Monday, 30 December 2019

Private Legislation, Part the Second


This is part two, following on from a previous article. You will want to read that first, and note that when I said the follow-up would be on Monday, I really meant a week Monday [0].

When we finished, our putative bill (which for some reason has attracted the ire of a mill owner on a nearby stream, as our example petitioner against it) had just been committed to an Opposed Bill Committee, and we're going to assume that the Court of Referees have decided the mill owner has locus standi.

Here, we will make it as far as the conclusion of the Third Reading of the bill in the first House (which I generally assume to be the Commons out of a desire to keep this missive as un-prolix as possible!). The final (hopefully) instalment will cover the slight differences on arrival in the second House, how disputes between the Houses are managed, and a variety of overarching ideas that have been intentionally omitted thus far [1].

Opposed Bills Committees (take three... ish)

So, we have our Bill Committee, and before lies our bill and the petition of a mill owner. Now, our party opponent [2] can either oppose the whole bill, or specified clauses [3].

Now, as usual we come to a private legislation procedure peculiarity (and this is, as anyone who has read the first article will know, actually a fairly anodyne one), viz. Standing Order 177 [4] appears to say a Committee can sit after six days notice, i.e.
There shall be an interval of not less than six clear days between the committal of an opposed private bill and the sitting of the committee thereon, except that, in the case of an opposed personal bill, the interval shall be not less than three clear days.
However, HM Government have to be given an opportunity to report on the bill, such reports standing referred to the Committee by Standing Order 144
(1)  All reports upon a private bill, or its objects, which are-
(a)  made by a minister of the Crown, and 
(b)  presented to the House by being deposited in the Private Bill Office, shall stand referred to the committee on the bill.
(2)  Where a recommendation is made in any such report, the committee-
(a)  may, if it thinks fit, hear a person nominated by the minister in explanation of the recommendation, and
(b)  shall note the recommendation in its report and, if it does not agree to such recommendation shall state its reasons for dissenting.
(paragraph (2) there is an important deviation from a general rule which we will consider in a moment). Erskine May [5] notes that fourteen days should be allowed for this (though this isn't technically mandatory). More important, however, is Standing Order 158, viz.
In the case of any bill containing provisions whereby it is proposed-
(a)  to direct any application of the property of any charity, or to affect the patronage or the constitution of any charity, or the right of any charity to any property; or,
(b)  to set up, or to take power to set up, or to take over or interfere in the management of, any school or other educational foundation or institution, or to levy any rate or raise money for any such purpose,
notice in writing of the bill shall be given to the Attorney General, and no such bill shall be taken into consideration by the committee on the bill until a report from the Attorney General on the bill has been presented to the House (by being deposited in the Private Bill Office).
It would seem that that notice is not actually required to be sent at the time all the other ones are (except insofar as the Attorney-General is on the list of government departments to be informed) but it is not in order for a Committee to proceed without his report.

As an aside, we note that the ministerial report on human rights compliance required by Standing Order 169A needs to be submitted much earlier, by the second day after First Reading. No doubt to ensure the House is fully informed when reading the bill a Second Time.

The procedure when we do actually get to a sitting of the Committee is somewhat akin to a judicial proceeding. Petitioners both for and against the bill have the right to be heard, either by Agents [6], counsel [7], or propria personai [8]. Where a petitioner has prayed against the preamble, evidence needs to be led from witnesses to prove the need for the bill, etc., and those witnesses can be cross-examined by the petitioners and then re-examined by the promoters, and the petitioners themselves can lead witnesses. The same applies for petitions against clauses [9]. Witnesses are heard on oath, as provided for by the Parliamentary Witnesses Oaths Act 1871, and Opposed Bill Committees still regularly use this power unlike most other Commons Committees. For reasons that defeat me, the equivalent power for Lords Committees is contained in the Parliamentary Witnesses Act 1858.

