CHAPTER 9

PRIVATE LEGISLATION

Role of the Senior Deputy Speaker

9

9.01  In addition to his duties in the House, the Senior Deputy Speaker exercises a general supervision and control over private bills, and hybrid instruments. References in private business standing orders (PBSOs) to the Chairman of Committees are construed as including references to the Principal Deputy Chairman of Committees (now known as Chairman of the European Union Committee) and to any other Deputy Chairman.[1]

9.02  The Senior Deputy Speaker has the duty to name the Lords to form the following committees:

(a)  select committees on private bills;

(b)  select committees on opposed personal bills;

(c)  joint committees under the Private Legislation Procedure (Scotland) Act 1936 (House of Lords members);

(d)  joint committees under the Statutory Orders (Special Procedure) Act 1945 (House of Lords members);

unless he is of the opinion that any such committee should be selected and proposed to the House by the Committee of Selection or unless at least two members of that committee request a meeting for that purpose.[2] The Senior Deputy Speaker also has the duty to name the chairman of any select committee on a private bill appointed by him.[3]

Private Bills

Origination of private bills

9.03  Private bills originate outside Parliament and are promoted by bodies seeking special powers not available under the general law. They should not be confused with private members' bills, which are public bills (see paragraph 8.30). Each private bill starts with a petition to Parliament from the promoter for leave to bring in a bill.[4] The petition, with a copy of the proposed bill annexed to it, is deposited on or before 27 November in the House of Commons[5] and a copy of the proposed bill is deposited in the office of the Clerk of the Parliaments.

9.04  The government cannot promote a private bill. When a government department wants to promote a bill which would, if promoted by another person or body, be a private bill the bill is introduced as a public bill and is subsequently treated as a hybrid bill (see paragraph 8.212).

9.05  Where a bill deals exclusively with the personal affairs of an individual it may be certified by the Senior Deputy Speaker and the Chairman of Ways and Means in the Commons ("the two Chairmen" or "the Chairmen") as a "personal bill", though such bills are rare. Personal bills can be presented at any time during the session.

9.06  Scottish private legislation on matters not wholly within the legislative competence of the Scottish Parliament (other than personal bills) is governed by the statutory procedure in the Private Legislation Procedure (Scotland) Act 1936 (see paragraph 9.93).

Examination for compliance with standing orders

9.07  Each House normally appoints at least one official as an Examiner of Petitions for Private Bills.[6]Each Examiner may act on behalf of either House. On occasion Examiners from both Houses may sit to examine a particular bill. In the Lords, appointments are made by the House, and in the Commons by the Speaker. Beginning on 18 December, each petition for a bill is examined by one of the Examiners, who certifies whether certain PBSOs of both Houses are applicable.[7] These standing orders require notices and advertisements and the deposit of bills and other documents at various public offices.

9.08  Complaints of non-compliance with the standing orders ("memorials") may be presented, and memorialists are entitled to be heard before the Examiner.[8]

9.09  The Examiner certifies to both Houses whether the standing orders applicable have, or have not, been complied with. If they have not been complied with, the Examiner reports the facts and any special circumstances. Should the Examiner be in doubt as to the construction of any standing order in its application to a particular case, he or she makes a special report of the facts, without deciding whether the standing order has or has not been complied with.[9]

9.10  In a case of non-compliance or doubt the Examiner's certificate or report is referred by each House to its Standing Orders (Private Bills) Committee.[10] Both committees must agree to suspend or dispense with the relevant Standing Orders in order for the bill to progress further. Either committee may require conditions to be met before granting dispensation.

European Convention on Human Rights

9.11  The memorandum which accompanies each private bill when it is deposited on 27 November includes a statement by or on behalf of the promoters of the bill as to the compatibility of the provisions of the bill with the Convention Rights (as defined in the Human Rights Act 1998).[11] In the case of every private bill, whether introduced in the Lords or the Commons, a report from a minister of the Crown on the promoter's statement of opinion required by PBSO 38(3) is to be presented no later than the second sitting day after first reading in each House.[12]

Late bills

9.12  A promoter who wishes to introduce a bill late (after 27 November) submits to the two Chairmen a statement of the objects of the bill, the reasons for the need to proceed during the current session, and the reasons why it was impracticable to deposit the bill by 27 November.

