Introduction, history and principles

42.1Private legislation is legislation of a special kind for conferring particular powers or benefits on any person or body of persons—including individuals, local authorities, companies, or corporations—in addition to or in conflict with the general law. As such, it is to be distinguished from public general legislation, which applies to the community at large, and is treated differently in Parliament. Private business in each House is governed by a separate set of standing orders, in addition to the standing orders relating to public business.1

The essential difference in procedure between a public bill and a private bill is that a public bill is either presented direct to one or other House or introduced on a motion by a Member of either House, while a private bill is sought by the parties who are interested in promoting it and is founded upon a petition which must be deposited in accordance with standing orders. Another significant difference is that the payment of fees by the promoters of a private bill is an indispensable condition of its progress (see para 43.18 ).

Until the nineteenth century, most private bills were concerned with the affairs of individuals. In the absence of any ordinary procedure for divorce or naturalisation, many of them were bills for these purposes, and most of the others were concerned with the alteration of settlements and entails, which restricted the sale or inheritance of landed estates. From about 1750, however, a growing number of private bills were concerned with the construction of toll roads, canals, railways, reservoirs and other works, and with the local government of boroughs and other areas, such as vestries. More recently, the majority of private bills have been those promoted by local authorities and statutory undertakers for the better fulfilment of their functions by the conferring of powers which the ordinary law does not give them.2 The range of activities requiring private bills further narrowed during the course of the last century as an increasing number of functions came to be governed by public general Acts.3

The 1980s saw a resurgence of private legislation to authorise railway, underground and tramway schemes, as well as harbour installations and river barrages. As a consequence, a Joint Committee was established in January 1987 to examine the processes of enacting private legislation and to consider, in particular, whether there were matters effected by private bills which could be more appropriately dealt with in some other way. The Report of the Joint Committee,4 published in October 1988, recommended, in addition to a number of procedural changes, that construction projects of the kind described above should be implemented not by private legislation but through public local inquiries and ministerial orders. Its recommendation was carried into effect by the Transport and Works Act 1992 (c 42) (see para 42.17 for more detail about the Act).

The result of the passing of that Act was that the number of petitions deposited for private bills declined markedly: indeed, no petitions were deposited in 2017 and 2018.5 The section of Erskine May which deals with private business was abbreviated in the 24th edition to reflect this trend. While the detailed body of precedent set out in previous editions (particularly in the 21st edn, 1989, pp 789–975) should not be regarded as superseded, the primary purpose of the chapters which follow is to describe current practice.

Before agreeing to exemption from, or amendment of, the general law in particular local circumstances, Parliament has always required proof, first of the need for the exemption or amendment, and second of the fact that the need is, at any rate in part, that of the promoters of the bill.6 The interest of the promoters in the bill is a matter on which the Speaker may rule at the time when the order for second reading of the bill is read,7 and ‘proof of need’ is, as regards the detailed clauses of a private bill, normally assessed by committees of each House.

In passing public general bills, Parliament acts strictly in its legislative capacity: it originates such measures of public policy as it considers appropriate, it conducts inquiries, when necessary, for its own information, and enacts laws in accordance with its own judgment.

In passing private bills Parliament still exercises its legislative functions, but its proceedings are also of a judicial character. The persons who are applying for powers or benefits appear as petitioners for the bill, while those parties who fear that their interests may be adversely affected by its provisions have the opportunity to oppose it. Many of the formalities of a court of justice are maintained; various conditions are required to be observed and their observance to be strictly proved; and if the parties do not meet such requirements, the bill will not be permitted to make further progress.

This union of the judicial and legislative functions is not confined to the forms of procedure, but is an important principle in the inquiries and decisions of Parliament on the merits of private bills. As a court, it inquires into and adjudicates on the interests of private parties; as a legislature, it is concerned to safeguard the interests of the public. The promoters of a bill may prove beyond a doubt that their own interests will be advanced by its success and no one may complain of injury or urge any specific objection, but if Parliament considers that it may be damaging to the community as a whole, it will reject the bill or impose conditions or restrictions which were not sought by the parties. The Chairman of Ways and Means in the House of Commons and the Senior Deputy Speaker (formerly known as the Chairman of Committees) in the House of Lords are entrusted with the general supervision of private business (see paras 43.12, 45.14 ), while government departments are also required to scrutinise all private bills (see para 45.15 ).

Although private bills are examined by officers of each House, contested by the parties before committees and are subject to notices, forms and intervals unusual in other bills, when they come before either House they are treated at each stage in a broadly similar way to public bills. They are read the same number of times and similar questions are put,8 except when any proceeding is especially required by the standing orders, and in general the same rules of debate and procedure in the House are maintained throughout.

The Court of Chancery could, in theory, grant an injunction preventing persons from petitioning for or against private bills.9 The jurisdiction of the Court was frequently invoked in the nineteenth century, and was reaffirmed in 1942.10 However, the courts have expressed their great reluctance to interfere, and have emphasised that the strongest possible arguments must be adduced to obtain relief, and there appears to be no case on record where an injunction has been upheld. For instance, in British Railways Board v Pickin, the House of Lords (in its judicial capacity) ruled that the courts had no power to disregard an Act of Parliament, whether public or private, nor had they any power to examine proceedings in Parliament in order to determine whether the passing of an Act had been obtained by means of any irregularity or fraud (see para 16.10 ).11

Footnotes

  1. 1. House of Commons Private Business Standing Orders, HC 1573. These are distinguished from the public business standing orders by being referred to as SO XX, rather than SO No XX.
  2. 2. Under the Town and Country Planning Act 1990, a statutory undertaker means a person authorised by any enactment to carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of hydraulic power and a relevant airport operator.
  3. 3. For example, the Naturalization Act; the Divorce and Matrimonial Causes Acts; the Education Acts; the Municipal Corporation Acts; the Public Health Acts; the Local Government Acts for England and Wales and Scotland; the Water Act 1945; the Town and Country Planning Act 1947; the Trustee Investments Act 1961; the Local Government (Miscellaneous Provisions) Act 1976; and the Local Government (Miscellaneous Provisions) Act 1982.
  4. 4. HC 625, HL 97 (1987–88).
  5. 5. For the history of private bills since the passing of the Act, see Frank Cranmer ‘Private Business in the House of Commons: Managing the Challenges of Decline’ The Table (2002), pp 37–42.
  6. 6. See Report of the Joint Committee on the Promotion of Private Bills, HL 176, HC 262 (1959).
  7. 7. See para 45.5.
  8. 8. For the difference in practice on consideration of public and private bills and on consideration of Lords amendments, see paras 45.2645.30, 45.36.
  9. 9. Heathcote v North Staffordshire Rly Co (1850) 42 ER 39; Stevens v South Devon Rly (1851) 51 ER 18; Lancaster and Carlisle Rly v London and North Western Rly (1856) 69 ER 792; London, Chatham and Dover Railway Arrangement Act, Re, ex p Hartridge and Allender (1869) 5 Ch App 671.
  10. 10. Bilston Corpn v Wolverhampton Corpn [1942] 2 All ER 447. Its validity has, however, been questioned; see Holdsworth History of English Law, xi, p 361, cf also 59 (1943) Law Quarterly Review 2, 71 (1955) ibid 336; and Hanbury and Martin Modern Equity (16th edn), p 831.
  11. 11. [1974] 1 All ER 609. But see Fairfold Properties Ltd. v Exmouth Docks Co (1990) TLR 661, where the court held that an order to the promoter of a private bill to withdraw it did not constitute an interference with the proceedings of Parliament (see para 16.10, fn 5).