Broadly, the Committee regulates its own procedure and orders proceedings in whatever is the most convenient way. For example, the Select Committees on various parts of HS2 and Crossrail would normally consider petitions not in the order presented (nor in how they related to the strict text of the bill) but instead by their geographical location, systematically working their way along the proposed railway line. However, one important limitation is provided by Standing Order 136 (which we noted Standing Order 144 slightly modifies)
A committee on a private bill shall not, without express authority from the House, receive evidence other than that which may be adduced by or on behalf of any parties entitled to be heard.
That is the Committee can not call witnesses of its own, nor admit what would be in effect an amicus curiae brief.

Further, having now advanced beyond that stage (this being the preserve of the Examiners), the Committee are prohibited by Standing Order 139
A committee on a private bill shall not examine into the compliance or non-compliance with Standing Order 4 (Contents of notice) to 68 (Proof of consent of directors, etc., who are named in bill).
from enquiring into whether all the various notices and consents have been dealt with. In effect this is to stop people having multiple "bites at the cherry".

This being done, the Committee will need to sit in private to decide the petition. It has the option of deciding that as a result of it [10] the preamble is "not proved". This effectively kills the bill unless (and this is quite rare) the House recommits it to have the preamble reconsidered. Indeed, this very action was attempted - and defeated - when the first attempt at Crossrail was nixed this way.

Or it can make amendments. These might come from the promoters themselves, perhaps as a result of a private agreement, or from the Committee. Or, finally, the Committee might accept an "undertaking" from the promoters in favour of the petitioners [11], on which the petitioners have agreed to withdraw their petition [12].

Having done all this, one final matter has to be done: the preamble needs to be proved. This is done by putting some proper official of the promoters on oath and asking him to prove it is true, e.g. as was done for the wonderfully esoteric Faversham Oyster Company Fisheries Bill in the Lords Unopposed Bill "Committee" in 2016 [13]
90. MR ALASTAIR LEWIS: All I need to do now is go through the formalities as it were, and ask Mr Cramp to swear the preamble.
91. MR DUDLEY CRAMP: I swear by almighty God that the evidence I shall give before this Committee shall be the truth, the whole truth and nothing but the truth, so help me God.
92. MR ALASTAIR LEWIS: Is your name Dudley William Cramp?
93. MR DUDLEY CRAMP: Yes, it is
94. MR ALASTAIR LEWIS: Are you the Company Secretary of the Faversham Oyster Fishery Company, the promoter of this Bill?
95. MR DUDLEY CRAMP: I am.
96. MR ALASTAIR LEWIS: Have you read the preamble to this Bill?
97. MR DUDLEY CRAMP: I have
98. MR ALASTAIR LEWIS: Is it true?
99. MR DUDLEY CRAMP: Yes.
100.MR ALASTAIR LEWIS: Thank you, my Lord.
101.THE CHAIRMAN: Thank you. That concludes our proceedings and I will report the Bill to the House with amendments.
102.MR ALASTAIR LEWIS: Thank you very much, my Lord.

Report of the Committee

The Lords Standing Orders contain somewhat less stringent monitions on the chairman of the Committee when reporting the bill compared to the Commons ones, but the underlying principles are identical.

The Committee must in some sense report the bill [14], and may additionally make one or more "Special Reports". 

First, complete minutes must be produced (indeed, these are produced on an on-going basis normally) by Standing Order 138, by the Clerk, thusly
The clerk attending a committee on a private bill shall enter on the minutes of the proceedings of the committee the names of the members attending the committee, and, if any division takes place in the committee, the names of members voting in such division, distinguishing on which side of the question they respectively vote.
Then by Standing Order 141, the Chairman of the Committee (which for an Unopposed Bill would be the Chairman of Ways and Means himself) must cause, in manuscript, the committee amendments on the bill to be interlined, sign the whole thing, and lay it before the House, viz.
The chairman of a committee on a private bill shall sign, with his name at length, a printed copy of the bill (to be called the committee bill), on which the amendments made in the committee are to be fairly written; and also sign, with the initials of his name, the several clauses added in the committee.
A strict reading of the Standing Orders implies this ought to happen even if the committee find the preamble not proved, but that seems entirely pointless to me and I suspect doesn't happen. Then, by Standing Order 142,

