Companion to the Standing Orders and guide to the Proceedings of the House of Lords


8.71  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).

8.72  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.[379] 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.[380] Legislation for purposes which would require a personal bill, as defined by private business SO 3(2), is exempted from this provision.

Private interests in Scotland

8.73  Every petition for a personal bill on matters affecting private interests in Scotland, and not wholly within the legislative competence of the Scottish Parliament, is referred by the Personal Bills Committee to two judges of the Court of Session in Scotland. The two judges take evidence and report their opinion on the draft bill and any amendments required thereto to the Personal Bills Committee. The committee may not report to the House until it has received and considered the report of the judges.

Legislation not confined to Scotland

8.74  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.[381] The Secretary of State, the Chairman of Committees 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.[382] 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

8.75  Application for provisional orders may be made twice a year, on 27 March and 27 November. A printed copy of every draft order must be deposited in the appropriate offices of both Houses of Parliament.[383]

8.76  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 him 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.[384]

8.77  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.[385] 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.[386]

Order refused

8.78  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.[387]

Substituted bill

8.79  The promoters of a draft order which the two Chairmen consider should not be issued by the Secretary of State for Scotland, 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 his 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.[388]

Unopposed orders

8.80  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. He has power to send an unopposed order to an inquiry by Commissioners before issuing it if he thinks it necessary, but this is seldom done.[389]

Opposed orders

8.81  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 Chairman of Committees 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.[390]

8.82  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.[391]

8.83  The Secretary of State then issues the provisional order. He is entitled to make further amendments after the inquiry, and he 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

8.84  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.[392] 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."

8.85  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.

8.86  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.[393] 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.[394] 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.[395] 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.

8.87  Because Scottish provisional order confirmation bills are not printed in the House of Lords, the ministerial statement of compatibility with the Convention rights under section 19 of the Human Rights Act 1998 is made by means of a written statement.

379   s. 1(1). Back

380   s. 16(3). Back

381   s. 1(4). Back

382   PBSO 193. Back

383   GO 2, s. 1(2). Back

384   s. 13, GO 4-56, 58-60, 65-67, 69-72, s. 3(2). Back

385   GO 75. Back

386   s. 2, PBSO 189. Back

387   s. 2(2). Back

388   PBSO 194, 195, 196, s. 2(4), PBSO 197. Back

389   s. 7, s3(1). Back

390   s. 5, PBSO 190, s. 4. Back

391   s. 6, 10-12, 14, 17, GO 73-115, s. 8. Back

392   s. 7(2). Back

393   s. 9. Back

394   PBSO 191. Back

395   PBSO 192. Back

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