Northern Ireland Assembly Flax Flower Logo
Session 2008/2009
First Report

COMMITTEE ON PROCEDURES

Report on
the Inquiry into
Private Legislation

Together with the Minutes of Proceedings of the Committee relating
to the Report and the Minutes of Evidence

Ordered by The Committee on Procedures to be printed 8 October 2008
Report: 9/08/09R Committee on Procedures

This document is available in a range of alternative formats.
For more information please contact the
Northern Ireland Assembly, Printed Paper Office,
Parliament Buildings, Stormont, Belfast, BT4 3XX
Tel: 028 9052 1078

Committee on Procedures
Membership and Powers

The Committee on Procedures is a Standing Committee of the Northern Ireland Assembly established in accordance with paragraph 10 of Strand One of the Belfast Agreement and under Assembly Standing Order 54. The Committee has 11 Members including a Chairperson and Deputy Chairperson and a quorum of 5.

The Committee has the power to:

The Committee first met on 16 May 2007.

The Membership of the Committee since its establishment on 9 May 2007 has been as follows:

* Mr Mickey Brady replaced Mr Willie Clarke as of 20 May 2008.

Table of Contents

Report

Executive Summary

Summary of Recommendations

Introduction

Consideration of Key Issues

Appendix 1

Minutes of Proceedings relating to the Report

Appendix 2

Minutes of Evidence

Appendix 3

Written Submissions

Appendix 4

Other Papers

Executive Summary

1. At its meeting on 30 May 2007 the Committee on Procedures agreed to undertake an inquiry to address the need for procedures for taking private legislation through the Northern Ireland Assembly.

2. Private legislation is a bill for the purpose of obtaining for an individual, body corporate or an unincorporated association of persons particular powers, exemptions or benefits in excess of or in conflict with general law and includes a bill relating to the estate, property, status or style, or otherwise relating to the personal affairs, of the promoter.

3. As part of its initial scrutiny of private legislation, the Committee sought comparative research on procedures in other legislatures and arranged best practice visits to the Scottish Parliament, Westminster and the Dáil. In its call for evidence the Committee received nine written submissions and took oral evidence from six organisations.

4. An analysis of the evidence highlighted a number of key issues which included: the proposed Assembly stages for private bills; application of fees; objections to a private bill; private bill committees and hybrid bills.

5. From the evidence received, the Committee considered that the stages of a private bill should reflect those in place for public bills for the Assembly. These include: Preliminary Scrutiny; Introduction (first stage); Second Stage; Committee Stage; Consideration Stage; Further Consideration Stage and Final Stage. The Committee’s consideration of each of these stages is covered separately in the report.

6. This report represents the outcome of the Committee’s consideration of the inquiry into private legislation. The key areas that the Committee focused on relate to the importance of private bills undergoing preliminary scrutiny with tests of appropriateness applied before they are introduced to the Assembly; the private bill committee being allowed the power to make amendments; and the promoter and objector being able to present their case and cross examine each other during the Committee Stage. Also, highlighted within the report are the need for possible adjournment of Consideration Stage, the introduction of appropriate fees and criteria for the assessment of objections.

7. In conclusion, the report contains 26 recommendations which aim to put in place a robust process with an efficient and effective set of procedures for taking private legislation through the Northern Ireland Assembly.

Summary of Recommendations

Recommendation 1

The Committee on Procedures recommend that private bills should undergo a preliminary scrutiny before they are introduced to the Assembly and that the tests for the appropriateness of a private bill should be carried out at pre introductory stage.

Recommendation 2

The Committee recommend that an official of the Assembly (to be known as the Examiner of Private Bills) should undertake a preliminary scrutiny of the bill with a view to reporting to the Speaker on whether it meets the special requirements for private bills as laid down in Standing Orders.

Recommendation 3

The Committee recommend that the promoter must be able to demonstrate to the Examiner of Private Bills that the bill meets a number of criteria before being eligible for introduction.

Recommendation 4

After due consideration the Committee recommend that the stages for private bills should, as far as possible, reflect those in place for public bills for the Assembly.

Recommendation 5

The Committee on Procedures recommend that the introduction of a private bill will be an announcement by the Speaker that a private bill has been received and will now be published.

Recommendation 6

The Committee recommend that there should be a minimum of 60 working days between first and second stage.

Recommendation 7

The Committee recommend that the private bill committee established at first stage should report to the Assembly on the principles of the bill and invite, receive, assess and allow or disallow objections.

Recommendation 8

The Committee recommend that both the promoter and the objectors be allowed to present their case to the private bill committee, are able to call witnesses to support their evidence, that the promoter and objector be allowed to cross examine one another under the direction of the committee and be allowed legal representation.

Recommendation 9

The Committee on Procedures recommend that private bill committees should have the power to amend a bill in committee.

Recommendation 10

Where no objections have been received, the Committee recommend that the private bill be referred to a private bill committee.

Recommendation 11

The Committee on Procedures recommend that the Consideration Stage of a private bill should follow the procedures and protocols for a public bill.

Recommendation 12

The Committee on Procedures recommend that the Further Consideration Stage of a private bill should follow the procedures and protocols for a public bill.

Recommendation 13

The Committee on Procedures recommend that the Final Stage, Reconsideration Stage and Royal Assent of a private bill should follow the procedures and protocols for a public bill.

Recommendation 14

The Committee on Procedures recommend that private bills should not be subject to the Standing Order which provides for accelerated passage.

Recommendation 15

The Committee on Procedures recommend that where a bill has not completed its passage by the end of an Assembly session it shall be carried forth and its passage continued into the next session.

Recommendation 16

The Committee on Procedures recommend that a private bill shall not be carried forth if the Assembly stands dissolved or is suspended.

Recommendation 17

The Committee on Procedures recommend that it will be appropriate for the Assembly Commission to apply a fee of £5,000.00 to the promoter of a private bill to cover the administration costs that will arise from the Assembly Stages of the bill.

Recommendation 18

The Committee on Procedures recommend that fees for charitable religious and educational organisations and for literary or scientific purposes from which no private profit or advantage is derived be reduced by 75%.

Recommendation 19

The Committee recommend that late objections will be allowed in special circumstances.

Recommendation 20

The Committee on Procedures recommend a list of criteria for an objection to a private bill.

Recommendation 21

The Committee recommend to the Northern Ireland Assembly Commission that the fee for an objection be set at £20.00 and in the event of a withdrawal of the objection, is non refundable.

Recommendation 22

The Committee on Procedures recommend that a private bill committee in the Assembly has a membership of five appointed by motion from the Business Committee.

Recommendation 23

The Committee on Procedures recommend that the quorum of the private bill committee will be three and full attendance of the membership will be required unless special circumstance prevents a Member from attending.

Recommendation 24

The Committee on Procedures recommend that a private bill committee will elect its chairperson and deputy chairperson at its first meeting and that voting will be by simple majority. Given the small number of members, the Committee on Procedures further recommend that in the event of a tied vote, the chairperson should have a casting vote.

Recommendation 25

The Committee on Procedures recommend that private bill committees may exercise the powers in section 44(1) of the Northern Ireland Act.

Recommendation 26

The Committee on Procedures recommend that, prior to the introduction of the Assembly’s first private bill, detailed guidance for promoters and objectors be published by the Bill Office.

Introduction

Background

1. On 30 May 2007 the Committee on Procedures agreed to undertake an inquiry into procedures to enable the introduction of private legislation. The inquiry was to consider all the procedures relating to a bill such as: stages for private bills; fees; objections to a private bill; and private bill committee and hybrid bills.

2. The following terms of reference was agreed at a Committee meeting on 14 November 2007:

3. The Committee agreed that the methodology for the inquiry should include:

The Committee’s Approach

4. A public notice was placed in the main provincial newspapers on 4 December 2007, inviting written evidence in respect of the Committee’s inquiry into private legislation.

5. In response to its call for evidence, the Committee received nine written submissions from the following organisations:

6. In addition to the above, the Committee sought advice from Assembly Legal Services and commissioned Assembly Research and Library Services to inform its initial considerations.

7. The Committee noted that its visit to the Irish Parliament on 6th February was particularly interesting and useful as parliamentary staff were able to illustrate procedures on private bills with reference to a number of actual bills.

8. On 20 February 2008, the Committee took oral evidence from six organisations. The evidence from Westminster and the Scottish Parliament was particularly helpful in highlighting to the Committee that preliminary scrutiny can smooth the passage of a bill and that the test of appropriateness is best carried out at the preliminary stage. The representatives of the Society of Parliamentary Agents, London and The Law Society of Northern Ireland also concurred with this position. The evidence from the National Trust provided the Committee with an insight into the experience of taking a private bill through Westminster and Derry City Council expressed their views to the Committee of their considerations to a proposed private bill.

9. The Committee weighed up the issues arising from the evidence received from witnesses and carefully examined the procedures and practices involved with a private bill in other legislatures. The Committee’s consideration of these issues is covered separately in the report.

10. At its meeting on 8 October 2008, the Committee on Procedures agreed its report on Procedures on private bills and agreed that it would be printed.

Consideration of Key Issues

Background

11. The Assembly’s existing Standing Orders acknowledge the need for procedures to enable the introduction of private legislation. Standing Order 13(1) states that “Private Bills shall be subject to the same stages as those laid down for Public Bills and the procedure on such Bills shall be subject to such further requirements as from time to time are ordered by the Assembly.”

12. While no specific procedures exist at the moment for dealing with private legislation in the Northern Ireland Assembly, in 2008 the Committee on Procedures undertook an in-depth inquiry into possible procedures that may be adopted by the Assembly. This included a research exercise examining practices in other legislatures where private legislation is subject to significantly different procedures to those used for public bills. The inquiry also included good practice visits, calling for written submissions and the taking of evidence from a number of witnesses.

13. This report represents the policy position taken by the Committee on Procedures on private legislation and once agreed by the Northern Ireland Assembly the next step will be the preparation of new Standing Orders and the development by the Bill Office of detailed guidance to enable the Assembly (and the public) to deal with private legislation in a manner appropriate to its particular circumstances.

14. An examination of the history of private legislation in Northern Ireland has revealed that the circumstances leading to many of the bills presented to previous local legislatures are unlikely to recur in the future. This is mainly due to the fact that the expansion in the body of public law over the years has reduced the need for individuals and bodies to resort to private legislation. The Scottish Parliament has seen a number of private bills introduced since devolution, however, many of these have related to the need to provide non-departmental bodies (local authorities, transport companies) with vesting and other powers necessary for major transport and works projects to be carried out. The situation in Northern Ireland is different and such projects are subject to normal planning inquiries, with vesting and other essential powers exercised by the responsible government departments. The scope for private legislation is, therefore, quite limited and in the main is likely to involve bills related to the legislative arrangements for (particularly the constitutional arrangements of and endowments to) charities, colleges or churches, matters related to the powers of local authorities and in the general area of company law. In the course of undertaking this inquiry advice was sought from the various departments regarding the likelihood of a “works” type private bill being introduced to facilitate the construction of a light railway or other form of rapid transit system and on the likelihood of a local authority taking a private bill. The response received from Department of the Environment (DoE) indicated that under the current Northern Ireland system of local authorities, there was little likelihood of such a bill in the foreseeable future. The response from Department for Regional Development (DRD) (the Department most closely involved with transport projects) indicated that should such a need arise in the future, the Department would sponsor it through a public bill.

15. In 2007 the National Trust introduced, in Westminster, a private bill related to its governance structures in Northern Ireland. This private bill would have come to the Assembly had it been restored at that time. Additionally, Derry City Council quite recently investigated the possibility of private legislation to release the Council from the effects of a restrictive trust on use of its land. These examples are sufficient to demonstrate that a private bill could be presented to the Assembly at any time.

16. In devising procedures for private legislation, the Committee inquired into a number of key topics or issues including:

Proposed Assembly stages for private bills

Preliminary scrutiny

17. Public bills introduced by the Executive have normally been subject to public consultation and the relevant Assembly committee will in general have been kept informed and been involved in the drafting of the policy objectives. This ensures that Members of the Legislative Assembly (MLAs) on the whole have a good knowledge and understanding of the proposed public bill and its policy objectives. However, this may not be the case with private bills. While pre introductory scrutiny is the norm for executive public bills, research showed that in many other legislatures, MLAs may only become aware of a private bill when it is introduced. Therefore, in common with both procedures at Westminster and the Scottish and Irish Parliaments, the Committee deliberated on a unique set of preliminary scrutiny procedures for private bills. The aim of this phase is to ensure that private bills will satisfy the statutory requirements pertaining to legislation in Northern Ireland as well as meet criteria that the Committee feel are important to safeguard public interests. Evidence from the Scottish Parliament also suggests that preliminary scrutiny can smooth the passage of a bill:

“This pre introduction scrutiny, which is very time consuming, did reduce the number of formal amendments required and I am also fairly sure it also reduced the number of objections received to these later bills”

Written evidence on private bill procedures, Scottish Parliament.