(1)  Unless the parties promoting the bill have informed the committee that it is not their intention to proceed with the bill, the chairman of a committee on a private bill, when reporting the bill to the House, shall report whether the allegations of the bill have been found to be true.
I.e. the Chairman must specifically report the Committee's findings on the proof of the preamble;
(2)  Where any alteration has been made in the preamble of the bill, the chairman shall report such alteration, together with the grounds of making it, and shall report whether the allegations contained in the preamble of the bill, as amended, have been found to be true.
And any changes thereto, e.g. the elimination of an element by virtue of a clause being omitted or modified on amendment must be especially reported; and
(3)  Where the parties promoting the bill have informed the committee that it is not their intention to proceed with the bill, the chairman shall report to the House accordingly when reporting the bill.
Where the promoters, but not the Committee, have pulled the bill, the House must be informed of this eventuality too.

The minutes as required to made up are laid with the bill by Standing Order 145,
The minutes of the proceedings of a committee on a private bill shall be brought up and laid on the Table of the House, with any report of the bill.
and any evidence by Standing Order 145A (e.g. those ministerial reports noted earlier, or an affidavit supporting a contentious element of the preamble, or similar)
The minutes of the evidence taken before a committee on a private bill shall be laid on the Table of the House and ordered to be published.
Progress! In the event the bill is to re-committed for any reason, an obvious example being where the promoters have entered into more negotiations and wish to make further amendments to reflect those, broadly the same procedure is followed again (though one assumes there will be vastly fewer provisions). The procedure called a "Petition for Additional Provision", which is in effect a more complete version of this procedure, we will worry about infra.

The next stage in the Commons would be Consideration (aka Report Stage); there being no Consideration of Private Bills in the Lords the Lord Chairman is instead given a power to commit Private Bills to the Committee of the Whole House if necessary by (Lords) Standing Order 94
The Chairman of Committees may, if he thinks fit, propose to the House that any private bill shall, after it has been reported, be re-committed to a Committee of the Whole House. But no private bill re-committed to a Committee of the Whole House under this standing order shall by reason of such re-commitment be allowed to proceed as a public bill.

Consideration

On the assumption that no attempt to recommit your bill has been attempted, it will be set down for Consideration in the Commons [15] not less than three clear days later per Standing Order 181,
In the case of a private bill ordered to lie upon the table, there shall be an interval of not less than three clear days between the report and the consideration of the bill, and, where any bill does not contain the several provisions required by the standing orders or contains any provisions which contravene standing orders, the Chairman of Ways and Means shall, before the consideration of the bill takes place, so inform the House or signify the same in writing to the Speaker.
I haven't got the foggiest how a bill could make it this far and still not comply with the Standing Orders, but if it does there's a procedure for flagging this up [16].