9.13  The Chairmen consider:

(a)  whether the explanation justifies the delay in depositing the bill; and

(b)  whether the proposals are so urgent that postponement of the bill to the following November would be contrary to the public interest.

9.14  If the Chairmen are satisfied on these points, or if they consider that the public interest so requires, the appropriate Chairman gives leave for the petition and the bill to be deposited in the House in which they decide the bill is to originate.[13]

9.15  After the petition together with the proposed bill has been presented to the House, it is referred to the Examiners. The Examiners report to both Houses that the bill is non-compliant with standing orders and the certificate is referred to the Standing Orders Committee of each House. If both committees report that the standing orders ought to be dispensed with, the bill is presented and read a first time.

9.16  The bill, as presented, should not contain any non-urgent provisions nor any other than those outlined in the original statement of the promoters in support of their application.

Lords bills: introduction and first reading

9.17  The allocation of private bills between the two Houses is determined between the two Chairmen or, more usually, their Counsel, on or before 8 January.[14] The private bills proposed to be introduced are divided as equally as possible between the two Houses with a view to general convenience. Where a bill has been rejected previously in one House, a subsequent bill with similar objects normally originates in that House. Personal bills usually originate in the Lords.

9.18  It is usual, before any allocation is made, for Counsel to the two Chairmen to invite representations in writing from each promoter.

9.19  First reading is "formal", that is to say, by way of an entry in the Minutes of Proceedings. No proceedings take place in the House itself. In the case of bills originating in the House of Lords, it takes place on 22 January (or the next sitting day) or, if later, the day on which:

(a)  the Examiner has certified that standing orders have been complied with; or

(b)  the Standing Orders Committee has reported that standing orders have been complied with; or

(c)  the House, on report from the Standing Orders Committee that the standing orders ought to be dispensed with, has agreed that the bill should be allowed to proceed.[15]

Subsequent stages

9.20  The Senior Deputy Speaker normally moves subsequent stages of private bills in the House (but see paragraph 9.26 below). His Deputies may act for him for all purposes connected with private legislation.[16]

Petitions against private bills

9.21  Parties specially and directly affected by a bill may present a petition against it, which must state clearly the grounds of their objection to the bill.[17]

9.22  Petitions against Lords bills must usually be presented on or before 6 February. Petitions against a Commons bill, or a late bill originating in the House of Lords, may be deposited up to 10 days after first reading, subject to PBSOs 201 and 201A. Petitions against Commons bills are admissible whether or not the petitioner also petitioned against the bill in the Commons.

9.23  Petitions against proposed amendments must be lodged in time for the committee to consider them.

Petitions for additional provision

9.24  After the introduction of a bill, the promoters may wish to make additional provision in the bill in respect of matters which require the service of new notices and advertisements. A petition for that purpose, after approval by the Senior Deputy Speaker, who acts for this purpose in close accord with the Chairman of Ways and Means, is deposited in the office of the Clerk of the Parliaments with a copy of the provisions proposed to be added. The petition is referred to the Examiners, and may not proceed unless any standing orders applicable have been complied with or dispensed with. A petition for additional provision may not be presented in the case of a bill brought from the Commons.[18]

Second reading

9.25  The second reading of a private bill is usually taken after oral questions and is usually taken formally. It does not, as in the case of public bills, affirm the principle of the bill, which may therefore be called in question before a committee or at third reading. The second reading is normally moved by the Senior Deputy Speaker, and provides an opportunity for him to direct the attention of the House to any special circumstances connected with the bill.[19]

9.26  A member of the Lords who intends to debate the second reading of a bill is expected to notify the Senior Deputy Speaker, the Private Bill Office[20] or the Government Whips' Office; a member who intends to oppose it should always do so. The Senior Deputy Speaker then usually asks the promoters to arrange for someone other than himself to move the second reading. If notice of the second reading has already been given it will be removed from the order paper and set down for debate at a later date.