18. When investigating pre introduction criteria the Committee focused on a number of issues including whether the bill is appropriate as a private bill.

19. The Committee on Procedures, having agreed that a preliminary scrutiny was desirable, explored when it should take place, who should undertake it and what it should cover to decide whether it is appropriate to be introduced. Appropriateness is defined by the Committee as proof of need, no alternative methods, and appropriate subject matter. In the Scottish Parliament the task of assessing whether the bill is appropriate to proceed as a private bill is carried out by a private bill committee at Preliminary Stage. This situation is different in the UK Parliament:

“In the UK Parliament, there is no intervening stage between introduction and second reading, or indeed between second reading and committee stage. If there are questions about whether the subject matter of a private bill is appropriate, then the Speaker of the House of Commons can draw this to the attention of the bill to the House on its second reading. Although this has not happened for a number of years... such issues may arise for example if a private bill contains matters which would more appropriately be dealt with as a matter of public policy in a Public bill. The Speaker would normally take advice from his counsel on issues such as this....

The fact is that there have been no recent cases in the UK Parliament and none in the Scottish Parliament where a private bill has not been allowed to proceed because the subject matter is inappropriate for a private bill. That is not to say that it would not happen again, but it would be fair to say that promoters of private legislation realise that it is important to ensure that they have taken advice on the issue first.”

Written evidence, Society of Parliament Agent.

20. Advice received in written evidence from the Clerk of Bills in the House of Commons also indicated that the test of appropriateness is better carried out at pre introductory stage:

“Any test of appropriateness would be better carried out at the pre introduction stage, with the responsible Assembly officer forming a view on the basis of legal advice and precedent and, if necessary, making a recommendation for a ruling to the Speaker.”

Written evidence from the Law Society of Northern Ireland also concurred with this position and indicated that preliminary requirements for a private bill should include evidence that the bill is exclusively private in content and is the most appropriate mechanism available to meet the needs of the promoter.

21. Based on the evidence provided to it and on the desire of the Committee that parliamentary time should not be wasted, the Committee on Procedures recommend that private bills should undergo a preliminary scrutiny before they are introduced to the Assembly and that the tests for the appropriateness of a private bill should be carried out at pre introductory stage.

22. The Committee do not feel it is fitting that a private bill should be allowed to be introduced if it is not appropriate. To do so would represent a waste of time and resources for the promoter, the objectors and the Parliament.

23. Another area which the Committee focused on for preliminary scrutiny was that of consultation by the promoter with those likely to be affected. Research and oral and written evidence presented to the Committee by Westminster and the Scottish Parliament indicated that early engagement by the promoter with those affected by the provisions of the private bill can help to ensure that many concerns are addressed and accommodated before introduction. This in turn leads to a smoother passage and minimises the resource implications as well as reducing the number of formal amendments.

24. The Committee did consider formalising a specific consultation process into Standing Orders on private bills. However, it noted that good practice in consultation methodology changed constantly and agreed that rather than have a specific Standing Order in this area, which may quickly become dated, Standing Orders should indicate that the promoter would be expected to undertake a consultation commensurate with current good practice and with the specifics of the bill.

25. In coming to this recommendation the Committee discussed with Ms Ruddock and Mr Thompson of the National Trust Northern Ireland, the consultation undertaken by that organisation when it took a private bill through Westminster procedures.

26. The Committee observed that the consultation was totally compliant with Westminster Standing Orders. However, that compliance meant that it was only advertised in the London and Belfast Gazette. The Committee did not believe that this, in Northern Ireland terms, represented good practice consultation although it did note that the National Trust did contact all Northern Ireland Members of Parliament (MPs) and did consult with the Department of Social Development.

27. The Committee also examined other criteria for preliminary scrutiny such as ensuring that the promoter provides all relevant documentation, demonstration that an organisation seeking the private bill has the support of its members, that it meets Assembly drafting requirements and complies with section 6 of the Northern Ireland Act and is accompanied by a fee (see paragraphs 84-90 for information on fees).

28. The Committee discussed in detail whether this preliminary scrutiny should be carried out by an Assembly committee or by an official. It noted that in general the preliminary scrutiny is largely formal and procedural in nature and that therefore, it would be adequate for it to be carried out by an official who would provide a report to the Speaker. This report would also be made available to the private bill committee.

29. The Committee recommend that an official of the Assembly (to be known as the Examiner of Private Bills) should undertake a preliminary scrutiny of the bill with a view to reporting to the Speaker on whether it meets the special requirements for private bills as laid down in Standing Orders.
30. The Committee recommend that the promoter must be able to demonstrate to the Examiner of Private Bills that the bill meets a number of criteria before being eligible for introduction. These criteria should include:

a. that there is “proof of need”. In other words, the promoter has proven that there is a real need for the legislative exemption, power or amendment being sought;

b. that alternatives to the promotion of a private bill have been sought and investigated. An explanation should be provided detailing why alternatives to a private bill are not suitable;

c. that the explanatory and financial memoranda are available and are in order;

d. that comprehensive statements are provided on areas such as the policy objectives and the consultation undertaken etc. The promoter will be expected to demonstrate that they have taken all reasonable steps to draw the bill provisions to the attention of those individuals and bodies who will be affected and in particular, those who will be adversely affected. The promoter should, for example, place public notices in the regional papers and relevant local papers and undertake other appropriate forms of consultation concurrent with good practice. The promoter will be expected to provide in the statement to the Examiner, the names and addresses of those whom they have identified as potentially being affected by provisions of or the entirety of the bill. They should also provide detailed information to those affected on how they can object to the bill using parliamentary procedures. The promoter will be expected to demonstrate in the statement, that they have engaged with those affected at an early stage and to demonstrate that they have attempted to address as many concerns and objections as possible before the bill is formally introduced;

e. that all relevant documents such as maps and diagrams are provided;

f. that proof has been provided that where an organisation is seeking the private bill, a resolution has been passed approving the promotion of the bill. The promoter must be able to demonstrate that this resolution is in accordance with the internal procedures of the organisation. Additionally, the promoter must demonstrate that the resolution has the support of 75% of the members of the organisation who voted. In exceptional circumstances the promoter may, in writing request an exemption to this requirement. The request must clearly lay out the reasons for the setting aside of the Standing Order and will subsequently be scrutinised by the Committee on Procedures. The Committee on Procedures will make a decision on whether to allow for the Standing Order to be set aside and that decision will be final;

g. that the private bill meets the layout and drafting requirements of the Northern Ireland Assembly;

h. that a comprehensive and reasoned statement has been provided which demonstrates how the proposed bill complies with section 6 of the Northern Ireland Act 1998 and that the consent of the Secretary of State has been given for the inclusion of any provision which deals with excepted or reserved matters;

i. that the private bill does not have any provision that will have the effect of authorising sums to be paid out of the Consolidated Fund; and

j. that the private bill promoter has provided contact details, that the private bill has been signed and dated and that it is accompanied by the fee.

31. The Examiner of Private Bills may enter into discussions at an early stage to assist the promoter in ensuring that they are able to meet the above list of requirements. However, the Committee does not believe that the Assembly should be proactive in this aspect and noted the following evidence from Mr Alan Sandall, Acting Clerk of Bills in the House of Commons:

“...it is always the responsibility of the promoter to make the case for their bills. They must prove that, as far as the public interest is concerned, the project for which authorisation is sought is a good idea and cannot be authorised by any means other than parliamentary authority.”

Stages for private legislation

32. In its consideration of the stages that a private bill should pass through, the Committee examined in detail, both through research and through oral and written evidence the procedures in place in the Scottish Parliament and in Westminster. The Committee examined the five stages operated by both the House of Commons and House of Lords and the four stages operated by the Scottish Parliament. It also considered the stages in place for public bills in the Assembly. After due consideration the Committee recommend that the stages for private bills should, as far as possible, reflect those in place for public bills for the Assembly. The Committee noted that in following established Assembly procedure, private bills in Northern Ireland would have additional stages over and above those in place in other legislatures. However, MLAs have a degree of familiarity with the stages for public bills. As private bills are expected to be few and far between, the familiarity of the stages should assist towards a smooth passage.

33. While the recommendation is that the stages for a private bill remain as per those for public bills, the Committee also recommend differences in the amount of time between the stages and in the role of the private bill committee. The Committee consideration of the differences is discussed in the following paragraphs.

34. A diagram at page 23 summarises the stages recommended by the Committee.

Introduction (First Stage)

35. The Committee considered the issue of the introduction of a private bill noting that public bills are introduced by a Minister or a MLA. It noted that in the UK Parliament a private bill is founded on the basis of a petition to the Crown. Westminster Standing Orders state that petitions for private bills (with copies of the bill attached) must be deposited on or before 27th November. The bill then undergoes examination for compliance with Standing Orders and is presented to the House on 21st January (or first sitting day thereafter). Since 1945 it is no longer necessary for a Member to present bills – private bills are presented by the Clerk of the House.

36. Standing Orders of the Scottish Parliament do not require a Minister or member to introduce a private bill. In Scotland a private bill is introduced by the promoter by being lodged with the Clerk on any sitting day.

37. The Committee on Procedures recommend that the introduction of a private bill will be an announcement by the Speaker that a private bill has been received and will now be published. The Speaker will not normally introduce a private bill until receipt of the preliminary examination report from the Examiner of Private Bills. The Speaker will announce that the Business Committee has agreed to establish a private bill committee and the names of the Members who will serve on the private bill committee.

38. Notice of the formal introduction of a private bill will be published in the Assembly’s Weekly Information Bulletin.

Period between first and second stage

39. The Committee recommend that there should be a minimum of 60 working days between first and second stage. In coming to this recommendation, the Committee took note of a number of factors. The first factor to be considered was the lodgement of objections. The Committee spent considerable time discussing the lodging of objections and was particularly concerned that the objector was provided with sufficient time to prepare objections to the bill. The Committee deliberated on procedures in other legislatures and considered that 42 working days was sufficient for the lodgement of objections. This then allowed 18 working days for consideration of objections against a set of criteria discussed in paragraphs 99-100.

40. Another factor which contributed to the recommendation for a minimum of 60 working days between first and second stage was that unlike public bills promoted by Ministers, committees or individual MLAs, the Assembly is likely to have no prior knowledge of a private bill or its legislative objectives. The Committee agreed that it would be appropriate to allow 60 working days to elapse to ensure that MLAs have sufficient time to consider the provisions of a bill before the second stage debate on its principles.

41. The Committee on Procedures considered that in coming to conclusions on the principles of a private bill, it is likely that the private bill committee would normally only seek written evidence. However, there may be occasions when a private bill committee feel it is necessary to seek oral evidence. In such a situation, the private bill committee should ensure that oral evidence is restricted to the principles of the bill and does not stray into matters which should be dealt with at Committee Stage. The taking of oral evidence should be conducted as per normal Assembly committee procedures.

42. In order to assist the Assembly in its consideration of the principles of the bill at second stage, the Committee recommend that the private bill committee established at first stage should report to the Assembly on the principles of the bill and invite, receive, assess and allow or disallow objections.

43. The Committee came to this recommendation after lengthy discussion. There was agreement that as it was unlikely that individual MLAs would have the time to consider the principles of the bill in-depth, a workable and practical option would be to require the private bill committee to carry out this task and report to the Assembly at the second stage debate. Likewise, requiring the private bill committee to take responsibility for the receipt, assessment and allowing or disallowing the objections would also be a workable and practical option.

44. During the 60 working day period between first and second stage, the private bill committee would be able to call for additional information from the promoter, if required, seek advice from the Assembly Legal Services and appoint specialist or technical advisors if required. Specialist or technical advisors may be appointed to assist the Committee in the assessment of objections and other tasks although the Committee agreed that the private bill committee would not normally seek oral evidence or enter into correspondence with objectors at this stage. The private bill committee would also publish in the Assembly Weekly Information Bulletin a list of objections received and whether they were allowed or disallowed indicating whether the allowed objections were to the whole bill (an objection to the principles of the bill) or to part of the bill. Objectors whose objections have been admitted would be allowed, at committee stage, to come before the private bill committee and present their case.