Now, report stage normally means any MP can propose amendments. But like how the power of committees to amend these bills is circumscribed to prevent injustices, so is the power of the House as a whole, by the interaction of Standing Order No. 75 (so, public) [17]
Upon the consideration of a bill on report no amendment which could not have been proposed in committee without an instruction from the House may be proposed unless it has been authorised by a resolution of the House.
and Standing Order 175 (discussed in the previous article). In addition, amendments by the promoters, for example to correct an infelicity or to give effect to an undertaking (where it is simple enough to not require re-commitment) are subject to a notice period by Standing Order 204
When it is intended by the promoters to offer any clause or to propose any amendment on the consideration of any private bill ordered to lie upon the table, or any verbal amendment on the third reading of any private bill, not less than one clear day's notice thereof shall be given to the clerks in the Private Bill Office.
and to the somewhat confusing on first glance (but obvious once you think about it) requirements of Standing Order 182
If the Chairman of Ways and Means informs the House or signifies in writing to the Speaker that, in his opinion, a clause or amendment intended to be proposed by the promoters on the consideration of a private bill ordered to lie upon the table is such that it ought not to be entertained by the House without referring the same to the Standing Orders Committee, the clause or amendment shall stand referred to that committee, and no further proceeding shall be had in relation thereto until the report of that committee is brought up.
Effectively, if there is some potential injustice to a party affected by the bill by an amendment, the Standing Orders Committee (remember them?) will investigate it and decide what to do, as stipulated by Standing Order 107 (there truly is a Private Business Standing Order for all solemnities)
When any clause or amendment proposed on the consideration of any private bill ordered to lie upon the table stands referred to the Standing Orders Committee, it shall report to the House whether or not the clause or amendment is such as may properly be adopted by the House or whether the bill should be recommitted.
In addition, before this can even occur the promoters must pay to have the bill printed (if it was amended) per Standing Order 179
Every private bill, as amended in committee, shall be printed at the expense of the promoters and copies thereof delivered to the Vote Office for the use of members of the House, not less than three clear days before the consideration of such bill; and, in the case of a bill originating in this House, a copy thereof as so amended, printed and covered in like manner as the House copy deposited under Standing Order 163 (Presentation of Bills), shall be deposited in the Private Bill Office, and shall become the House copy in lieu of the copy deposited under the said standing order.
And this printed bill must be examined to check it matches the one signed by the Committee Chairman, per Standing Order 203
The House copy of every private bill printed as amended in committee and deposited under the provisions of Standing Order 179 (Printing of bill as amended in committee) in the Private Bill Office shall be examined with the committee bill by the clerks of that office, and the examining clerks shall endorse thereon a certificate of such examination
Oh, and by Standing Order 180, one needs to send it to any government departments who were originally sent the bill as introduced,
Not less than three clear days before the consideration of a private bill ordered to lie upon the table, a copy of the bill as amended in committee shall be deposited at every department or office at which it was deposited under Standing Order 39 (Deposit of copies of bills at Treasury and other public departments, etc.) or Standing Order 232 (Deposit of copies of substituted bill at public departments, etc.) or would be required to be deposited under those orders if it has been originally introduced as amended in committee.
One peculiarity of the procedure on Private Bills is that the House must first resolve
That the Bill, as amended, be now considered.
Formerly, this was the case for Public Bills too, but this extra step was eliminated by Standing Order No. 72 (remember, public) on 27th November 1882 [18]
When the order of the day for the consideration of a bill, as amended in a committee of the whole House, has been read, the House shall proceed to consider the same without question put, unless the Member in charge thereof nominates a future day for its consideration or a motion shall be made to re-commit the bill in whole or in part.
This will appear at the usual Unopposed Private Business time before Questions, and as usual if opposed will need to be stood over, possibly until a time for Opposed Private Business is named. If not opposed, amendments can also be taken "on the nod" at the unopposed session, being moved ad seriatim by the Chairman of Ways and Means.

Because we can not be free of peculiarities, if a Private Bill does get set down for Opposed Private Business, the question above is actually not put as set out in Standing Order 204A
When an order of the day has been read for the consideration or further consideration, as amended, of a private bill set down by direction of the Chairman of Ways and Means at a time three hours before the moment of interruption, the question, That the bill, as amended, be now considered (or be now further considered) shall not be put: but (unless the Chairman of Ways and Means names a future day for the consideration or further consideration of the bill, or a motion is made to recommit the bill in whole or in part), the House- 
(a)  shall forthwith proceed to consider any amendments proposed on consideration of the bill which have been selected by the Speaker; and 
(b)  may, if there are no such amendments or when the amendments have been disposed of, proceed to the third reading of the Bill, notwithstanding the provisions of Standing Order 205 (Notice of third reading).
That is, the bill essentially proceeds as if it were a public bill without a timetable motion of any kind. Standing Order 205 will become important momentarily. In the event the bill is amended on Consideration, in the same way as the Committee Chairman would have endorsed these on the bill and signed it, a clerk does likewise by Standing Order 206,
The amendments (if any) which are made on the consideration of any private bill ordered to lie upon the table, and on the third reading of any private bill, shall be entered by one of the clerks in the Private Bill Office upon the House copy of the bill as amended in committee; which clerk shall sign the said copy so amended, in order to its being deposited and preserved in the said office.