9.27  The second reading of a bill originating in the House of Lords may not be taken earlier than the second sitting day after first reading[21] and it is customary to wait until the petitioning period has expired before taking second reading.

9.28  Lords bills affected by the standing orders originally devised by Lord Wharncliffe, which govern the consents of proprietors, members and directors of companies,[22] are referred again to the Examiners after second reading.[23] Such bills are not committed unless those orders have been complied with or dispensed with.[24]

Instructions

9.29  Instructions to committees on private bills may be moved at any time between the second reading and committee stage of the bill, but are usually put down for the same day as the second reading. The Senior Deputy Speaker should be informed before an instruction is tabled.[25]

9.30  Permissive instructions enable the committee to do what it could not do without such an instruction. However, any enlargement of the scope of a bill should be effected by a petition for additional provision rather than such an instruction. Mandatory instructions compel the committee to do something which it already has discretion to do. However, the House has been reluctant to agree to any instruction which will restrict the decisions of the committee.

9.31  The most usual type of instruction on a private bill is of a cautionary nature. For example, the committee is sometimes instructed to have regard to certain matters or to ensure that various objections have been considered. An instruction of this nature is often accepted by the House, as it ensures that the committee considers matters which might not be raised by the parties appearing before it or in a departmental report.

9.32  To assist them in carrying out an instruction, committees have on occasion been given power by the House to hear evidence other than that tendered by the parties entitled to be heard. This procedure, however, is open to criticism: it may enable a person to oppose a bill without having petitioned against it, and there is no fund out of which the fees of any expert witness may be paid.

9.33  Instructions have occasionally been given to an unopposed bill committee.

9.34  It is customary for the committee to make a special report to the House upon matters referred to in an instruction.

Commitment

9.35  After second reading every unopposed bill is normally committed to an unopposed bill committee.[26] Every bill opposed by petitions is committed to a select committee.[27]

9.36  The Senior Deputy Speaker may report to the House that, in his opinion, an unopposed bill should be proceeded with as an opposed bill and committed to a select committee.[28] In such a case the committee might be authorised to hear evidence tendered by parties other than the promoters, but this procedure has rarely been used.

Committees on opposed bills

9.37  Select committees on opposed bills consist of five members, normally named by the Senior Deputy Speaker, who also nominates the chairman, and reports his appointments to the House. Members of the House with an interest in the bill may not serve on the committee,[29] nor may those who have expressed a view in public on matters close to the subject matter of the bill. If the chairman is absent, the committee may appoint a substitute.[30]

9.38  In principle every member of the committee must attend the whole proceedings, but the committee may sit with only four members if all the parties agree. In this case a report is made to the House. If the consent of any party is withheld, the committee adjourns and may not resume in the absence of a member without leave of the House. No member who is not a member of the committee may take any part in its proceedings.[31]

9.39  If the committee adjourns over a day on which the House sits, it must report the reason to the House.[32] Promoters and petitioners may be represented by counsel or agents. The committee hears arguments and evidence from the parties and the representations of government departments, which may include opposition to all or part of the bill. The committee is not allowed to hear other evidence without an order of the House. The committee may decide that the bill should be allowed to proceed, with or without amendments, or "that it is not expedient to proceed further with the bill".[33]

9.40  The promoters are usually represented by counsel; petitioners may represent themselves or appoint an agent or counsel to speak on their behalf. The promoters and the petitioners may call witnesses; evidence called is tendered on oath. Representatives of the government departments which have reported on the bill attend and may be questioned by the committee.[34]

9.41  The committee may, if it so chooses, make a site visit to a relevant area. It may not take evidence from the parties whilst doing so without express permission of the House.

9.42  If any clauses in the bill are not opposed by petition those clauses will be considered by the select committee only if the Senior Deputy Speaker reports to the House that the committee should do so.[35] This is common practice where the unopposed clauses are not the subject of a government report and are of minor importance.