Second Stage

45. Second Stage of a private bill will be a minimum of 60 working days after Introduction Stage.

46. The Second Stage of the private bill is a debate to approve the principles of the bill. As with public bills, it is proposed that the Second Stage of a private bill will be moved on a date determined by the Business Committee following the expiry of the period stipulated in Standing Orders (60 working days).

47. During the debate, the chairperson of the private bill committee will outline the main features of the bill. The report produced by the private bill committee between Introduction and Second Stage will inform members and enable detailed consideration of the principles of the bill. The Assembly will vote and the bill will either pass Second Stage or will fall. Voting will be by simple majority. As with the procedures for public bills, debate will be limited to the principles of the bill.

48. The private bill, on passing its Second Stage, will be referred to the private bill committee for its committee stage.

Committee Stage

49. The Committee Stage of a private bill will commence immediately after the Second Stage. The private bill committee shall have 30 working days from the date of referral (excluding any periods when the Assembly is adjourned for more than three working days) to consider and report on the private bill. The private bill committee may, in the name of the chairperson, table a motion to the Assembly to extend the 30 working days to a date specified in the motion.

50. In line with both the UK Parliament and the Scottish Parliament, the Committee recommend that both the promoter and the objectors be allowed to present their case to the private bill committee, are able to call witnesses to support their evidence, that the promoter and objector be allowed to cross examine one another under the direction of the committee and be allowed legal representation. The rationale for recommending this type of quasi judicial setting is that the private bill committee will be primarily concerned with fact finding and adjudication between the promoter and the objector. The work of a statutory committee is mainly about scrutiny of policy. However, the experience in Scotland, the UK Parliament and the Irish Parliament is that private bill committees will focus on hearing evidence that is factual, intricate and very detailed to enable them to establish fundamental often complex details of a factual nature that can be of a competing nature.

51. Individuals and bodies who have made objections do so because they will be directly and adversely affected by the provisions of the bill. In order to sustain their arguments and present supporting evidence it may be necessary for each party to present their case and call witnesses. It will be the role of the private bill committee to hear the evidence and decide in favour of one party or the other. Evidence presented to the Committee on Procedures from witnesses underlined the importance of allowing legal representation and cross examination. Written evidence from the Law Society Northern Ireland notes:

“Legal representation would assist the promoter and objector(s) in articulating their arguments and ensure the evidence that they present is clear and succinct. Furthermore for members of the general public wishing to object, the prospect of appearing before an Assembly Committee may be daunting. To deny objector(s) the assistance of legal representation might therefore deter their participation in the legislative process.”

And later

“It is recommended that the objectors and promoters be afforded the right to cross-examine one another. Cross-examination is an important mechanism for testing evidence and affords the opposing party the ability to challenge any statement of fact in dispute”

52. The Committee on Procedures gave detailed thought to the aspect of cross examination and legal representation particularly around the issue of management within the private bill committee and the issue of “equality of arms” for objectors who may not be able to afford legal representation.

53. In Scotland, private bill committees have the option of hearing the evidence or appointing an Assessor to hear the evidence on its behalf. This is designed to“reduce the burden on Members of the Scottish Parliament in dealing with what are at times highly complex and technical matters”[1]. The introduction of Assessors in the Scottish Parliament arose largely because many of the private bills were highly technical in nature involving issues such as noise levels and land acquisition through compulsory purchasing. Evidence suggests that it is unlikely that such technical private bills will come to the Assembly.

54. The Committee are not making any recommendation on the involvement of Assembly Legal Services in the cross examination again leaving it up to the discretion of the private bill committee who will decide, based on the specifics of the private bill, whether the promoter and objectors can undertake the cross examination under the direction of the chairperson or whether this is better done with assistance from the Assembly Legal Services.

55. The Committee on Procedures were particularly concerned about the issue of “equality of arms” between promoters and objectors given that objectors are likely to be less well resourced and self confident than the promoter. Examples from other legislatures indicated that objectors, due to lack of resources, often do not have legal representation. Some initial thought was given to the possibility of providing the objector with resources for legal representation but this was quickly ruled out. It is not the role or the responsibility of the Assembly to fund legal representation for objectors and it would be unfair to expect the promoter to pick up such costs. Additionally the Committee was reassured by evidence from other legislatures that the chairperson and members of a private bill committee have been remarkably understanding of this issue and strive to put the objector at ease as well as reassuring them that views will be treated with the same level of seriousness as the promoter. The promoter also understands that the members of a private bill committee will not tolerate hostile cross examination. Mr Sandall in oral evidence to the Committee noted:

“However, we are concerned that private individuals who may not be as well resourced as the promoters of private Bills should have every opportunity to bring their concerns to the attention of the Committee on the Bill. We keep the fees for petitions against a Bill unrealistically low. Objectors are not required to employ a full-time parliamentary agent or a solicitor to act on their behalf. They can act on their own behalf, and in doing so they will have the full assistance and co-operation of the clerks in the Private Bill Office in preparing their case, although we cannot do the basic work for them. We cannot advise on tactics, but we give as much assistance and advice to them as we properly can, within the rules of fairness. A Committee composed of Back-Bench MPs, who are well aware of the position of the small man, will bend over backwards to ensure that an objector is given every opportunity to express his own case and to call into question the promoter’s case.”

56. The Committee also noted the procedure used by Scotland whereby full written disclosure of all evidence in advance is required and that no deviation from the terms of the written evidence was permitted. This procedure, while assisting both the objector and promoter, also ensured that the objector could be as well prepared as possible.

57. The Committee on Procedures recommend that private bill committees should have the power to amend a bill in committee. This is a considerable departure from the practice of the Assembly and has been taken because the role of the private bill committee, as outlined above is substantially different from that of a statutory committee.

58. During the Committee Stage, one of the main roles of the private bill committee is to arbitrate between the interests of the promoter and the objector and in doing so it acts in a quasi judicial capacity. The private bill committee has the responsibility to decide between conflicting claims of private interest. Because of the factual and detailed nature of the bill only the members of the private bill committee are able to consult directly with the promoter and objector on the effects of any proposed amendment. Only the private bill committee has therefore had the opportunity to hear all the evidence and is therefore best placed to make amendments directly to the bill.

59. In the Assembly the majority of amendments to any public bill are normally formulated at Committee Stage. In Assembly statutory committees, the committee make recommendations which go to the Assembly for debate and vote during the Consideration Stage debate. The Minister or member in charge of the bill has ample opportunity to state his or her position on the proposed amendment during the debate while the chairperson and members of the statutory committee are able to defend the amendment and state their position. This procedure can not be duplicated for private bills. Participation in Assembly debate is restricted to elected members and there is no opportunity for the promoter or objector to defend their position. That can only be done in the committee and that is therefore the best place for the bulk of amendments to be made.

60. Amendments will be made after the private bill committee has heard from both the promoter and objector and other interested parties during the clause by clause scrutiny of the bill. In line with established parliamentary practice both in the Assembly, Scotland and at Westminster, the Committee do not foresee that the private bill committee would accept amendments which are beyond the scope of the bill. A private bill committee should also not enlarge the powers sought by the bill as such an amendment may affect individuals and bodies not initially affected and who have not therefore had the opportunity to lodge an objection.

61. On occasion, the promoter may wish to add a new provision or new clause to the private bill. In Westminster this is known as “additional provisions”. Such provisions must be deposited by the promoter before the private bill committee meets at Committee Stage and are subject to the approval of the Speaker and the chairperson of the committee. The Committee on Procedures proposes that when the Speaker and the chairperson have agreed to allow additional provisions, they will be subject to:

62. In its consideration of evidence, a private bill committee can call its own witnesses and should take the views of the relevant government department i.e. a committee considering a private bill relating to a charity will want to take the views of the relevant government departments.

63. The private bill committee will produce a report to assist the Assembly at Consideration Stage.

64. The opportunity for all MLAs to make amendments to the bill will be provided at Consideration Stage.

Committee Stage where no objections have been received

65. Where no objections have been received, the Committee recommend that the private bill be referred to a private bill committee. Private bills ask for an exemption from or amendment to general law. However, many private bills in Westminster are unopposed and in such instances, the role of the Northern Ireland private bill committee will be to assure itself that the bill does not act against government policy and that the interests of the public are safeguarded and that the bill only goes as far as necessary.

“Its proceedings are briefer and less formal than those of a committee on an opposed private bill; but, because there are no opponents of the bill, a special responsibility rests on the committee in its consideration of the preamble and provisions of the bill to ensure that the interests of the public are properly safeguarded ...” Erskine May 23rd Edition, page 1032

66. The promoter will be called to present their case and may call witnesses if they so desire. The private bill Committee will adopt an inquisitional approach; ask questions of the promoter and witnesses and after collecting the evidence may make amendments to the bill.

Consideration Stage

67. The Committee on Procedures recommend that the Consideration Stage of a private bill should follow the procedures and protocols for a public bill. There will be a minimum of five working days between the completion of the Committee Stage and the Consideration Stage.

68. Any MLA may propose an amendment at Consideration Stage under the same conditions as apply to a public bill. For example currently amendments to public bills must be tabled by 4.30pm on the Thursday before the Consideration Stage and are listed on the Marshalled List. Amendments to private bills would be subject to the same procedures. However, where there are a significant number of amendments proposed and/or the amendments are substantive or technically complicated, the Assembly, on a motion, may decide to ask the private bill committee to meet again to consider them and produce a report to aid the Assembly. Standing Orders will allow that such a motion may be tabled by the chairperson of the private bill committee by 9.30am on the day of the debate at Consideration Stage and will ask for an adjournment of Consideration Stage to a time to be decided by the Business Committee who shall consult with the private bill committee. The chairperson should consult with the committee members on such a motion and the motion should state which amendments are being referred to the private bill committee. The motion can not be amended or debated.

69. Where a private bill has been referred back to the committee for consideration of amendments, the private bill committee may make amendments in committee.

70. A mechanism to refer the private bill back to the committee is necessary because some of the proposed amendments may have consequences to existing objectors or indeed affect a new set of people who have not had an opportunity to object. It will also allow the promoter to consider and discuss with the private bill committee the consequences to them of any proposed significant amendments. In addition, such amendments may require consequential changes elsewhere in the bill.

71. The chairperson of the private bill committee will move and wind the debate.

Further Consideration Stage

72. The Committee on Procedures recommend that the Further Consideration Stage of a private bill should follow the procedures and protocols for a public bill. There will be a minimum of five working days between Consideration Stage and Further Consideration Stage.

73. Further Consideration Stage will be a final opportunity to debate and vote on amendments. This stage will allow for corrective (technical or editorial) amendments only to be made to ensure that the bill worked as intended. Where no amendments have been selected the Assembly will be advised that the private bill stands referred to the Speaker. The chairperson of the private bill committee will move and wind the debate.

Final Stage, Reconsideration Stage and Royal Assent

74. These stages will follow existing practice for public legislation with the chairperson of the private bill committee moving the Final Stage and winding the debate.

75. The Committee on Procedures recommend that the Final Stage, Reconsideration Stage and Royal Assent of a private bill should follow the procedures and protocols for a public bill.

Accelerated passage

76. The Committee on Procedures recommend that private bills should not be subject to the Standing Order which provides for accelerated passage.

Scheduling requirements

77. The Committee on Procedures recommend that where a bill has not completed its passage by the end of an Assembly session it shall be carried forth and its passage continued into the next session.

78. The Committee on Procedures recommend that a private bill shall not be carried forth if the Assembly stands dissolved or is suspended. Where a private bill falls because of dissolution or suspension of the Assembly, it may be introduced no sooner than a minimum of 10 working days after the first sitting of the Assembly in the new mandate. If the bill is reintroduced on the exact same terms, the promoter will not be expected to pay a second fee. Objections may also be re-lodged on the exact same terms without payment of fees. Private bills and objections reintroduced on the exact same terms after dissolution or suspension may be expected to pay any top up fees associated with increased charges for the promotion or objection of a private bill. Private bills and objections that have been altered will be expected to pay the agreed fee. In the event of suspension of the Northern Ireland Assembly, the promoter and objector may be entitled to part repayment of fees paid.

