who, when present, shall be ex officio chairman of the committee), the Deputy Chairmen of Ways and Means, and eight members nominated by the Committee of Selection; three shall be a quorum, and the committee shall have the assistance of the Counsel to the Speaker.
And Standing Order 104 provides (in part) that
All reports from the Examiner in which he has reported that the standing orders have not been complied with shall be referred to the Standing Orders Committee; and that committee shall report to the House whether such standing orders ought or ought not to be dispensed with, and whether in its opinion the parties should be permitted to proceed with their bill, or any portion thereof, and upon what terms and conditions, if any.
So you can argue your case here. If the Committee agree with you, perhaps by agreeing to change the petitioning period (see below) for your neglected mill owner or similar, then a minute entry is made in the Votes & Proceedings and your bill can proceed. If not, try again next year!

Standing Orders 105, 106, and 107 also provide for various other requests for rules to be waived (e.g. if you didn't attend at the Examination) to stand referred to the Committee.

First Reading

This, thankfully, is a formality. Well once one thing is done, viz. we need to decide which House your bill will begin in. And this isn't up to you, instead, Standing Order 81 says that
The Chairman of Ways and Means or the Counsel to the Speaker shall, on or before 8th January each year, hold a conference with the Chairman of Committees of the House of Lords or with his Counsel for the purpose of determining in which House of Parliament the respective private bills should first be considered.
This actually normally occurs very shortly after the Examination, and indeed has already occurred this year: the Chairmen allocated one bill to each House.

Standing Order 163 requires that presentation and First Reading occur on 21st January or the first sitting day thereafter.

And we are off!

Second Reading

Like all bills, your bill needs to be read a Second Time before any further progress can be made. Standing Order 170 sets down the minimum time period for this
There shall be not less than four clear days between the first and second reading of any private bill.
and then Standing Order 198 effectively imposes a maximum
(1)  Not less than three clear days' notice in writing of the day proposed for the second reading of a private bill shall be given to the clerks in the Private Bill Office by the agent for the bill; and no such notice shall be given until the day after that on which the bill has been ordered to be read a second time.
(2)  In the case of a bill originating in this House, no such notice shall be given for a day later than the eighth day after that on which the bill has been read the first time:
  Provided that when the House has resolved to adjourn to a day beyond such eighth day notice for the second reading may be given for the day to which the House has adjourned or the following day.
Second Reading, indeed most Chamber proceedings on private bills in the Commons, are normally taken after prayers "on the nod", as provided for by Standing Order No. 20 ("Time for taking Private Business"). However, if objected to, the Chairman of Ways and Means can either simply nominate another "on the nod" session and try again or can direct that proceedings be taken for three hours, starting at the times specified in Standing Order No. 20 (4), suspending the public business then underway.

So, if MPs object to your bill, you need to find someone to defend it in the Chamber, and then coordinate with the Chairman and with the Government Business Managers to get it debated.

Rather than simply shouting object, recalcitrant MPs can instead per Standing Order No. 20 (2) put down a "blocking amendment" providing they renew it every seven days.

(The procedure in the Lords is quite different and proceeds more consensually)

Committees

Let's assume your bill survived the Commons thus far. Now, here we meet a fork in the road? Remember all those notices you had to send. Well, the people you sent them too might object to your bill (or parts of it, or want changes). Perhaps that mill owner has an issue with you appropriating his water?

Well, Standing Order 171A provides (in part) that they have until 30th January to get their objections in [9].
Every petition against a private bill originating in this House to which paragraph (1) of Standing Order 163 (Presentation of bills) applies, and which is not a bill the examination of the petition for which has been adjourned until after 20th January, shall be presented on or before 30th January; and every petition against any other private bill shall be presented not later than the tenth day after the first reading of the bill or, if the House is not sitting on that day, on or before the next day on which the House sits.
This happens in parallel with the First Reading process, and in theory could occur in parallel with Second Reading too.

If there were no petitions then, unless the Chairman of Ways and Means thinks there is something "odd" about your bill it goes to the Unopposed Bills Committee. If there are petitions, the Committee of Selection has to nominate an Opposed Bill Committee to hear them.

We will consider opposed bills first, because the unopposed procedure is much much simpler.

Opposed Bills Committees

The proceedings of Opposed Bill Committees are broadly governed by Standing Orders 120 to 131A, and also a few centuries of established practice and principles. Which means we need to do something else first, naturally.

The Committee of Selection

Before that we need to consider the Committee of Selection though. Although most of us encounter this committee in its role of appointing the Departmental and Domestic Select Committees, no where will one find this committee in the Public Business Standing Orders. Instead, we turn to Standing Orders 109 to 118.