Third Reading

Except for a bill which was opposed on Consideration, where Third Reading can be taken immediately after, Standing Order 205 requires further notice be given to cause this
Subject to the provisions of Standing Order 204A (Opposed business (consideration and third reading)), not less than one clear day's notice, in writing, shall be given by the agent for the bill to the clerks in the Private Bill Office, of the day proposed for the third reading of a private bill; and no such notice shall be given until the day after that on which the bill has been ordered to be read the third time.
And as usual this will appear in due course in unopposed Private Business. If opposed it would, as usual, need to be set down in an opposed session to be disposed of, otherwise, modulo a small number of caveats, it passes on the nod.

First, Queen's Consent [19] if necessary needs to signified before the question is put that the bill be read a Third Time. Like a public bill, lack of consent is fatal and the bill can not proceed.

It is a little know fact that it actually remains theoretically possible to move amendments on Third Reading to both Public and Private Bills. For the former, this is regulated by Standing Order No. 77, the first paragraph of which (the second doesn't matter here, being concerned with bills brought in on Ways and Means Resolutions), adopted on 21st July 1856 [20], provides that
No amendments, not being merely verbal, shall be made to any bill on the third reading.
And for the latter, identical provision is provided for by Standing Order 184, viz.
No amendments, not being merely verbal, shall be made to any private bill on the third reading.
This Standing Order was also made on 21st July 1856, but unlike No. 77 has not subsequently had a second paragraph annexed to it. [21]

As to what is a "verbal" amendment, we find also on that same day in 1856 in Hansard this exchange, [22]
SIR HENRY WILLOUGHBY: said, he would beg to ask what was to constitute a "verbal" Amendment?
COLONEL WILSON PATTEN: said, the Committee intended by that term anything which would make the least alteration in the meaning of a Bill. The Committee had only determined by the casting vote of the chairman to admit of any alterations at all; but it was thought that cases might arise in which there might be some little inaccuracies which it would be desirable to correct. He would beg at the same time to suggest that this alteration should not come into operation till next Session.
Anyway, broadly assuming it is in order at all, verbal amendments work like amendments on consideration, needing to not contravene the Standing Orders nor be out of scope and so on, and being entered in manuscript on the House copy of the bill by the clerks.

The last "verbal" amendment to a private bill was in 1995; and the last attempt to so amend a public bill seems to have been in 1989 [23].

As usual, in the Lords it remains necessary to also resolve
That the bill do now pass
Finally (this could obviously not be the end of the process) two further things must occur. First, another examination as required by Standing Order 207, viz.
The copy of every private bill after it has been printed fair, deposited in the Private Bill Office under Standing Order 185 (Printing of bill after third reading) shall, before the same is sent to the House of Lords, be examined by the clerks in the said office with the bill as read the third time, and the examining clerks shall endorse thereon a certificate of such examination.
after it has been printed at your expense as required by the cited Standing Order 185 (I told you this wasn't cheap), viz.
Every private bill originating in this House, after it has been read the third time, shall be printed fair at the expense of the parties applying for the same; and a copy thereof, printed and covered in like manner as the House copy, shall be deposited in the Private Bill Office, and shall be the copy of the bill sent to the House of Lords.
Secondly, as per the Table of Fees (see previous article) you now owe the House of Commons £ 4,000 for the privilege of having made it this far (not cheap, see!)

Ending Notes

And there we have it. We are, amazingly, only half way through the actual process, although since the procedure in the second [24] House is so similar, next time we can describe it very succinctly.