Parliamentary Agents

79. The Committee noted that the Westminster Standing Orders on private bills state that the promoter of a private bill must use “Roll A parliamentary agents” but that it is not the case in either Scotland or the Republic of Ireland. To comply with Standing Orders in Westminster, promoters must use Roll A parliamentary agents to promote the private bill and they are responsible for ensuring its compliance with Standing Orders and its passage through either the House of Commons or House of Lords. The Committee noted that the Standing Orders in Westminster are detailed, complex and long standing having initially been devised at a time when the majority of legislation was private. In such circumstances, it makes sense to entrust the drafting and passage of private legislation to companies with expertise and experience.

80. The Committee was particularly interested in the experience of those who had used parliamentary agents and welcomed the oral and written evidence provided by Derry City Council and the National Trust Northern Ireland, both of whom had experience with using parliamentary agents for private legislation. Mr McMahon from Derry City Council noted the following in relation to possible local government private bills:

“Inevitably, the promoter of a local bill would seek legal advice anyway, and parliamentary agents are nothing more than specialised lawyers. Why not go to a specialist lawyer? If you have a legal issue with anything, you want to go to a lawyer who has specialist expertise.”

Mr Thompson from the National Trust remarked in oral evidence to the Committee:

“Drafting Bills is a specialised skill. Parliamentary agents are all lawyers anyway. I know from personal experience that attempts at drafting Bills by people who are not adept at that skill usually leads to bad legislation — if it ever gets that far.”

81. The Committee also noted with interest the views of the Law Society Northern Ireland as expressed by Mr Eakin. In evidence to the Committee, Mr Eakin noted that the expertise in private legislation is not available locally and in such circumstances, “...the use of parliamentary agents is an appropriate and probably invariable, way of proceeding in such matters.” However, Mr Eakin further noted that the Law Society did want local firms, over a period of time to gain expertise and be able to work as recognised parliamentary agents.

82. The Committee considered whether the Standing Orders of the Assembly should insist on the use by the promoter of parliamentary agents. It noted that the in-depth experience and familiarity with the details of procedures could assist in smoothing the passage of a bill. Legislation which is drafted incorrectly may have to go back and forth for correction resulting in a clogging of the system. It further noted the situation in Scotland where there is no requirement to use a parliamentary agent but invariably promoters seem to consistently use parliamentary agents. The Irish Parliament also does not include in Standing Orders a requirement to use parliamentary agents but instead requires that the bill is drafted by a solicitor of at least three years standing.

83. The Committee agreed not to set any constraints on who can act for the promoter of a private bill but strongly suggest that promoters ensure that the draftsperson responsible for the drafting of the bill has detailed and extensive knowledge of drafting legislation, of the laws of Northern Ireland and the legal and drafting conventions of the Assembly.

Fees and other costs for the promoter of the private bill

84. Research showed that all other legislatures charge a fee payable by the promoter for the passage of a private bill and the Committee on Procedures believe that it is reasonable that the promoter of a private bill should meet from their own resources all costs incurred directly by them (e.g. the cost incurred in having a bill drafted by legislative draftspersons).

85. Private bills by their nature deal with private interests affecting a relatively small number of individuals or bodies. The Committee on Procedures do not consider therefore that the administration costs associated with the passage of a private bill through the Assembly should be borne by the Assembly which is funded from the public purse.

86. The Committee on Procedures recommend that it will be appropriate for the Assembly Commission to apply a fee of £5,000.00 to the promoter of a private bill to cover the administration costs that will arise from the Assembly Stages of the bill. The Commission may wish to revisit the fee charged at the beginning of each mandate.

87. The cost of printing documents (including the bill itself, the Explanatory and Financial Memorandum and other documents, such as the Report on the Committee Stage) plus all other associated incidentals such as broadcasting of the private bill meetings and room hire if the private bill committee undertake a site visit will also be charged at cost to the promoter.

88. The Commission is not empowered to levy a fee in respect of the time spent by Assembly members on a private bill.

89. The Committee on Procedures also give consideration to the application of a reduced fee in certain cases, e.g. for bills introduced by organisations whose charitable status has been formally established and recommend that fees for charitable religious and educational organisations and for literary or scientific purposes from which no private profit or advantage is derived be reduced by 75%.

90. Any sums received by the Assembly Commission from the application of fees associated with private bills will be payable to the Consolidated Fund.

Objections to a private bill

91. Based on a review of procedure in other legislatures the Committee on Procedures proposed that individuals or organisations should be able to register objections with the Assembly as soon as a private bill has been introduced and that the cut off date for receipt of applications will be 5.00pm on the 42nd working day after the date of introduction of the private bill.

92. In coming to this decision the Committee considered the period of time in Westminster (64 to 71 days) and in Scotland (60 days). While the period of time recommended is shorter in Northern Ireland, the Committee believe it is adequate especially as the private bill committee will have the discretion to allow a late objection in certain circumstances i.e. from an individual who missed the closing day because they were not aware of the private bill due to circumstances such as an extended hospital stay or period abroad.

93. The Committee recommend that late objections will be allowed in special circumstances. A late objection will only be admitted at the discretion of the private bill committee and should be accompanied by an explanation for the late submission and should show that the objection was lodged as soon as reasonably practicable. Late objections must meet the criteria set out for objections set out below and be lodged before the first meeting of the private bill committee at Committee Stage.

94. The Committee also considered and agreed that a lodged objection may be withdrawn at any time. A lodged objection may be altered within the 42 working day period.

95. All objections should be addressed to the clerk of the private bill committee, Parliament Buildings, Stormont Estate, Belfast BT4 3XX. Objections may be posted (recorded or registered post is recommended) or hand delivered. Non-written objections will only be accepted in exceptional circumstances. An acknowledgement of receipt of objection will be posted to the objector. Email versions of the objections are acceptable and encouraged so long as a signed hard copy of the email version is received within the 42 working days along with the fee.

96. The private bill committee will assess and allow or disallow all objections. In coming to a decision, the private bill committee may ask for additional information from the objector and this should be provided within the timescale requested by the committee. The private bill committee may delegate the administration of this task to the Examiner of Private Bills or to a specialist advisor but the final decision on admission will rest with the private bill committee.

97. The clerk to the private bill committee will inform the objector in writing of whether the objection has been deemed admissible or not.

98. After the period for objections has expired, the private bill committee will publish in the Weekly Information Bulletin, a list of the names of all objections lodged and whether they have been deemed admissible or otherwise.

Criteria for objections

99. In examining and making recommendations for the criteria for objections to private bills the Committee observed that the primary criteria should be that objectors be able to demonstrate a legitimate interest in the bill and would be directly affected by its provisions. As noted in evidence to the Committee by the Society of Parliamentary Agents, this is “...consistent with the nature of a private bill, which affects particular persons and areas and not the public at large.” The Committee did not agree to the standing of an objector being challenged by the promoter – it believes that the task of assessing whether an objection should be allowed or not should remain entirely in the hands of the private bill committee.

100. The Committee on Procedures therefore recommend a list of criteria for an objection to a private bill as detailed below:

Fees for Objections

101. The Committee spent considerable time debating the fees which it will recommend the Commission should set for the lodging of objections. While some members stated that they did not wish to set fees, other members did believe that the Assembly should recoup some of the costs associated with the administration and assessment of objections and deter frivolous objections. The Committee concluded that a fee of £20.00 would be sufficient to obtain these aims.

102. In line with procedures in other legislatures, the Committee agreed that groups of individuals and bodies, with similar objections would be encouraged to come together and lodge one objection covering all the grounds of their objections and be charged only one fee.

103. The Committee also agreed that an individual or body could use one objection to cover more than one set of objections.

104. The Committee recommend to the Northern Ireland Assembly Commission that the fee for an objection be set at £20.00 and in the event of a withdrawal of the objection, is non refundable.

Private bill committee

105. The Committee on Procedures examined the structures of private bill committees in other legislatures particularly with regards to membership and procedures. The Committee noted that in Scotland five Members of the Scottish Parlaiment are required to form a private bill committee and that in Westminster four members are required. A Committee of four or five would be smaller than most Assembly committees; nevertheless the Committee on Procedures recommend that a private bill committee in the Assembly has a membership of five appointed by motion from the Business Committee. This number is based on the rationale of the different role of a private bill committee compared to an Assembly statutory committee. The role of the members in a private bill committee is to be neutral and to adjudicate between conflicting private interests – the political considerations and information which members bring to a statutory committee are of lesser importance. Five members are, in the opinion of the Committee on Procedures, adequate to carry out this role.

106. The Committee on Procedures noted that there is a detailed set of rules set out in the Scottish Standing Orders detailing which Members of the Scottish Parliament can and can not sit on a private bill committee. Oral evidence from Mr David Cullum of the Scottish Parliament notes –

“The Committees established early on that they were arbiters in the process and did not act as advocates for the promoter or for the objector.”

And later

“Our Committees act quasi-judicially and must therefore suspend political considerations when considering a Bill and the objections to provisions in it. We had some interesting discussions at the outset with Committees explaining that process. That neutral role was especially important when it came to amending a Bill, whether in Committee or in the Chamber ...”

107. In line with the quasi-judicial and neutral role of members on a private bill committee, the Standing Orders for the Scottish Parliament have detailed rules on eligibility of a member to serve on a private bill committee. For example, a member is not eligible if he or she resides in or represents the area affected by the bill.

108. Westminster has similar provision with MPs with a constituency interest in a private bill debarred from serving on the committee scrutinising it. Erskine May states:

“Each Member of a committee on an opposed private bill, before he is entitled to attend and vote, is required to sign a declaration that his constituents have no local interest, and that he has no personal interest, in the bill...” Erskine May Parliamentary Practice, 23rd Edition

109. The Committee on Procedures noted that the quasi judicial nature of a private bill committee makes it important that the members recommended for appointment by the Business Committee are neutral and impartial. Therefore, prior to appointment to a private bill committee, prospective appointees will be asked to submit an up-to-date record of their interests. Specifically, they will be asked to consider the proposed bill and to declare:

110. The Business Committee should not recommend an appointment if based on the declaration of the Member:

111. As well as the above interests members may have other interests which may prevent them from being appointed to a private bill committee. It will therefore be the sole responsibility of the member to declare any relevant interest related to the work of a private bill committee to the Business Committee. On consideration of this information the Business Committee will recommend that the member be appointed or not.

112. If a member accepts the invitation to sit on a private bill committee they will be asked to declare, at the first meeting, that they will act impartially and base decisions solely on the evidence and information provided to the Committee.

113. As with any proceedings of the Assembly failure to declare an interest relating to the work of the private bill committee and to continue to participate in the committee may be subject to complaint and subsequent investigation by the Interim Assembly Commissioner for Standards. Members who accept appointment to such a committee should at all times be open with the Business Committee and the other members of the committee with respect to their interests.

Procedures for the private bill committee

114. The Committee on Procedures recommend that the quorum of the private bill committee will be three and full attendance of the membership will be required unless special circumstance prevents a Member from attending. A Member can not be deemed present if linked by video conferencing facility.
115. The Committee on Procedures recommend that a private bill committee will elect its chairperson and deputy chairperson at its first meeting and that voting will be by simple majority. Given the small number of members, the Committee on Procedures further recommend that in the event of a tied vote, the chairperson should have a casting vote.
116. The Committee on Procedures recommend that private bill committees may exercise the powers in section 44(1) of the Northern Ireland Act.

117. A private bill committee may appoint specialist or technical advisors.

Guidance notes to assist promoters and objectors

118. The Committee on Procedures recommend that, prior to the introduction of the Assembly’s first private bill, detailed guidance for promoters and objectors be published by the Bill Office. As such, legislation will be generated outside the Executive and the Assembly, the guidance will need to be comprehensive in order to ensure that the promoters have sufficient information to anticipate problems and prepare a bill competently. Guidance will also be required to ensure that objectors also have sufficient information to enable them to provide a written submission in the correct format.

Hybrid Bills

119. Erskine May defines Hybrid bills as “a public bill which affects a particular private interest in a manner different from the private interest of other persons or bodies of the same category or class.”

120. The Scottish and Irish Parliaments have never received a hybrid bill although they are not uncommon in Westminster. The anticipation is therefore hybrid bills will be a rare occurrence in the Northern Ireland Assembly and that the principles of scrutiny of such bill as per Westminster will be followed i.e. it will be referred to the appropriate statutory committee. For those provisions of the bill which are private in nature, the committee will follow the Standing Orders for private bills.

