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14 February 2014
They were essential for the construction of canals and railways and the development of utilities, but for a long time private bills have been overlooked. However, in the last few years local authorities and other bodies have been turning again to this form of legislation and Private Bills are making a comeback.
What are private Bills?
Private Bills are founded on the principle that every person has the right to petition Parliament for exceptional powers or exemptions to deal with situations that are not adequately catered for by the general law. This accepts that, with the best will in the world, the one size fits all approach of Public Acts of Parliament cannot foresee all the cases that may arise.
The method of applying for special powers or exemptions has remained the same for centuries. The promoter deposits a petition in Parliament with a Bill which sets out the legislative provision which is being sought and, in the preamble, a brief explanation of the problem which the provision would solve and why it is “expedient” that it should be enacted.
A private Bill is therefore a Bill which seeks to confer on the promoter, who may be an individual but is more usually a body corporate, special powers or benefits which are in excess of, or conflict with, the general law. One point to be aware of is that Private Bills are different from Private Member’s Bills which are Public Bills introduced by Private Members of Parliament rather than by the Government.
Special procedures apply to the promotion of Private Bills.
Those procedures are contained in the Standing Orders of each House of Parliament relating to Private Business.
These ensure that Bills are fully publicised and all parties whose interests are specially and adversely affected are given an opportunity to petition against the Bill in question and to appear before a Select Committee of each House of Parliament to make representations against it.
Why are Private Bills important?
Historically, Private Bills are of huge importance. In the industrial revolution, they were the means by which compulsory purchase powers, immunities and other necessary powers were granted enabling canals, railways, tramways, roads and bridges to be constructed and facilities for the public supply of gas, water and electricity to be provided. Many of the matters relating to infrastructure projects can now be addressed by Ministerial Order instead of by primary legislation. Most recently the Transport and Works Act 1992 made provision for most railway and tramway schemes and projects affecting inland waterways and navigable waters to be authorised by transport and works orders instead of by Private Acts.
But the principle that an individual can petition Parliament for special provision if the situation justifies it remains as potent today as it was in the 18th, 19th and 20th centuries. Because Parliament is supreme, subject of course to European and International law, there is - in legal terms - no limit to what can be achieved by an Act of Parliament. In this respect there is no distinction between a Private Act and a Public Act.
Private Bills: the ultimate problem solvers
So a Private Act has the potential to do anything that a body cannot achieve by any other means. It is the ultimate problem solver. Unlike subordinate legislation there is not a risk of legal challenge on the grounds of ultra vires: as soon as the Act has been passed promoters can place absolute reliance on its provisions.
Resurgence of Private Bills
Traditionally local and public authorities have been the principal promoters of Private Bills because they are most likely to require special powers to fulfil their statutory objectives. Following the passing of the Local Government Act 1972, the newly constituted local authorities were very active in promoting Private Bills to rationalise and modify their local legislation to adapt it to the changes which had been made by the 1972 Act. There then followed a period when local authorities, probably because of the additional powers conferred on them by that exercise, were not inclined to continue with the pro-active Bill promotion of their predecessors. However, in the last few Sessions of Parliament local and other public authorities have woken up to the broad scope that Private Bills can provide to deal with otherwise incurable problems.
As times change, so do the problems faced by local authorities. In 1972 no one would have considered that local measures would be needed to regulate sex shops, hostess bars, car boot sales or dealing in second hand goods or that illegal parking and abandoned cars would become such a big problem in some areas. Yet all these matters have been successfully dealt with by recent Private Bills promoted by local authorities.
Banks, universities and university colleges find that Parliament can, at a single stroke of Her Majesty’s pen (Royal Assent), merge several major bodies without the usual attendant and otherwise insuperable problems such as a multiplicity of property transactions and the renegotiation of an enormous number of contracts with third parties. Recent examples are the HBOS Group Reorganisation Act 2006 and the merger of the University of Manchester with the University of Manchester Institute of Science and Technology effected by the University of Manchester Act 2004.
Private Bills can enable a local authority to relocate a market stand which is in the way of a city centre regeneration scheme, run special events on protected squares or commons or modify statutory provisions which may impede modern initiatives. Private residential estates may need Parliamentary powers to ensure the upkeep of roads and other facilities. Registered companies can obtain Parliamentary sanction to change their domicile to other countries without the need to disrupt their affairs.
It is this limitless flexibility that makes Private Bills, given the right circumstances, so attractive. Public and commercial authorities and their advisors, confronted by an apparent brick wall, will do well to bear in mind that the answer may lie in exercising the right to petition Parliament for a tailor made legislative remedy.
Monica Peto is a partner and parliamentary agent at Eversheds