Locus standi

9.43  In general, and subject to PBSOs 115-120, a petitioner has a right to be heard if theirinterests are specially and directly affected by the bill. If another party challenges a petitioner's locus standi, the question is heard and decided by the committee at the beginning of their proceedings.[36]

Bill rejected

9.44  If the select committee rejects the bill, an entry to this effect is made in the Minutes of Proceedings. The bill does not then proceed further and is removed from the list of bills in progress in House of Lords Business.

Recommitment

9.45  If the committee reports that the bill should be allowed to proceed, and if the unopposed clauses have not been considered by a select committee, the bill is recommitted to an unopposed bill committee, which then considers the unopposed clauses. It may not vary any decision made by the select committee.[37]

9.46  If no petitioner appears, or if all petitions are withdrawn before proceedings commence, or if the locus standi of all petitioners is disallowed, then the select committee reports accordingly; the bill becomes unopposed, and, unless there is an instruction, the bill is recommitted to an unopposed bill committee.[38] However, if an instruction has been given to a select committee on a private bill, the committee must consider the bill and instruction.

Special report

9.47  In certain circumstances, when it is thought that the House should be informed of the findings of a committee, and its reasons for reaching them, a special report is made. It is usual, for instance, to make a special report in response to an instruction. An order for the special report to be considered can be made, to allow the House to debate and review the decisions of the committee; but third reading provides the normal opportunity for such a debate.

Unopposed bill committees

9.48  Each unopposed bill committee normally consists of the Senior Deputy Speaker assisted by his Counsel.[39] The Senior Deputy Speaker may select further members from the panel of Deputy Chairmen.[40] No member who is not a member of the committee may take any part in the proceedings. The promoters may be represented by their agents (rather than by counsel) and may call witnesses; evidence called is not tendered on oath. Representatives of the government departments which have reported on the bill attend and may be questioned by the committee.[41]

9.49  The promoter's agent is called upon to justify any clauses on which the Senior Deputy Speaker has asked for further information or which are the subject of a departmental report. The committee may then amend the bill as it thinks fit.

9.50  When the committee is prepared to accept the bill, witnesses are called, on oath, to prove the preamble to the bill. In cases where there is no unopposed bill committee the preamble is proved before the select committee.

Report

9.51  The proceedings of committees on both unopposed and opposed bills are concluded by an entry in the Minutes of Proceedings reporting the bill from the committee. Amendments made in committee are available for inspection in the Private Bill Office; the bill as amended must be deposited by the promoter at certain public offices. No report stage is held in the House. However, after the bill has been reported by the committee, drafting or consequential amendments can be inserted in the bill by Counsel to the Chairman of Committees on the authority of the Chairman, and endorsed "Amendments made on Report". No entry in the Minutes of Proceedings is made when this is done.[42]

Third reading and passing

9.52  In the majority of cases the third reading of a private bill is formal. Any amendments proposed to be moved on third reading must be submitted to the Senior Deputy Speaker at least "one clear day", that is, two days, in advance.[43] All amendments which have the approval of the Senior Deputy Speaker are moved by him; the House usually accepts them without question. These are usually amendments asked for by the promoters to correct errors or to carry out agreements made during the committee stage. Occasionally an amendment contrary to the wishes of the promoters is submitted and moved by a member of the House. In such cases a debate would ordinarily arise.

9.53  Any member of the House who wishes to speak without proposing amendments is expected to notify the Senior Deputy Speaker of his intention in advance. Such remarks should be made on the motion that the bill do now pass, not on the motion for third reading.

Commons bills

9.54  A private bill brought from the Commons is read a first time forthwith by means of an entry in the Minutes of Proceedings, and referred to the Examiners in respect of the standing orders relating to such bills.[44] It may not be read a second time until the standing orders have been complied with or dispensed with.[45] Petitions against it may be deposited up to 10 days after first reading,[46] whether or not the petitioner also petitioned the House of Commons.[47] If it is amended in the House of Lords, it may be referred to the Examiners again in respect of the amendments.[48]

Queen's Consent

9.55  When the Queen's or Prince of Wales' Consent (see paragraphs 8.185-8.187) is required for a private bill it is usually signified on third reading by a minister who is a Privy Counsellor.