121. It is anticipated that a private bill will be identified as hybrid during preliminary scrutiny stage and as such the Speaker will be provided with the appropriate procedural advice at that step.

Diagram One - Stages for a private bill

Preliminary Scrutiny

Introduction (First) Stage

ARROW

Second Stage

arrow

Committee Stage

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Consideration Stage

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Further Consideration Stage

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Final Stage

Appendix 1

Minutes of Proceedings

Wednesday 14 November 2007
Room 152, Parliament Buildings

Present:
Lord Morrow (Chairperson)
Mr Francie Brolly
Lord Browne
Mr Willie Clarke
Mr Raymond McCartney
Mr David McClarty
Mr Sean Neeson
Mr Ken Robinson

In attendance:
Ms Stella McArdle (Clerk)
Mrs Elaine Farrell (Assistant Clerk)
Ms Linda Hare (Clerical Supervisor)

Apologies: Mr Adrian McQuillan
Mr Declan O’Loan

The meeting opened in public session at 2.05 p.m.

6. Private Legislation – Terms of Reference

The Committee discussed the detail surrounding the inquiry into Private Legislation which is scheduled to commence in January 2008.

Agreed: The Committee agreed the terms of reference, the list of potential witnesses and advisors, commissioned research, a best practice visit to Dublin, a press notice and a full day of evidence taking on 20 February 2008.

Lord Morrow

Chairperson, Committee on Procedures

[EXTRACT]

Wednesday 28 November 2007
Room 152, Parliament Buildings

Present:
Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Lord Browne
Mr Willie Clarke
Mr Adrian McQuillan
Mr Sean Neeson
Mr Declan O’Loan

In attendance:
Ms Stella McArdle (Clerk)
Mrs Elaine Farrell (Assistant Clerk)
Ms Linda Hare (Clerical Supervisor)

The meeting opened in closed session at 2.02 p.m.

7. Private Legislation

The Committee noted the public notice and the press release inviting written submissions to the Inquiry into Private Legislation.

Agreed: The Committee agreed the public notice and press release in relation to the Inquiry into Private Legislation

Lord Morrow

Chairperson, Committee on Procedures

[EXTRACT]

Wednesday 20 February 2008
Room 21, Parliament Buildings

Present:
Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Francie Brolly
Mr Willie Clarke
Mr David McClarty
Mr Adrian McQuillan
Mr Declan O’Loan

In attendance:
Mr Martin Wilson (Principal Clerk)
Ms Stella McArdle (Clerk)
Ms Eleanor Murphy (Assistant Clerk)
Ms Eithne Knappitsch (Assistant Clerk)
Ms Linda Hare (Clerical Supervisor)
Ms Gwyneth Deconink (Clerical Officer)

The meeting opened in public session at 10.35 am.

Private Legislation Inquiry – Oral Evidence Session
7. Briefing from the Scottish Parliament.

The Committee took oral evidence from David Cullum and Jane Sutherland from the Non-Executive Bills Unit of the Scottish Parliament. A question and answer session followed.

8. Briefing from the Assembly Research Services.

Ms Claire Cassidy of the Assembly Research Services briefed the Committee on the procedures governing private legislation in other legislatures.

9. Briefing from the House of Commons.

The Committee took oral evidence from Mr Alan Sandall, Acting Clerk of Bills at the House of Commons. A question and answer session followed.

The Chairperson suspended the meeting at 12.14pm
The Chairperson reconvened the meeting at 12.23pm

10. Briefing from the Society of Parliamentary Agents.

The Committee took oral evidence from Mr Alastair Lewis, Mr Robert Owen and Mrs Alison Gorlov from the Society of Parliamentary Agents. A question and answer session followed.

The Chairperson suspended the meeting at 1.13pm
Mr Clarke left the meeting at 1.13pm
The Chairperson reconvened the meeting at 2.01pm.
Mr O’Loan and Mr McClarty joined the meeting at 2.01pm

11. Briefing from the National Trust.

The Committee took oral evidence from Mr Diane Ruddock and Mr Graham Thompson of the National Trust. A question and answer session followed.

12. Briefing from Derry City Council.

The Committee took oral evidence from Mr Damien McMahon, City Secretary and Solicitor to Derry City Council. A question and answer session followed.

The Chairperson suspended the meeting at 2.58pm.
The Chairperson reconvened the meeting at 3.16pm.

13. Briefing from the Law Society.

The Committee took oral evidence from Mr Alan Hunter, Law Society President and Mr Donald Eakin, Law Society Chief Executive. A question and answer session followed.

14. Written Submissions.

The Chairperson informed Members that a number of organisations provided written submissions but did not wish to give oral evidence. Members noted these written submissions.

The Committee considered the written submission from the Department for Regional Development. The Clerk informed Members that the Department did not envisage using the private legislation process for transport projects and asked Members to consider whether oral evidence from the Department would be required.

Agreed: Members agreed that it was not necessary to request oral evidence from the Department.

Lord Morrow

Chairperson, Committee on Procedures

[EXTRACT]

Wednesday, 5 March 2008
Room 152, Parliament Buildings

Present: Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Willie Clarke
Mr Raymond McCartney
Mr David McClarty
Mr Sean Neeson
Mr Declan O’Loan
Mr Ken Robinson

In Attendance: Mr Martin Wilson (Principal Clerk)
Ms Stella McArdle (Assembly Clerk)
Ms Eithne Knappitsch (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Ms Gwyneth Deconink (Clerical Officer)

Apologies: Lord Browne

The meeting opened at 2.03pm in public session.

The meeting moved at 2.07pm into closed session.

4. Private Bills (Private Session).

The Committee discussed the key issues for consideration as regards the pre introduction requirements for private bills in the Northern Ireland Assembly.

Agreed: The Committee agreed a position on pre introductory consultation.

2.11pm Mr Robinson joined the meeting.

Agreed: The Committee agreed on what the promoter is required to submit when introducing a private bill.

Agreed: An Assembly official shall assess that all private bills meet the procedural requirements of the Assembly.

Agreed: Members agreed that if a dispute arises following rejection of a private bill, the issue should go to the Speaker for adjudication.

Members discussed the advantages and disadvantages of insisting on the use of Parliamentary Agents.

Agreed: It was agreed that the Standing Orders shall not specify who drafts a private bill and that guidance notes would contain further information on drafting requirements.

2.49 p.m. Mr Storey left the meeting.

Agreed: The Committee agreed that a private bill should be introduced by means of a simple announcement in Plenary along with an announcement that a private bill committee will be established.

Agreed: The Committee agreed that the period between the introduction and second stage of the private bill should be 60 days, to allow for a private bill committee to undertake preliminary examinations and for objections to be received.

Agreed: It was agreed that in this First Stage the private bill committee should compile a report for the Assembly summarising the bill including the general objectives of a private bill and should contain a copy of all the objections.

Agreed: If necessary, the private bill committee shall have the powers to appoint specialist advisors (legal/technical).

Members moved on to discuss the Second Stage of the private bill process.

Agreed: The procedures involved in the second stage of the private bill were agreed.

2.55pm Mr McClarty left the meeting.

Agreed: The period between the Second Stage and the Committee Stage shall be 30 days with the possibility of having one period of extension if necessary.

Members moved on to discuss the various aspects of the Committee Stage of private bill legislation.

Agreed: The Committee agreed a procedure for an unopposed private bill.

Agreed: The Committee agreed to the procedure for opposed bills. It was agreed that the private bill committee will at this stage receive objections, invite written evidence and hear oral evidence from the side of promoter and objector(s).

Agreed: Cross examination by promoters and objectors was agreed to.

Agreed: It was agreed that a clause by clause scrutiny of the private bill shall be undertaken by the committee on private bills at this stage.

Agreed: The private bill committee will be able to amend the bill in committee.

Agreed: The Committee agreed that a report would be produced at this stage to go to Plenary for the Consideration Stage.

3.09pm Mr Storey rejoined the meeting.

The Committee discussed the procedures for the Consideration and Further Consideration Stage.

Agreed: The Committee agreed a procedure for Consideration Stage of a private bill.

Agreed: It was agreed that the Further Consideration Stage shall only allow for corrective amendments to be made.

Agreed: It was agreed that Final Stage, Reconsideration Stage and Royal Assent shall follow Further Consideration Stage.

Agreed: The Committee agreed that there should be no accelerated passage for a private bill. If the Assembly dissolves for election, it was agreed that private bills will have to be reintroduced.

The issue of objections to a Private bill was discussed.

Agreed: It was agreed that individuals, corporate bodies and unincorporated groups can object to private bills.

Agreed: The Committee agreed that objectors with similar objections can be grouped together.

Agreed: Members agreed on the criteria for objections.

3.20pm Mr McCartney left the meeting.

Agreed: It was agreed the period for receipt of objections shall be 42 days from the date of the introduction of the bill.

3.24pm Mr McCartney rejoined the meeting.

Agreed: The Committee agreed to accept late objections in special circumstances and agreed on these circumstances.

Agreed: The Committee agreed that the private bill committee shall decide whether or not to accept a late objection.

Agreed: Objections can be altered within the 42 day period or withdrawn at any stage.

3.28pm Mr Neeson left the meeting.

Agreed: The Committee discussed whether there should be a cost attached to submitting an objection and considered a number of proposals including a fee of £20 or £10, or charging no fee. A majority of the Committee agreed that a fee of £20 should be charged for objections.

The Committee discussed the form the private bill committee should take.

Agreed: Members agreed that the private bill committee should be a specially designated committee and established by the Assembly on receipt of a private bill. The Committee agreed to the membership and procedures for the private bill committee.

3.43pm Mr McCartney left the meeting.

Not agreed: Members rejected the suggestion that the costs for all legal representations shall be passed on to the promoter.

Mr Robinson requested further information from the Clerk on the legal protection of members of the committee on private bills against negligence.

Agreed: It was agreed that the private bill committee can reconvene at consideration stage to make recommendations if they are substantial in number or technical in nature.

Members discussed whether there should be a tiered cost system for unopposed and opposed bills.

Agreed: The committee agreed that there shall be fixed costs of £5000 plus incidentals for all promoters introducing a private bill.

Agreed: The fixed costs for the promoters introducing a private bill shall be reduced by 50% for charities, religious and educational establishments and for literary or scientific purposes from which no private profit or advantage is derived.

Agreed: The Clerk will start work on the policy document for private bills.

Lord Morrow

Chairperson, Committee on Procedures

[EXTRACT]

Wednesday, 02 April 2008
Room 152, Parliament Buildings

Present:
Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Francie Brolly
Lord Wallace Browne
Mr Declan O’Loan
Mr Adrian McQuillan

In Attendance:
Ms Stella McArdle (Assembly Clerk)
Ms Eithne Knappitsch (Assistant Assembly Clerk)
Ms Wendy Young (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Ms Gwyneth Deconink (Clerical Officer)

Apologies:
Mr Ken Robinson
Mr David McClarty
Mr Sean Neeson

The meeting opened at 2.09pm in public session.

4. Matters arising

The Committee noted that correspondence was received from the National Trust outlining that the National Trust Bill was advertised in both the London Gazette and the Belfast Gazette.

The Committee noted correspondence from legal services in response to a query on legal liabilities attached to a Private Bill Committee or its Members in the event of negligence or dispute.

Lord Morrow

Chairperson, Committee on Procedures

[EXTRACT]

Wednesday, 16 April 2008
Room 152, Parliament Buildings

Present:
Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Francie Brolly
Lord Wallace Browne
Mr David McClarty
Mr Adrian McQuillan
Mr Declan O’Loan
Mr Ken Robinson

In Attendance:
Ms Stella McArdle (Assembly Clerk)
Ms Wendy Young (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Ms Gwyneth Deconink (Clerical Officer)

Apologies: Mr Sean Neeson Mr Willie Clarke

The meeting opened at 2.03pm in public session.

10. Private Bills Policy (Private Session)

The Committee considered the policy document on private legislation and asked for clarification on a number of issues.

Agreed: The Clerk would consult the advice of legal services on this policy document and agreed to move to drafting the Standing Orders accordingly.

2.54pm Mr David McClarty left the meeting.

Agreed: It was agreed that the Clerk should write to the Commission on the suggested fees.

Agreed: It was agreed that the Clerk should write to the Director General on the need to appoint an existing official to act as the “Examiner of Private Bills” in the future.

Agreed: It was agreed that the Clerk should write to the Bill Office indicating that they will need to develop guidance for promoters and objectors to a Private Bill.