Having been read a Second Time, your bill first stands committed to this committee by Standing Order 109
There shall be a committee, to be called the Committee of Selection, consisting of nine Members, of whom three shall be a quorum: and every private bill on committal shall stand referred to the committee.
Dating back to the era of hundreds of railway bills and so on, the Committee has the power under Standing Order 110 to group bills so one committee can process a group of similar measures. Unsurprisingly, this has fallen into disuse. [10]

Under Standing Order 111, the Committee must appoint a Select Committee of four members, none of whom have an interest in the matter, to consider the bill and commit it to them. Under Standing Order 113 it also sets the date of the first meeting of the Opposed Bill Committee (after which the committee regulates its own procedure, broadly).

Opposed Bills Committees (take two!)

Four MPs have been appointed. The first on the "list" becomes the Chairman of the Opposed Bill Committee. Off we go!

Because of their pseudo-judicial nature, these Select Committees have some peculiarities. For one, no MP can sit on one without completing the declaration, contained in Standing Order 120, viz.
I,  having been selected by the Committee of Selection to serve as a member of the Committee on the.........................Bill or on Group.........................of Private Bills, hereby declare, that I have no personal or constituency interest in the said bill or any bill included in the said group; that I recognise my obligation to attend every meeting of the Committee; and that I will never vote on any question which may arise without having duly heard and attended to the evidence relating thereto.
Secondly, the quorum of such a Select Committee is three, i.e. the absence of more than a single member prevents a sitting, provisions for which are contained in Standing Order 121.

Standing Order 123 provides for certain Opposed Bill Committees to have the assistance of the Counsel to the Speaker, namely when
In the case of an opposed bill promoted by a local authority containing clauses by which it is proposed to create powers relating to police, sanitary or other local government matters in conflict with, deviation from, or excess of, the provisions of the general law, the committee to whom the bill is referred shall, when considering such clauses as aforesaid, have the assistance of the Counsel to the Speaker.
Standing Order 125 requires the Select Committee to report to the House if for any reason it isn't sitting on a day when the House sits,
Every committee on an opposed private bill shall report to the House the cause of any adjournment over any day on which the House is to sit.
Standing Order 128 prohibits the Committee from considering anything not in a proper petition, which was probably once necessary in the days of multitudinous private legislation to preserve everyone's sanity, viz.
No petition against a private bill shall be taken into consideration by the committee on the bill, which does not distinctly specify the ground on which the petitioner objects to any of the provisions thereof; and the petitioner shall be heard only on the grounds so stated; and, if it appears to the committee that such grounds are not specified with sufficient accuracy, it may direct that it shall be provided with a more specific statement, in writing, but limited to such grounds of objection so inaccurately specified.
But Standing Order 130 says that it is perfectly proper for a petitioner to raise in the Commons the same issues raised, and disposed of in the Lords (and Lords Private Business Standing Order 112 provides likewise), i.e. everyone gets in principle two bites at the cherry
A petitioner against a bill originating in the House of Lords who has discussed clauses in that House shall not on that account be precluded from opposing the preamble of the bill in this House.
And finally, if for some reason no petitioners turn up, a bit like non-attendance at the Examination, then too bad, and the bill turns back into an unopposed one per Standing Order 131
In the case of any opposed private bill, in which no party has appeared on a petition against the bill or on a petition complaining of amendments as proposed in the filled-up bill, or all parties who have so appeared have withdrawn their opposition before the evidence of the promoters has been commenced, the committee to which the bill has been referred shall forthwith refer back the bill, with a statement of the facts, to the Committee of Selection which shall treat it as an unopposed bill.
Amazingly, even that isn't it. The Select Committee on an Opposed Bill actually has slightly fewer general powers than the Public Bill Committees, since Standing Order No. 65 does not apply to them (though you wouldn't know it from the wording!)
All committees to which bills may be committed or referred for consideration on report shall have power to make such amendments therein as they shall think fit, provided they be relevant to the subject matter of the bill: but if any such amendments shall not be within the long title of the bill, they shall amend the long title accordingly, and report the same specially to the House.
Now, this could be circumvented by an instruction, save that Standing Order 175 prevents instructions which would require a new petitioning period,
Where it is sought by a proposed instruction to authorise or require a committee on a private bill to make an amendment in the bill, the Speaker, if he is of the opinion that the amendment is such that it could not have been inserted except upon petition for additional provision, shall decline to propose the question on the instruction to the House
This is, of course, necessary to do fairness to petitioners.

Anyway, the task of the Select Committee is to methodically consider the petitions and determine whether any are valid (and amend the bill accordingly), then to consider the clauses of the bill itself insofar as they need tweaking (e.g. on grounds of public policy), and then finally to do a curious task called proving the preamble, which we will consider next time.

Locus Standi

This concept isn't actually called locus standi any more, apparently it was confusing. But I can't remember the new name so we're stuck with the Latin [11].