Commons amendments

9.56  Amendments made by the Commons to Lords bills, or to Lords amendments to Commons bills, and amendments to such amendments which the promoters wish to make in the House of Lords, are submitted to the Senior Deputy Speaker for approval.[49] Commons amendments may be agreed formally by an entry in the Minutes of Proceedings, without notice, and not taken in the House but, if the Senior Deputy Speaker so wishes, the same procedure is followed as for public bills.

9.57  If there is disagreement between the Houses on amendments to private bills, the same procedure is followed as for public bills. However, decisions on private legislation are coordinated between the two Houses, so that the need for this procedure seldom arises. Neither House reinserts a provision struck out by the other House unless by agreement in advance between the two Houses.

Royal Assent

9.58  Private bills other than personal bills receive Royal Assent in the same form as public bills, "La Reyne le veult" (see appendix H).

Hybrid Instruments

9.59  The House of Lords alone has a procedure for considering hybrid instruments.

9.60  When the Senior Deputy Speaker is of the opinion that an affirmative instrument[50] is such that, apart from the provisions of the Act authorising it to be made, it would require to be enacted by a private or hybrid bill, he reports his opinion to the House and to the minister or other person responsible for the instrument. An instrument upon which such a Chairman's report has been made is known as a hybrid instrument. Such instruments can be opposed in the House of Lords by petitioning against them.[51]

9.61  Any petition asking the House not to affirm a hybrid instrument must be deposited with the Clerk of the Parliaments within 14 days following the day on which the Chairman's report is laid before the House. If no petition is received within this period the Chairman reports accordingly to the House. Any petition received during the period is referred to the Hybrid Instruments Committee (see paragraph 11.62) together with the instrument petitioned against.

9.62  The Hybrid Instruments Committee, after considering any representations made in writing by the parties to the proceedings and after hearing, if it thinks fit, the parties in person or by counsel or agents, decides whether any petitioner has a locus standi. If so, the committee reports to the House, in accordance with the criteria specified in private business SO 216, whether there ought to be a further inquiry by a select committee into all or any of the matters specified by the petitioner. In such a case, the House may refer all or any of the matters on which the committee has reported to a select committee consisting of five members, appointed by the House on the proposal of the Committee of Selection, with terms of reference specified by the House.

9.63  No motion to approve a hybrid instrument may be moved until the proceedings under private business SO 216 have been completed,[52] that is until either:

(a)  the Senior Deputy Speaker has reported to the House that no petitions have been received, or that all petitions have been withdrawn; or

(b)  the Hybrid Instruments Committee has reported that no petitioner has a locus standi, or that there ought not to be an inquiry by a select committee; or

(c)  the House has decided not to refer any matter to a select committee; or

(d)  the select committee has reported to the House.

9.64  Where proceedings under private business SO 216 have not been completed in respect of an instrument which has expired or lapsed, a further instrument to substantially the same effect may be substituted for the purposes of those proceedings.

Expedited hybrid instruments

9.65  A hybrid instrument which, by virtue of the Act authorising it to be made, is, after the expiry of a period prescribed by that Act, to proceed in Parliament as if its provisions would, apart from that Act, require to be enacted by a public bill that is not hybrid, is known as an expedited hybrid instrument.[53] The procedure for such an instrument differs from that applicable to other hybrid instruments in several respects. A petition not to affirm an expedited hybrid instrument must be deposited within ten days following the day on which the instrument is laid. If the Hybrid Instruments Committee is of the opinion that there ought to be a further inquiry, it conducts that inquiry itself forthwith.

9.66  No motion to approve an expedited hybrid instrument may be moved until the proceedings under private business SO 216A have been completed, that is until the Senior Deputy Speaker or the Hybrid Instruments Committee has reported, or the period prescribed by the parent Act has expired.