Lord Morrow

Chairperson, Committee on Procedures

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Wednesday, 28th May 2008
Room 152, Parliament Buildings

Present: Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Mickey Brady
Lord Wallace Browne
Mr Raymond McCartney
Mr Adrian McQuillan
Mr Declan O’Loan

In Attendance: Ms Stella McArdle (Assembly Clerk)
Ms Wendy Young (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)

Apologies: Mr Francie Brolly
Mr David McClarty
Mr Ken Robinson

The meeting opened at 2.04pm in public session.

5. Private Bills

2.13pm Mr A. McQuillan joined the meeting.

Agreed: The Committee noted the advice from legal services and the agreed the draft policy as amended.

Agreed: The Committee noted and agreed the document tabled at the meeting detailing the proposed amendments to the Section on Members Interests.

The Committee discussed the cost and timescale for drafting Standing Orders and noted that further advice would be provided.

The Committee noted the Interim Director General’s nomination of the Director of Clerking and Reporting to undertake the role of “Examiner of Private Bills.”

Lord Morrow

Chairperson, Committee on Procedures

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Wednesday, 24th September 2008
Room 152, Parliament Buildings

Present:
Lord Morrow (Chairperson)
Mr Mickey Brady
Lord Wallace Browne
Mr Raymond McCartney
Mr David McClarty
Mr Sean Neeson
Mr Declan O’Loan

In Attendance:
Ms Stella McArdle (Assembly Clerk)
Ms Vivien Ireland (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Ms Mary Carroll (Clerical Officer)

Apologies:
Mr Mervyn Storey (Deputy Chairperson)
Mr Francis Brolly
Mr Ken Robinson

The meeting opened at 2.01 pm in public session.

1. Private Legislation

Members considered the Committee’s draft report on a paragraph-by-paragraph basis, as follows:

Paragraphs 1 – 30 were agreed.

Members deliberated on Paragraph 31.

Agreed: The Committee agreed that paragraph 31 will be amended to allow the Committee to seek oral evidence when required. Members will reconsider this paragraph at its next meeting.

Paragraphs 32 – 57 were agreed.

Members deliberated on paragraph 58.

Agreed: The Committee agreed that paragraph 58 will be amended to include the sequence of events when any MLA proposes an amendment at Committee Stage. Members will reconsider this paragraph at its next meeting.

Paragraphs 59 – 67 were agreed.

Paragraph 68 was agreed as a Committee recommendation.

3.00 pm Mr David McClarty left the meeting.

Paragraphs 69 – 99 were agreed.

Paragraphs 100 – 101 were agreed subject to obtaining the opinion and views of the Committee on Standards and Privileges.

Paragraphs 102 – 105 were agreed.

Members deliberated on paragraph 106.

Agreed: The Committee agreed that paragraph 106 will be amended to show that in the event of a tied vote, the chairperson will have the casting vote.

Paragraphs 107 – 112 were agreed.

The Committee was advised that a final version of the report will be brought back to the Committee for agreement and order to print. Members were advised that the report will be followed by a debate in Plenary.

Members were advised by the chairperson that the following papers will be considered at the Committee’s next meeting: cover page; membership and powers; table of contents; introduction; summary of recommendations; executive summary and appendices.

Lord Morrow

Chairperson, Committee on Procedures

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Wednesday, 8th October 2008
Room 152, Parliament Buildings

Unapproved Minutes of Proceedings

Present:
Mr Mervyn Storey (Deputy Chairperson)
Lord Wallace Browne
Mr David McClarty
Mr Adrian McQuillan
Mr Sean Neeson
Mr Declan O’Loan
Mr Ken Robinson

In Attendance:
Ms Stella McArdle (Assembly Clerk)
Ms Vivien Ireland (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Ms Mary Carroll (Clerical Officer)

Apologies:
Lord Morrow (Chairperson)
Mr Mickey Brady
Mr Francie Brolly
Mr Raymond McCartney

Meeting continued in closed session at 2.05 pm.

1. Private Legislation

Members considered the Committee’s second draft report on the inquiry into private legislation.

Agreed: the Committee agreed to consider amendments made to specific paragraphs as the main body of the report was agreed at the previous meeting.

Paragraph 41 was agreed as amended.

Paragraph 68 was agreed subject to minor amendment.

Members considered the amendments provided by the Committee on Standards and Privileges relating to members’ interests and deliberated on paragraphs 110 – 111.

Paragraph 110 was agreed.

Paragraph 111 was agreed subject to the second sentence being amended to read as follows: ‘The Business Committee should not recommend an appointment if based on the declarations of the member:’. In addition, the last bullet point of paragraph 111 was agreed subject to being amended by removing the word ‘other’.

2.12 pm Mr David McClarty joined the meeting.

Paragraph 116 was agreed as amended.

The Committee deliberated on the fees for the promoter and objector to private bills. Mr Sean Neeson provided feedback from the Assembly Commission suggesting that the fees should be reduced to 75% for charitable bodies.

Agreed: The Committee agreed that the fees for charitable bodies should be reduced to 75%.

Members considered a diagram on page 12 which illustrated the recommended stages of a private bill by the Committee.

Agreed: The Committee agreed that the diagram will be moved to page 23 and be referred to in the main body of the text.

Agreed: The Committee agreed the cover page of the report as amended.

Agreed: The Committee agreed the membership and powers page of the report as amended.

Agreed: The Committee agreed the table of contents page of the report.

Members considered the introduction pages of the report on a paragraph by paragraph basis.

Agreed: The Committee agreed that the introduction paragraphs 1 – 10 stand part of the report.

Agreed: The Committee agreed that recommendations 22 and 23 will be amalgamated.

Agreed: The Committee agreed that the summary of recommendations stand as part of the report subject to the amalgamation of recommendations 22 and 23.

Agreed: The Committee agreed that the executive summary stands as part of the report subject to minor amendment.

Agreed: The Committee agreed that the appendices stand part of the report.

Agreed: The Committee agreed that the report (as amended) be the First Report of the Committee on Procedures to the Assembly for 2008/09 session.

Agreed: The Committee agreed to seek a motion to debate its Report on the Inquiry into Private Legislation on 3rd November 2008, subject to the approval of the Business Committee.

Members considered an embargoed draft press release on the Committee’s Report on the Inquiry into Private Legislation.

Agreed: The Committee agreed that the embargoed press release will be issued four days before the start of the plenary debate on 3rd November 2008, subject to the approval of the Business Committee.

Agreed: The Committee agreed that the extract of the unapproved minutes of proceedings of today’s meeting will be checked by the Chairperson and included in Appendix 1.

Lord Morrow, Chairperson

Committee on Procedures

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Appendix 2

Minutes of Evidence

20 February 2008

Members present for all or part of the proceedings:
Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Francie Brolly
Mr Willie Clarke
Mr David McClarty
Mr Declan O’Loan
Mr Adrian McQuillan

Witnesses:

Mr David Cullum
Ms Jane Sutherland

Scottish Parliament

Mr Alan Sandall

House of Commons

Mrs Alison Gorlov
Mr Alastair Lewis
Mr Robert Owen

Society of Parliamentary Agents

Mr Graham Thompson
Ms Diane Ruddock

National Trust

Mr Damien McMahon

Derry City Council

Mr Donald Eakin
Mr Alan Hunter

The Law Society

1. The Chairperson (Lord Morrow): I welcome Jane Sutherland and David Cullum. The Committee appreciates your taking time to be here today. Our visit to Scotland was very useful, and we are delighted that you made it despite the fog. We look forward to hearing your evidence on private legislation. You have been down the road that is now ahead of this Committee, and we are happy to draw on your considerable experience. Who will give the presentation?

2. Mr David Cullum (Scottish Parliament): I will say a few words to start.

3. Thank you for inviting Jane and me to give evidence this morning. I am head of the Private Bills unit at the Scottish Parliament, and my colleague Jane was clerk to two Private Bill Committees during the last parliamentary session: the Edinburgh Tram (Line One) Bill Committee; and the Edinburgh Airport Rail Link Bill Committee. As it turned out — and Jane will not thank me for saying so — those were the biggest, longest-running and most difficult Committees and Bills that the Parliament handled in its last session.

4. I have been involved with every Private Bill that has gone through Parliament; I was heavily involved at the outset in drafting the guidance and implementing the procedures.

5. Over the years, the guidance and procedures have been developed to take account of experience. We have tried to be flexible, particularly when selecting the evidence-taking procedure to be used in meeting the demands of a Bill. Our Standing Orders are helpfully vague in that area.

6. I will briefly outline the key points of the procedures that govern private Bills, and I will comment on the lessons that have been learned from our experience of them in the Scottish Parliament. We are aware of the areas that the Committee wishes to explore. I hope that my comments on the procedures in the Scottish Parliament will help the Committee members in their deliberations.

7. We have provided a lengthy written submission outlining our thoughts, from which I will extract some key points. Pre-introduction discussions are vital to ensure that the promoters of Bills understand the process. More important, those discussions enable us to ensure that full details and justification of all aspects of a Bill are provided in the lodged documents. Our written submission includes the example of a promoter’s statement starting off at about seven pages and being nearly 70 pages by the time it was lodged.

8. Those discussions also enable us to ensure that promoters understand the requirement for meaningful consultation with people who will be affected by the Bill and the impact that that has on the private Bill process. If anyone wants me to, I can talk at length about consultation later.

9. Time is important in the drafting of a Bill, as enough time has to be set aside at the pre-introduction stage in order to get it right. We requested that promoters include as standard any amendments that had been agreed to previous Bills. We took an incremental approach, as we had discovered deficiencies in earlier Bills and other protections that would assist objectors. We started to include those protections as standard in subsequent Bills.

10. It was also useful for us to establish an early relationship with the promoters’ agents to ensure that Parliament’s requirements were understood. That was particularly important as the House styles in Scotland for drafting are vastly different from those of Westminster that parliamentary agents were used to.

11. Our procedures have been considerably enhanced as a result of our experiences and feedback from objectors. We held a focus group with objectors who had been through the process, from which we learned a great deal.

12. It is important early on, even before a Bill is introduced, to ensure that possible objectors understand what the Bill is about, what is required of them and how to submit an objection. That includes providing information on how the Bill’s provisions would affect objectors.

13. We learned that it is important that objectors get the right information at the right times. That resulted in us meeting all objectors perhaps four or five times throughout the process, including evening meetings to brief objectors and going to their localities. We told them what would happen next, we provided role playing of how evidence is taken, and Jane Sutherland and her staff answered many questions by phone and e-mail.

14. If necessary, the Committee or the assessor could suspend an evidence session to enable clerks to explain procedures to objectors. In some ways, that showed a failure on our part because it meant that we had not conveyed our message successfully at earlier meetings and that there were issues that we had to explain further. Nevertheless, we generally encouraged people to get a move on and not procrastinate.

15. Oral evidence on objections must be based on full written disclosure of the issues in dispute. That full written evidence is made available to all relevant parties before the oral evidence sessions. Matters not covered in the written disclosures cannot be introduced into evidence. In particular, the sandbagging of witnesses by introducing new topics of evidence is not permitted.

16. We also grouped objectors who had similar interests. That enabled them to support one another, it reduced their individual workload, and it also avoided the duplication of evidence.

17. Finally, we introduced mediation meetings chaired by the clerks before evidence taking, where the objector and promoter could discuss the disputed issues; such meetings assisted greatly in focusing outstanding issues. They also promoted many settlements with objectors.

18. The Committees established early on that they were arbiters in the process and did not act as advocates for the promoter or for the objector. That said, the Committees were mindful of the difference in expertise between the promoter and some objectors, and they sought to balance that by ensuring that both sides understood the procedures and by asking questions of witnesses whenever a Committee believed that further clarification was helpful. The assessor adopted a similar approach.

19. Our Committees act quasi-judicially and must therefore suspend political considerations when considering a Bill and the objections to provisions in it. We had some interesting discussions at the outset with Committees explaining that process. That neutral role was especially important when it came to amending a Bill, whether in Committee or in the Chamber, as it was Committee members who lodged and spoke to amendments on behalf of the promoter. That was entirely for procedural reasons and did not indicate whether the Committee member concerned agreed or disagreed with the amendment being sought. Members could move an amendment and vote against it. I do not think that ever happened, but theoretically it was possible.