Which means we'll have time to consider odder and stranger things

As always, corrigenda welcome. 

[0] "honest"!
[1] Including the elephant of elephants in the room: Hybrid Bills.
[2] Actually an ecclesiastical law term, but I like it
[3] Implicit here is that praying against a clause includes praying to have the clause modified so it no longer adversely affects the petitioner. It is rather the same thing.
[4] As before, this is a reference to the Commons Private Business Standing Orders (the Public Business ones have a "No. 139" in them); the Lords PBSOs are broadly the same but differ in various ways and often have slightly adrift numbering. The few places where the differences matter will be noted assuming I remember them.
[5] At paragraph 45.19, following a report of Joint Committee in 1955.
[6] More on these later
[7] I assume that means only barristers, but shrug
[8] I like Latin.
[9] Erskine May has a detailed exposition on all the corner cases, including the fantastically complicated situation where the promoters are minded to agree an amendment in favour of a petitioner, then someone new objects to that amendment and wants the bill left as-is.
[10] Obviously a petition against the preamble could prompt this, but it can also be the result of one against a particular clause if it breaks the bill in some way, or even the Committee's decision sua sponte.
[11] And here lies a point of difference with the Lords. In the upper House, the Lord Chairman of Committees is empowered by (Lords) Standing Order 130 to determine any dispute under such an undertaking (as Lord Brabazon of Tara did concerning an undertaking from the Secretary of State to EWS on the Channel Tunnel Rail Link Act 1996). No provision is made in the Commons Standing Orders for this; one assumes it would need to be petitioned for and referred to a Select Committee for determination, and that a breach of an undertaking is a Contempt of Parliament; but Erskine May stands silent on this apparently important point. That being said, it appears that these undertakings are essentially never broken.
[12] There may be costs penalties for not so withdrawing in the face of an obviously proper petition, vide infra.
[13] Alastair Lewis was Parliamentary Agent for the Company; the Chairman, who comprised the total voting membership of the Committee, was Lord McFall of Alcuith, the Senior Deputy Speaker, and thereby Chairman of Committees, and he was joined by his Counsel and another Lords Clerk; initial numbers are paragraph numbers from the corrected transcript. The Commons proof is similar but I had this one slightly more handy.
[14] That is the Committee, Unopposed or Opposed, can't simply ignore the bill and hope it will go away if the promoters desire to proceed.
[15] Unless totally unamended, per Standing Order 178 where instead it shall proceed directly to Third Reading.
[16] However, knowing the shear volume of Private Bills in the 19th century it is entirely plausible by mere inadvertence this could happen from time to time.
[17] The cognate power in the Lords is somewhat less powerful since there technically the House is always master of its own procedure; but since there is no report stage there, and the Lords generally only accept truly uncontroversial amendments on Third Reading, it is unlikely to be an issue.
[18] Commons Hansard, vol. 275, col. 142 or thereabouts for the final approval thereof; Commons Hansard, vol. 275, col. 62 for the approval of the underlying resolution 57-27.
[19] And possibly Prince of Wales' Consent
[20] Commons Hansard, vol. 143, col. 1104 ish
[21] I enjoyed this historical oddity more than it is normal to enjoy anything.
[22] Sir Henry Pollard Willoughby, the third Baronet Willoughby of Baldon House, represented Evesham at the time, having previously represented Newcastle-Under-Lyme, and Yarmouth (the one on the Isle of Wight, not the Great one in Yarmouth); Colonel John Wilson-Patten, as he then was, was MP for North Lancashire, having represented Lancashire before the Reform Act; he was later Chancellor of the Duchy of Lancaster and Chief Secretary for Ireland before being called up to the House of Peers as the Lord Winmarleigh.
[23] Citation needed for both; I forgot to write it down earlier, but they're both somewhere in Erskine May.
[24] This isn't a Lords/Commons thing, in both Houses, when they go second the procedure has a few necessary differences to when they go first. Helpfully both Houses are essentially identically different in this case!

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