Special Procedure Orders

9.67  The procedure for special procedure orders is laid down by the Statutory Orders (Special Procedure) Act 1945, as amended by the Statutory Orders (Special Procedure) Act 1965 and the Growth and Infrastructure Act 2013,[54] supplemented by the PBSOs of both Houses. That Act applies:

·  to orders made under Acts passed before the Act of 1945 which are specified in that Act, or to orders made under it;[55] and

·  to orders made under Acts passed since the Act of 1945 which are expressed in those Acts to be "subject to special parliamentary procedure".[56]

Laying of orders

9.68  An order subject to special parliamentary procedure must be laid before Parliament.[57] No order may be laid until the requirements[58] of the enabling Act, or of Schedule 1 to the 1945 Act, as to notices, consideration of objections and holding of inquiries have been complied with; and notice must be published in The London Gazette not less than three days before the order is laid. There must be laid with it a certificate by the minister specifying the requirements of the enabling Act and certifying that they have been complied with or (so far as the 1945 Act permits) dispensed with.

Petitions

9.69  Petitions[59] may be presented against a special procedure order within a period of 21 days, known as the "petitioning period", beginning with the day on which the order is laid before Parliament or, if the order is laid before the two Houses on different days, with the later of the two days. If the petitioning period expires on a Sunday, it is extended to the following Monday; if it expires during a dissolution, prorogation or any period of 10 or more consecutive days on which the House does not sit for public business, it is extended to the day on which the House resumes.

9.70  There are two kinds of petition against a special procedure order:

·  a petition calling for amendments to the order, which must specify the proposed amendments (a "petition for amendment");

·  a general petition against the order, which must be presented separately (a "petition of general objection").

9.71  Memorials[60] stating technical objections to petitions may be deposited in the office of the Clerk of the Parliaments within seven days beginning with the day on which the petition was presented.

9.72  After the petitioning period has expired, the Senior Deputy Speaker and the Chairman of Ways and Means in the House of Commons consider all petitions and report to both Houses. If a petition complies with the Act and standing orders, and if the Chairmen consider the petitioner has locus standi, they certify that it is proper to be received and whether it is a petition for amendment or a petition of general objection. If a petition for amendment[61] involves amendments which would alter the scope of the order or affect the interests of persons other than the petitioner, the Chairmen may make a special report to that effect. If a petition for amendment involves amendments "which would constitute a negative of the main purpose of the order", the Chairmen certify it as a petition of general objection. But if only some of the amendments would defeat the main purpose of the order, the Chairmen may delete those amendments and certify the rest of the petition as a petition for amendment. In certain cases the Chairmen may find it necessary to hear the parties, and they must do so if memorials are deposited.

9.73  Within 14 days,[62] beginning with the day on which the Chairmen's report is laid before the House of Lords, counter-petitions may be presented against petitions for amendment.

Resolution for annulment

9.74  If either House within 21 days[63] beginning with the day on which the Chairmen's report on an order is laid before it (the "resolution period") resolves that the order be annulled, the order lapses. In reckoning the resolution period, time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days, is not counted.

9.75  If there is an equality of votes on a resolution for annulment, the resolution is defeated and the order proceeds.

9.76  If no resolution for annulment is passed, any certified petition is referred to a joint committee, except that a petition of general objection is not referred if either House has resolved within the resolution period that it should not be. Any special report of the two Chairmen, and any counter-petitions, are also referred to the committee.

9.77  If no petition is referred to a joint committee at the end of the resolution period, and no resolution for annulment has been passed, the order may come into operation.

Joint committee

9.78  Joint committees under the 1945 Act consist of three members of each House, and private business SO 209 governs their proceedings. Where a petition is for amendment,[64] the joint committee may report the order with or without amendments to give effect to the petition in whole or in part. Where the petition is of general objection, the joint committee may report the order with or without amendments, or report that the order be not approved. The report of the joint committee is laid before both Houses. Where the order is reported without amendment,[65] it may come into operation from the date when the report of the joint committee is laid before Parliament.

9.79  Where the order is reported with amendments,[66] the minister may bring the order as amended into operation on a date of their choice, or withdraw the order, or bring it to Parliament for further consideration by means of a bill for its confirmation.

9.80  Where the joint committee reports that the order be not approved, the order does not take effect unless confirmed by Act of Parliament.