20. Parliament had two opportunities for full debate: the first was at the end of the preliminary stage when Parliament was informed by the Committee’s report; the second was the final stage, when Parliament can amend a Bill and debate its passing. That was largely informed by a Committee report.

21. Since the passing of the Transport and Works (Scotland) Act 2007 most large transport projects are not likely to be considered in depth by Parliament; they will probably be considered by the Scottish Government. That said, I am told that one large Bill could come our way, but that has not yet been decided.

22. We are happy to answer questions.

23. The Chairperson: Thank you for your presentation; it has been very useful. Do you have any idea of the cost of taking a private Bill from first stage to final stage?

24. Mr Cullum: Is that the cost to the Parliament or to the promoter?

25. The Chairperson: I am referring to the total cost. Is it possible to estimate that cost?

26. Mr Cullum: The parliamentary agents — if their plane arrives — will be able to give you those figures. Recently, I saw figures in the press for the cost of some of the transport projects, but I do not have that to hand, so I would be guessing. However, some of the big Bills would probably run into seven figures.

27. The Chairperson: That is big money.

28. Mr Storey: I welcome Jane and David to the Committee and to Northern Ireland. I appreciated your hospitality and kindness when the Committee visited the Scottish Parliament.

29. Are the evidence sessions the only opportunity to ensure that objectors cover every concern? How would new evidence or information be dealt with? Can objectors’ concerns be dealt with when a Bill is going through its parliamentary stages, along with amendments and such like? What is the relationship between those two elements of the process?

30. There is a concern that, as often happens, all eventualities will not be covered and that there could be pitfalls or difficulties. For instance, an objector might lodge a late objection and say that he or she was not able to access the process adequately.

31. Ms Jane Sutherland (Scottish Parliament): Before a Bill is introduced, potential objector meetings are called at which objectors are informed that their objections and the grounds for them — noise, vibration or loss of land — will set the boundaries for their objections. However, many objectors choose to use broad language, and they may cite “disturbance”, for instance, as grounds for an objection. If a group of objectors live next door to one another, when their objections get to Consideration Stage — when the Committee or the assessor starts to take evidence — they can be grouped then all the issues in their objections can be legitimately raised.

32. Some objectors use “disturbance” as the ground for their objections, and that gives them reasonable latitude. At Consideration Stage — which is when the written evidence comes into play — the objector and the promoter can discuss the issue at greater length. Therefore where an objector cites disturbance or noise as their grounds for objecting, they will have an opportunity to expand on that and describe how the Bill will affect their house, property or enjoyment of life and those of the other people in the group. The promoter must respond.

33. Mr Cullum: When objectors come before the Committee to present their written evidence, it is important that there is some connection — however tenuous — to their original objection. We were reasonably happy with fairly tenuous connections. For the sake of fairness, the promoter deserves to have some understanding of what it is coming. Occasionally, promoters suggested that there was no connection between the written evidence and an objector’s original objection. However, we rejected everything that the promoters said in relation to that because by that stage we had the full details from the objector, and it was the full detail that ring-fenced what was said in oral evidence.

34. Mr W Clarke: Objectors are usually less well resourced than promoters, who may have vast resources. How does the Scottish Parliament balance that in the interests of equality?

35. Mr Cullum: We approached that in several ways. Free legal aid is not available in Scotland, and we did not make legal resources available to objectors; however, my staff — Jane, in particular — and I assisted them by meeting them before they objected and at each stage of the process. Furthermore, they were free to phone and contact us when they were developing their objections and their written submissions. They took advantage of that offer; in fact, Jane spent many happy hours on the phone and e-mail with objectors.

36. Ultimately, the objective is to make objectors go away and to settle the differences. In Scotland, an entire Bill cannot be objected to, and such objections were rejected. We told objectors at the outset that an objection to the whole Bill was unlikely to succeed; we also told them that they would not stop a Bill because the then Government, which had a majority at the time, backed and funded it. Things are different, so it would be much more interesting if Bills were going through the process now.

37. We were dealing in the main with local issues such as noise, vibration and compulsory purchase, which had to be resolved as part of the Bill process; a solution had to be found.

38. We took great pains to encourage objectors and promoters to speak to one another. In some cases, we insisted on weekly updates on meetings and discussions, and in all cases we got at least monthly updates on every objection and on how discussions were going. If the objectors felt that the discussions were not going satisfactorily, they were invited to contact us and we investigated the matter with the promoter.

39. When things went badly, as they did with one Bill, the Committee got involved and there were side meetings with the promoter to ascertain the outstanding issues and to find out why the lines of communication had broken down. We investigated the matter further and assisted them in developing their objection. We also assisted them in developing their objection in their written submissions — although we stopped short of writing their submissions for them. Everything was publicly available so that later Bills could draw on examples from earlier Bills.

40. We invited the objectors and the promoters to mediation meetings before the evidence sessions; we asked the objectors why they had not reached agreement on an outstanding objection; then we asked the promoters what they were doing about the objection. In some cases, they told us that there was nothing they could do; in others, they told us that they had offered to take certain action but that the objectors had not taken them up on it. That proved successful in reducing the number of cases that went to hearing.

41. In cases that were brought to hearing, the objectors met the QC acting on behalf of the promoter at the mediation meeting and there was no examination in chief — if I can use the legal term — because we had written pleadings. There was merely cross-examination, and that was restricted to matters in dispute, which were clear from the written pleadings. Therefore they did not require legal representation.

42. We do not think that anyone was prejudiced during the Bill process by not having legal representation. In the absence of the parliamentary agents, might I venture to say that some were better off without legal representation? Legal people tend to focus on legal issues, but we were not interested in legal issues; we wanted to resolve practical difficulties, such as how to reduce noise, deal with disturbance and the loss of view and amenity. Such issues do not lend themselves easily to legal fights and exchanges of legal documents; they require practical solutions.

43. We did not give objectors legal resources, but we gave them as much help as possible, and we got positive feedback on that. They felt that we could not have given them much more help, and those who had legal representation got no more out of the process than those who did not. In fact, if someone appears before a Committee as the little person, it may put them in a good position because the Committee is not a court of law and it tends to side slightly with the little person and put pressure on the promoter. We often ask the promoter how that will look. Remember that a judicial decision is not being made — even though there is a quasi-judicial aspect to it. It was not a major issue for us, but it was for a few objectors. We offered them plenty of advice in that case as well.

44. Mr W Clarke: What type of private Bills are being introduced?

45. Mr Cullum: There are no private Bills before Parliament at the moment.

46. Mr W Clarke: You are getting a rest from them.

47. The Chairperson: How many Bills have come before the Parliament apart from the one big Bill?

48. Mr Cullum: Ten.

49. Mr Brolly: There seems to be a presumption in favour of the promoter. You say that the ultimate objective is to make objectors go away and to settle the differences. Would it not be more honest for the promoter to say that they have worked everything out and intend to have the Bill passed; that they understand that there are problems with noise and the acquisition of land; but that the greater good must be honoured?

50. Rather than waste what would, obviously, have been considerable time to deal with objecting individuals and bodies, would it not be more honest and economical to say to those objectors that although it is appreciated that it will not be nice for them to have the development beside their house, spoiling their view and creating noise pollution, unfortunately, time moves on and we must move on with it?

51. Mr Cullum: I do not agree with that at all. Even if I did, I would be totally constrained by the Human Rights Act. We are dealing with people’s rights and property. People have many rights, one of which is the right to a fair and full hearing. That is what was available to the people concerned. They were given blunt and practical advice. Although the resolution of many problems was on a monetary basis, we did not fix the compensation level. That was dealt with by the Scottish Land Court, which was of great advantage to us because we were able to say that we did not care about monetary value because it was dealt with elsewhere.

52. If the member’s argument was developed further then it would mean that a railway or tramway could not be built if anybody were affected. Such a decision would run contrary to the general principles of the Bill — in other words — that it is for the general public good, with acceptance that one, two, or possibly a few hundred, people will be inconvenienced or prejudiced in some way. That inconvenience or prejudice must be dealt with and those people compensated in one way or another. We tried to short-circuit lots of discussion and get straight to the root of the matter — what will resolve the objection short of making the Bill go away, which is not going to happen?

53. Mr Brolly: I appreciate that. Obviously, human rights are involved. In fact, a Bill’s promoter would be aware that he or she will basically have to trample over human rights in order to develop their scheme. There is no way past that — if you knock someone’s house down, you interfere with their human rights. We have a situation in the North in that 18 or 19 houses will be knocked down to make way for extension of a runway at City of Derry Airport. Whatever way that is dressed up; whatever way the people are spoken to or compensated, it is a human rights issue from beginning to end. Fundamentally, time could be saved if it were acknowledged that, unfortunately, people’s basic human rights would be interfered with and that, cruel as that may seem, it has to be done. There is no point wasting a year, with two sides paying solicitors and barristers heaps of money to bring forward court cases and tribunals. Why can they not just carry on because it will be done anyway? The presumption seems to be in favour of the promoter.

54. Mr Cullum: I agree. However, the presumption is only in favour of the promoter when the general principles of the Bill have been agreed. That would be a parliamentary decision, which would be taken at Stage 1, following a full debate. All we were saying to objectors was that, in our experience, none of the Bills have been defeated at Stage 1 on general principles and that, effectively, they would then have Government backing, and the Government have a majority. In that light, we asked objectors whether they believed that a Bill was likely to be defeated. We left the matter hanging at that point.

55. Ms Sutherland: Although the vast majority of objectors may not like an entire Bill, it may become clear when one talks to them that they have particular concerns with the parts that affect them. Therefore, even if Parliament takes a decision at Stage 1 to approve the general principles of a Bill, there is still an opportunity during Consideration Stage for objectors to seek resolution of specific problems. For example, they may get double glazing should noise levels rise above a certain threshold. Those small victories may be meaningful to objectors, irrespective of their views on the entire Bill.

56. If, for example, we had said to objectors that they would not be given any opportunity to make changes, then none of the many victories they won in respect of private Bills over four years on subjects such as construction practice, noise, vibration policies or double glazing would have been achieved. Throughout the life of the second session of the Scottish Parliament, many enhancements were built into legislation that saw benefits not just for objectors but for people who did not object, but who were affected in other ways.

57. Mr Brolly: Should those enhancements not have been built into the original proposals? Surely, there should have been no need for objectors to make their case.

58. Mr Cullum: To a large extent, enhancements were built in by the end of the process. We had required the introduction of a great deal of additional amendments in order to learn from what had happened at our Committees. That, quite rightly, did not stop people from objecting. We referred to a larger document, which was a code of construction practice. We allowed that document to develop and grow, but its terms would never become more detrimental to objectors.

59. Many objections were resolved by changes to the code of construction practice. Each code of construction practice was different, and within each code there were specific sections dealing with separate issues such as tracks and lines. A lot of flexibility was built into the final process in order to deal with some of those issues. Ultimately, however, some people’s rights are ridden over, but that is a parliamentary decision.

60. The Chairperson: Does an objector have a right of appeal?

61. Mr Cullum: The only right of appeal would be through a judicial review. There is no right of appeal in the general sense.

62. Mr McQuillan: What is the process during Committee hearings? What facility does the Chairperson give to the promoter’s representatives to cross-examine objectors?

63. Ms Sutherland: Are you talking about the cross-examination of witnesses? Cross-examination in the Scottish Parliament process happens during phase one of Consideration Stage. That is the process of detailed oral evidence-taking of objections to a part of the Bill. The procedure is fairly well established in that the promoter will have a representative who can cross-examine witnesses that are nominated by objectors. Obviously, the opposite is also true, in the interests of balancing human rights. Objectors can, in turn, cross-examine the promoter’s witnesses. Effectively, the two sets of witnesses are cross-examined by either party.

64. Mr McQuillan: Does that happen during the Committee process?

65. Mr Cullum: The Committee is effectively a bystander in this process. It all takes place in front of the Committee, although members have an absolute right to ask questions at any time. They use that right considerably on behalf of unrepresented objectors.

66. Ms Sutherland: Some enhancements were made on the back of experience. At the beginning of session two, the whole process was played out in oral evidence, and there were some Bills for which a considerable length of time — 90 hours in one case — was spent on cross-examination in respect of nearly 200 objections. Latterly, however, assessor hearings have been introduced, so that during phase one of Consideration Stage, the Committee can ask that an assessor hear all the evidence. He would report on the cases put forward by the promoter and the objector and make his recommendation. That would go to the Committee, which would examine the report and either make a decision or take more evidence. The cross-examination stages of the last three Bills of session two were heard by an assessor, not by Committee members, although they had the option later to take further evidence if they so wished.

