The Court of Referees
44.4The Court of Referees1 consists of the Chairman of Ways and Means, the Deputy Chairmen, and the Counsel to the Speaker, with not fewer than seven other Members of the House, who are appointed by the Speaker.2 Three Referees are enough to constitute each court.
The duty of the Court of Referees is to determine the rights of petitioners against private bills to be heard (known as locus standi prior to the revision of the Private Business standing orders in November 2017). The Court's decisions are without prejudice to the power of the committee to which the bill is referred to decide any question relating to such rights arising incidentally in the course of its proceedings. Standing Order 90 defines the jurisdiction of the Court of Referees.
The decisions of the Court of Referees since its inception have been collected in a published series of ‘Locus Standi Reports’,3 and are described in detail in previous editions of Erskine May.4 In practice, a high percentage of the cases considered by the court, particularly in the late nineteenth century and again in the decade prior to the Transport and Works Act 1992, concerned objections to petitions against railway and other ‘works’ bills. The effect of that Act, and the consequent drastic reduction in the volume of private bills has meant that the court now meets only rarely.5 It should be remembered, however, that decisions of the court are binding upon select committees on hybrid bills when they come to decide questions of the rights of petitioners to have their petition considered (see para 30.67 ).6
The practice and procedure of the Court of Referees, the times of sitting, order of business, and the forms and notices required in its proceedings are prescribed by rules framed by the Chairman of Ways and Means under Standing Order 91 and subject to alteration by them as required. These rules and alterations must be laid on the Table of the House and are published.7
Under Standing Order 91A, a petitioner is entitled to be heard before the court in person or by counsel or agent in support of that right. Similarly, the promoters are entitled to be heard in person or by their counsel or agent in opposition to the petitioner. Only one counsel, however, may appear in support of the petitioner and one in opposition.
The promoters of a bill who intend to object to the right of petitioners to be heard against it are to give notice of such intention, and of the grounds of their objection, to the Clerk of the Court of Referees and to the agents for the petitioners, not later than the eighth day after the day on which the petition was deposited in the Private Bill Office.8 The Court may, however, permit such notices to be given under special circumstances after the prescribed time has expired.9 Such notices may also be withdrawn by notice in writing given in the Private Bill Office. A copy of the notice must be served upon the agents for the petitioner on the same day.
Where the jurisdiction of the Court of Referees does not apply, as is the case with hybrid bills, and the promoter intends to object to the right of a petitioner to have their petition considered by the committee, notice of the intended objection, stating the grounds, is deposited in the Private Bill Office and served on the petitioner or their agents or representatives at least five clear days before the first sitting day of the committee on the bill (which considers questions of rights of petitioners to be heard by the committee in such cases) (see para 30.67 ).
If no one appears in support of the petition before the Court of Referees, the petitioners' right to be heard is disallowed.10 If the petitioners appear, the counsel, agent or representative for the petitioners supports their claim; and the counsel or agent for the promoters is heard in reply—the speeches being limited to one on each side.11 For the purposes of argument on questions of a petitioner's right to be head, the allegations of a petition are ordinarily admitted: but where the right of petitioners to be heard depends upon special facts which are disputed, they may be called upon to give prima facie evidence in support of their case.12 Where documents are to be relied on or witnesses called, the documents or notice of the witnesses are deposited in the Private Bill Office not later than three clear days before the hearing of the case.
If the petitioners have called evidence in support of their prima facie case, the promoters are not permitted to call rebutting evidence.13 Recorded divisions are not normally taken; the Chair counts the votes and declares the result by a majority. The Chair has a vote, but no casting vote. The Court of Referees has no power to award costs.14
Some petitioners pray to be heard against the preamble and clauses of the bill, some against certain clauses only; and others pray for the insertion of protective clauses, or for compensation for damage which will arise under the bill. A petitioner's right to be heard is always limited to the points alleged in their petition.15 The Court may limit a petitioner's right to be heard still further to a restricted number of the provisions in the bill to which the petitioner has objected. In giving its decision in such cases, the Court limits the petitioner's right to be heard, not to certain portions of their petition, but to certain portions of the bill.16
- 1. SO 89, 90. For the distinct procedure in the Lords for determining questions on the right to petition, see para 46.23.
- 2. Members of the Court of Referees are normally appointed for the duration of a Parliament, see for example Votes and Proceedings, 13 April 2016.
- 3. For reports of cases of locus standi decided by the Court of Referees in 1865 (the first year of its jurisdiction) and in 1866, cf S. For the years covered by subsequent reports of cases, see the Table of Abbreviations under C & S, C & R, R & M, R & S, S & A, S & B and B. Subsequent volumes have been [1936–60] LSR, [1960–83] LSR, [1983–91] LSR (HC 583 (1990–91)) and [1991–2006] LSR (HC 1707 (2005–06)). The last volume is also available on the parliamentary website (www.parliament.uk ).
- 4. See eg Erskine May (21st edn, 1989), pp 842–58.
- 5. The court met once in 2016; prior to that meeting, it had last met in 2002.
- 6. It therefore follows that, while cases such as those concerning the rights of frontagers against a tramway bill (SO 102) can no longer arise on a private bill, precedents on this subject could be prayed in aid by a select committee on a hybrid bill.
- 7. The present rules are dated 19 November 2002, HC 88 (2002–03), and are published with the Private Business Standing Orders, HC 1573 (2017–19).
- 8. Rules for the Practice and Procedure of the Court of Referees, Rules 1 and 2. The time allowed for serving such notices of objection is exclusive of the day on which the petition was submitted, S 6, App 97; 2 C & S 2.
- 9. Permission granted, R & M 173; not granted, R & S 11, 159.
- 10. [1983–91] LSR 105; HC 88 (2002–03) Rule 19. A similar provision applies to the promoters.
- 11. HC 88 (2002–03) Rule 15.
- 12. S 11, 12, App 93; 1 C & S, App 41; 3 C & R 155, 316, 319; 1 S & A 294. If a witness's attendance can be obtained only by order of the House, the House makes the order (CJ (1866) 116–117). See also HC 88 (2002–03) Rule 16.
- 13. 1 S & A 197–98.
- 14. 1 C & S 7.
- 15. 1 C & S, App 6; Metropolitan District Railway Bill 1868.
- 16. Cf 2 C & R 130; 2 S & A 191; 1 B 70; [1936–60] LSR 3; and see HC 88 (2002–03) Rule 17.