Only petitioners actually affected by the bill can petition. So, for example, while our putative mill owner can object to the abstraction of water, the owner of a mill on a different river can't. Here a slight variance with the Lords procedures develops, but the Commons process is the stranger so we will stick with it. [12]

The promoters can object to any petitioner's locus before the petition is heard. These disputes stand referred to probably the most peculiar of peculiar Commons Committees: the Court of Referees.

Established by Standing Order 89 thusly,
(1)  There shall be a Court of Referees on private bills consisting of the Chairman of Ways and Means (who, when present, shall be ex officio chairman of the court), the Deputy Chairmen of Ways and Means and the Counsel to the Speaker with not less than seven other persons, who shall be members of this House, and shall be appointed by the Speaker for such periods as he may think fit.
(2)  Three referees shall be sufficient to constitute the court.
Standing Order 90 then gives it its functions and powers
The Court of Referees shall decide upon all petitions against private bills, as to the rights of the petitioners to be heard upon such petitions, without prejudice, however, to the power of the committee to which the bill is referred to decide upon any question as to such rights arising incidentally in the course of its proceedings.
Then Standing Orders 91 to 102 cover all sorts of corner cases, ranging from tranways (again) to river authorities and forest conservators.

Any petitioner found not to have locus by the Court is not entitled to be heard by the Select Committee. In the Lords, and on Hybrid Bills in the Commons too, the Select Committee decide these questions themselves. Quite why there is such a baroque procedure for private bills escapes me.

The Unopposed Bill Committee 

This is appointed by the Committee of Selection in a rather curious way (I assume to allow members to be rotated on and off without them losing all will to continue) by Standing Order 111 (2),
(2)  The Committee of Selection shall refer every unopposed bill which stands referred to it to the Committee on Unopposed Bills which shall consist of seven members, namely the Chairman of Ways and Means, the Deputy Chairmen of Ways and Means, and four members selected by the Chairman of Ways and Means from a panel to be appointed by the Committee of Selection at the commencement of every session.
Only three Standing Orders govern these much simpler committees, viz. 132, 133, and 134, and these contain nothing greatly exciting. All in all, the process here is much shorter. The Unopposed Bill Committee essentially just performs the second and third tasks of an Opposed Bill Committee identified above. It is possible for the Committee to reject the bill on grounds of public policy, if the promoter will not accept amendments, or if the preamble is not proved, despite the lack of any 'parties opponent'.

Two curiosities in the Lords practice need to be pointed out though. For one, the "Committee" consists solely of the Lord Chairman of Committees, which is stretching the concept a little. Secondly, in the Lords rather than the Opposed Bill Committees dealing with the general purport of the bill, the bill is subsequently re-referred to the Unopposed Bill Committee (aka the Lord Chairman).

Concluding matters

Amazingly given the comprehensive nature of the above, there are plenty of things I've left out (and we're only half way through the process!). Maybe I'll come back and fill in the gaps one day.

Anyway, stay tuned for the next part of the story: actually dealing with the petition of our disgruntled mill owner!

A final curio

An MP appointed to an Opposed Bill Committee is still required to so serve, even if suspended from the service of the House, per Standing Order No. 45 (2)
Suspension from the service of the House shall not exempt the Member so suspended from serving on any committee for the consideration of a private bill to which he may have been appointed before the suspension.

Colophon

Standing Order extracts are from the 2011 edition of the Private Business Standing Orders, there are subsequent amendments but they're not important to us.

[1] Well at least there was on Friday 20th!
[2] There is a sort of nominal distinction between local Acts and other private legislation, but we will ignore it.
[3] I included that point just so I could write consanguinuity.
[4] Confusingly some old authorities call these private Acts, and call private Acts other things.
[5] The numbering of the PBSOs is broadly the same between both Houses, though there are differences. Henceforth we will use the Commons numbering, mostly because that's what Erskine May does.
[6] It gets remitted to £ 1,000 if you're a charity, as detailed in the Table of Fees annexed to the PBSOs; all future references to fees refer to that table.
[7] For the avoidance of doubt, a tramway is not a tramroad. No I'm not making this up.
[8] For what it is worth, Standing Order 75 provides for persons to submit Memorials to the Examiners "complaining of non-compliance", and if submitted before 17th December Memorialists have a right to be heard by the Examiners. There is also the slightly peculiar Standing Order 76, which I'm ignoring, this is already long enough.
[9] There are some exceptions to this rule, but in general petitioners always have ten days between First Reading and the last day to submit petitions, so our hypothetical mill owner who we forgot to notify on time might be given until 31st January to give him the "same" length of time.
[10] I could imagine it theoretically being used if several local authorities all promote bills to achieve the same thing at the same time.
[11] I am desperately upset by this. Not.
[12] Hybrid bills in the Commons actually follow an analogue of the Lords procedure for reasons that elude me.

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