Confirming bills

9.81  A confirming bill presented in respect of an order reported with amendments is a public bill and sets out the order as amended.[67] It is treated as if the amendments had been made in committee in the House in which it is presented, and in the second House likewise it proceeds straight to consideration on report.[68] A bill presented in respect of an order which the committee has reported be not approved goes through the same procedure, unless a petition for amendment was certified but was not dealt with by the joint committee. In that case the confirming bill has a first and second reading, and is referred to that committee for the purpose of considering that petition. Report and third reading follow. In the second House the bill proceeds straight to consideration on report.

Orders relating to Scotland[69]

9.82  In the case of orders which do not deal with matters within the legislative competence of the Scottish Parliament but which relate exclusively to Scotland, a preliminary inquiry into objections is held in Scotland by Commissioners in accordance with the Private Legislation Procedure (Scotland) Act 1936. If the minister concerned accepts the Commissioners' recommendations, the order is laid before Parliament and the subsequent proceedings are as already described, except that no petition, whether for amendment or of general objection, is referred to a joint committee unless either House so orders within the resolution period. If the minister is not prepared to accept the Commissioners' recommendations, he or she may, instead of laying the order before Parliament, introduce a bill for the confirmation of the order. The procedure on such a bill is the same as for a bill under section 9 of the 1936 Act.

Scottish Private Legislation

9.83  Private legislation on matters affecting interests in Scotland, and not wholly within the legislative competence of the Scottish Parliament, is governed by the Private Legislation Procedure (Scotland) Act 1936.[70] A person seeking such legislation does not present a petition for a private bill to Parliament but submits a draft order to the Secretary of State for Scotland; and petitions him to issue a provisional order in the terms of the draft or with such modifications as may be necessary.[71] Legislation for purposes which would require a personal bill, as defined by private business SO 3(2), is exempted from this provision.

9.84  In this Part "s." refers to sections of the Private Legislation Procedure (Scotland) Act 1936; and "GO" refers to General Orders made under s.15(1).

Legislation not confined to Scotland

9.85  A person who seeks powers "to be operative in Scotland and elsewhere" may make representations to the Secretary of State that the powers should be conferred by a single enactment.[72] The Secretary of State, the Senior Deputy Speaker and the Chairman of Ways and Means in the House of Commons consider such a representation. If they are of the opinion that the powers would be more properly obtained by a private bill than by the duplicated process of a provisional order for Scotland and a private bill for the areas affected beyond Scotland, they publish their decision and report it to Parliament. The promoter then proceeds by private bill.[73] A petition for such a bill may not be presented sooner than four weeks after the representation has been made to the Secretary of State.

Draft orders

9.86  Application for provisional orders may be made twice a year, on 27 March and 27 November. A copy of every draft order must be deposited in the appropriate offices of both Houses of Parliament.[74]

9.87  Promoters are required to comply with General Orders made under the 1936 Act, which correspond with the standing orders that have to be complied with prior to the introduction of a private bill. These require them to deposit copies of draft orders at certain public offices, and to give notice by public advertisement to owners and occupiers of land or houses affected. The Secretary of State refers all draft orders to the Examiners, who report to the Secretary of State and the two Chairmen whether these General Orders have been complied with. If they have not, the promoters may apply for dispensation to the two Chairmen, whose decision is final.[75]

9.88  The last date for advertisements is 11 April or 11 December, as the case may be, and for six weeks from the last date of advertisement persons may petition against any draft order to the Secretary of State, who notifies the two Chairmen.[76] When this period has expired, the two Chairmen examine all the draft orders and any petitions, and report to the Secretary of State, who lays each report before Parliament.[77]

Order refused

9.89  If the two Chairmen report that the provisions, or some of the provisions, of any draft order relate to matters outside Scotland to such an extent, or raise questions of public policy of such novelty and importance, that they ought to be dealt with by private bill and not by provisional order, the Secretary of State must, without further inquiry, refuse to issue a provisional order, to the extent objected to by the Chairmen.[78]

Substituted bill

9.90  The promoters of a draft order which the two Chairmen consider should not be issued by the Secretary of State, may, if they wish, introduce a private bill known as a "substituted bill". They must, within 14 days after the Secretary of State has notified them of their refusal to make the provisional order, deposit a copy of the bill in every public office where a copy of the draft order was deposited, and they must notify their intention to the opponents of the draft order and prove to the Examiner that they have done so. They must satisfy the Examiner that the bill does not contain any provision which was not contained in the draft order, though it is not required to contain all the provisions which were in the order. Subject to these conditions, the notices which were given for the draft order are deemed to have been given for the substituted bill, and the petition to the Secretary of State for the provisional order is taken to be the petition for the bill. Petitions deposited against the draft order are received from the Scotland Office by the House in which the bill originates as petitions presented against the substituted bill. In the House of Lords no other petition may be received.[79]

Unopposed orders

9.91  If the two Chairmen raise no objection to the draft order and if there is no opposition outstanding, the Secretary of State issues the provisional order, with such modifications as may be necessary to meet recommendations made by the two Chairmen or any public department affected. The Secretary of State has power to send an unopposed order to an inquiry by Commissioners before issuing it, but this is seldom done.[80]

Opposed orders

9.92  Opposed orders are referred to Commissioners, who hear parties in Scotland. There are four Commissioners, normally two members of each House, selected by the two Chairmen from parliamentary panels appointed by the Senior Deputy Speaker in the House of Lords and the Committee of Selection in the House of Commons. One of the Commissioners is appointed as Chairman and, by custom, is chosen alternately from each House. There is an extra-parliamentary panel for emergencies, which consists of twenty persons "qualified by experience of affairs to act as Commissioners" under the Act. This panel is revised every five years.[81]

9.93  The proceedings of the Commissioners follow closely those of select committees on private bills. After inquiry the Commissioners report on the order to the Secretary of State. They either report that the order should not be made, in which case the order is rejected; or they approve it, with or without modification.[82]

9.94  The Secretary of State then issues the provisional order. He or she is entitled to make further amendments after the inquiry, and is required at this stage to have regard to any recommendations made by the Chairmen or by departments. It is an essential feature of the procedure, however, that the fullest respect is paid to the views of the Commissioners. With the rarest exception, further amendments are limited to matters of drafting.

Confirmation bills

9.95  No provisional order issued by the Secretary of State for Scotland has any validity until it has been confirmed by public Act of Parliament. A bill to confirm any such order or orders is usually introduced by the Secretary of State in the House of Commons. A bill to confirm an order into which no inquiry has been held is deemed to have passed through all its stages up to and including Committee in each House.[83] In the House of Lords, after first reading, it is put down for consideration on report. The Lord in charge of the bill moves:

"That this bill be now considered on report."

9.96  The third reading and passing of the bill are usually taken on the next convenient day. Proceedings on such a bill are usually formal. Such bills are not printed in the Lords unless amended on consideration on report.

9.97  A bill to confirm an order into which an inquiry has been held may be petitioned against within seven days of introduction in the House of origin.[84] If a petition is presented, a member may, with notice, move immediately after second reading to refer the bill to a joint committee, which broadly follows the procedure of a select committee on an opposed private bill.[85] Such a motion is rare. If such a motion is agreed to in the House of Commons and the bill is passed by that House, then in the House of Lords the bill proceeds straight from second reading to third reading.[86] If no such motion is agreed to, then, if the bill was introduced in the Lords, it proceeds from second reading to consideration on report; if the bill was introduced in the Commons, it proceeds in the Lords straight from first reading to consideration on report.

Transport and Works Act 1992

9.98  Under the Transport and Works Act 1992, projects such as railways, tramways, harbours and barrages no longer come before Parliament for approval by way of private bill, but are dealt with by ministerial orders, in most cases following local public inquiries. Such orders are not normally subject to parliamentary proceedings, but may be deposited in the libraries of both Houses for information. However, section 9 of the Act provides that schemes which are adjudged by the Secretary of State to be of national significance must be approved by each House on a motion moved by a minister before an order is made to give effect to the scheme. In practice such a motion precedes any local public inquiry.

9.99  Motions take the following form:

"The Lord X to move that, pursuant to section 9 of the Transport and Works Act 1992, this House approves the following proposals which in the opinion of the Secretary of State are of national significance, namely..."

 

 

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