67. The Chairperson: Who controls the whole process? Is it the Chairperson?

68. Mr Cullum: Yes — or the assessor, if he hears the cross-examination stages.

69. The Chairperson: What about the period during which objections may be lodged? Is that determined at the early stages of the Bill? How long is it likely to be?

70. Mr Cullum: Under our Standing Orders, it is 60 days. The period can be shortened, but that happened only in one case, and it was for a very small Bill. We knew that there would be virtually no objections in that case, and we had written confirmation of that from everyone affected.

71. The Chairperson: Is there an average time period for the passage of private Bills? You said that the Scottish Parliament had 10 Bills. From the start of the process until its end, what time does it take on average?

72. Mr Cullum: Any figure I give you will be horribly skewed, so I will give a range of answers. Our last private Bill was the Airdrie-Bathgate Railway and Linked Improvements Bill. That took between eight and nine months from introduction to passage through Parliament. That does not include five or six months pre-introduction discussions that were ongoing, or consideration of draft Bills and draft documents. The Waverley Railway (Scotland) Bill took two and a half years, but that got enmeshed in all sorts of procedural problems and difficulties that the promoter had in serving notices on people. He omitted all sorts of people, and the process kept getting restarted. We would expect to do one of the big railways Bills or any big Bill in a year, from start to finish.

73. The Chairperson: Would that include all stages?

74. Mr Cullum: Yes — all its stages from introduction to passing. We can do that comfortably. We did three in the past year. We had three Committees running simultaneously.

75. The Chairperson: Can the objector change the grounds of the objection at any stage?

76. Ms Sutherland: During the 60-day initial period for the lodging of an objection, the grounds may be changed. Once the 60-days have expired, the objector cannot alter the grounds or add anything. However, since objectors use flexible language, there is usually a degree of scope within their objections to accommodate their concerns.

77. The Chairperson: Is there any scope for late objections?

78. Ms Sutherland: A late-objection period runs from the sixtieth day until the first meeting of the Committee at Consideration Stage. One cannot object after the first meeting has been held.

79. Mr Cullum: A high test has to be met before a late objection may be lodged. One has to demonstrate that one knew nothing about the Bill and therefore could not have objected.

80. May I return to the question about time limits? Our tendency is always to focus on the big, long, hard, difficult Bills, but we have handled some small Bills also. The smallest was a trust Bill, which, from introduction to completion, took only few months.

81. The Chairperson: Three months?

82. Mr Cullum: A few months; I cannot remember whether it was three or four months. In total, only two Committee meetings were held to take it through the whole process.

83. The Chairperson: Are assessors needed for smaller Bills?

84. Mr Cullum: No: assessors are entirely optional. The purpose of involving an assessor is to cut down on Committee involvement and time and speed up the process. The assessor sat for five days a week continuously. We could never get a Committee to do that. It extended the whole period, and we were hearing evidence on a weekly or fortnightly basis, and even then for only a part of the day.

85. The Chairperson: A question was asked earlier, and this point pertains to it. Is there a perception that, once the Bill gets its First Stage, the impression is given that it will become law? Does that have any impact on objectors or potential objectors?

86. Mr Cullum: It is difficult to give a conclusive answer to that question. Everyone is different. I am sure that some people thought that, since the measure had Government backing, it would become law. Everyone we knew to be a potential objector, and who had been in touch with the promoter prior to introduction, received notices. They all got our office and contact details. A lot of negotiating and land referencing went on. They were all invited to meet with us and we made the position clear. At meetings, we also pointed out that a lot of objectors had achieved a lot of things — short of stopping a Bill.

87. I suspect that the answer to your question is yes, in some cases. However, those who wanted to participate could get value out of the process.

88. Mr Sutherland: It may be one of the lessons that we learnt from early Bills, as opposed to later Bills. Early on, we focused heavily on the process and on making sure that objectors understood it.

89. Later, we gave more advice to objectors about what they could realistically achieve, and we asked them to think about what they wanted to get out of the process. We wanted them to think about whether the process could help them resolve an issue, instead of presuming that the result would be awful and that they would not know what to do about it. Later on, many of the objectors had a more realistic expectation of what they wanted and were not as disappointed as previous objectors had been when general principles were agreed and there was nothing that they could do.

90. Mr Storey: It seems that the assessor has added value to the process. Who is the assessor? How is he appointed? Has there been any assessment on whether having an assessor has enhanced the process for promoters and objectors? Have objectors found the involvement of an assessor to be an advantage or disadvantage?

91. If someone promotes a Bill and the Government support it, does the question of who takes forward the Bill come down to cost? In other words, why do the Government not introduce the Bill? I can understand the situation with respect to charities, or where someone has a particular issue —

92. The Chairperson: Mervyn, are you advocating another form of taxation? [Laughter.]

93. Mr Storey: I am curious as to why the Government have allowed larger Bills, such as the one on transport, to take that track, if you excuse the pun.

94. The Chairperson: Mervyn, are you curious or suspicious?

95. Mr Storey: I suppose it is a combination of both.

96. Mr Cullum: In that case, I will dip my toe in the political water first. [Laughter.]

97. We did not set out to treat any Bill differently — they were all subject to the same scrutiny, had to pass the test of being a private Bill, and meet the criteria set out in our standing orders. The source of the funding was not relevant to that consideration. We did our best to talk Committees out of looking at funding matters because they were not relevant — the question of whether schemes are fully funded is not a factor that Committees have to consider. Therefore, we did not try to treat anyone differently throughout the process.

98. Funding did influence, in some ways, the way that we spoke to people and the way that people perceived the Bills — the Government funded Bills were the bigger Bills, which no individual or local authority would have been able to fund. They may have been brought forward as public Bills, but they met our criteria for private Bills so we handled them in that way.

99. The process was much quicker when an assessor was used. I hope that the objectors enjoyed the experience — I cannot say whether they found it better, because nobody experienced both scenarios. They were less intimidated because they were appearing before an assessor rather than a parliamentary Committee. The Edinburgh Bills appeared in the Committee rooms in the Scottish Parliament, which some people find intimidating.

100. Professor Hugh Begg was the assessor for all three Bills. He is a retired reporter from the Scottish Executive Inquiry Reporters Unit. He found the process completely different. I had many conversations with him about our approach, and he was very complimentary about the process and the support that he and the objectors received. He was able to distinguish between a public inquiry and a private Bill and is the best person to take advice from on that matter.

101. We did not assess what was better and what was worse for objectors. From our point of view, it was much quicker and easier to deal with an individual assessor than to try to get a Committee to turn up week after week to read and absorb all the evidence.

102. Mr Storey: It would have been difficult to maintain a quorum.

103. Mr Cullum: Maintaining a quorum was not a problem because we put a three-line Whip on them. [Laughter.]

104. Mr Storey: That is a bad idea.

105. Mr Cullum: All members were required to attend at all times, because the Committee was quasi-judicial. It was making a judicial decision. Occasionally, we lost a member for a meeting, and that brought us problems. In the main, however, members attended all meetings.

106. Ms Sutherland: A clear distinction was made about how the assessor was appointed. The assessor was appointed by the Scottish Parliamentary corporate body. The Committee did not appoint the assessor, and that assessor would report back to the Committee.

107. Specific Standing Orders set out that Committee members must attend certain meetings unless there are exceptional circumstances. The quasi-judicial nature of the Committee meant that certain Standing Orders were used to deal with whether members who were not available to attend an evidence session could take part in decision making.

108. The Chairperson: Who picks up the cost of the assessor? Is it passed on to the Parliament, or is it picked up by the promoter?

109. Mr Cullum: The assessor’s fees, all costs for hiring meeting rooms and the costs for the external people who we hired to produce a verbatim report were passed on to the promoter. The Parliament’s staff costs were absorbed. It took between eight months and a year to process a Bill, and three of my staff were working on that full-time.

110. The Chairperson: Were those costs absorbed?

111. Mr Cullum: Those costs were absorbed, aside from an initial fee of £5,000 that we charged.

112. The Chairperson: What method does the Scottish Parliament use with respect to private Bills? Is a list of firms available to promoters, or do they simply select a solicitor who has the necessary expertise?

113. Mr Cullum: In developing the procedure, we considered that used in England. We received representation that we should only use parliamentary agents. However, we could not see how that would be of benefit to us. Such people are skilled in Westminster procedure, but the procedure of the Scottish Parliament is completely different. The Scottish Parliament has no requirements or criteria; one does not have to be a solicitor or a parliamentary agent, but sponsors must conform to the Parliament’s Standing Orders and its style for Bills and documents. In practice, all large private Bills have come from Westminster parliamentary agents, but there has been a big learning curve. I am sure that Alison Gorlov will want to talk to you about that later.

114. The Chairperson: The Dublin Parliament uses a firm of solicitors which has at least five years practice experience. As you know, the procedure for drafting private Bills is different at Westminster. The Scottish Parliament is different again in that if a guy in the street can demonstrate that he can do it, he is allowed to do so. Is that correct?

115. Mr Cullum: That is the theory — the reality is somewhat different [Laughter.]

116. The Chairperson: I suspected that it was not as simple as that.

117. Mr Cullum: The Baird Trust Reorganisation Bill, to which I referred earlier, was drafted by a firm of solicitors in Scotland. I am not sure how much of their original draft survived the attentions of my solicitors and ourselves or how many drafts were needed to get it into the correct form, but that assistance was made available. I am not sure how much assistance would have been given to a non-qualified person; we would need something to begin with.

118. The Chairperson: I suspected that that would be the case. Do any members have questions before I draw this session to a close?

119. Mr Storey: Obviously, appointing assessors has been of added value; however, is there anything else that you would want to change? Hindsight, as they say, is the perfect science. Nevertheless, given your considerable experience in dealing with a portfolio of Bills, what single issue that you still encounter would you wish to address and that, if addressed, would enhance the process.

120. Mr Cullum: We made many changes throughout the process; principally, our focus on pre-introduction — eventually we put a huge focus on that area. In addition, our focus on meeting and assisting objectors changed — we increased the number of meetings and adopted an honest and fairly blunt approach with them. Apart from introducing assessors, we introduced mediation meetings with promoters, from whom we have received complementary feedback. We have adapted evidence-gathering procedures to meet the demands of each Bill and, in addition, we are prepared to closely reconsider our procedures for future Bills.

121. I do not think that we have any big changes to make, because, if that had been the case, we would have made them already. We had a lot of freedom — our Standing Orders are beautifully vague. [Laughter.]

122. Mr Storey: Is there an audit process involved? We audit everything to death here, and we undertake inquiries about inquiries in order to ensure that the first inquiries were properly carried out. Subsequent to everything that has been done in the Scottish Parliament, has there been any official report on the private Bills process?

123. Mr Cullum: No, other than an inquiry by the Standards, Procedures and Public Appointments Committee that led to the introduction of the assessor, which required changes to Standing Orders. The Government also conducted an inquiry — if I can call it that — which led to the introduction of Transport and Works (Scotland) Act 2007.

124. Mr Storey: OK. That answers that question.

125. The Chairperson: Finally, although the Scottish Parliament has not had direct experience of hybrid Bills, should that situation arise, what would you say to us about it — or do you consider such Bills to be totally untouchable?

126. Mr Cullum: We have no rules or procedures to deal with hybrid Bills and, to date, no hybrid Bills have been introduced. If one were to be introduced, procedures, utilising Private Bill procedures, would be put in place.

127. The Chairperson: Are you saying that you constantly pray not to have such Bills introduced?

128. Mr Cullum: We are constantly threatened with them, but the reality has yet to materialise. The Bill I mentioned that may be introduced as a Private Bill could, potentially, be introduced as a hybrid Bill or a Government Bill. We know what we would like, but we will get what we get.

129. The Chairperson: Thank you, David and Jane, for coming. Your evidence was extremely useful and we appreciate your attendance.

130. The Chairperson (Lord Morrow): I welcome Mr Alan Sandall from the House of Commons. The Committee is ready to hear from you, Mr Sandall, when you are ready.

131. Mr Alan Sandall (House of Commons): I am Alan Sandall, and I am the acting Clerk of Bills in the House of Commons. I am representing my colleague David Doig, who produced a memorandum for the Committee. He apologises for being unable to speak to you in person due to illness. His paper sets out our joint position in answer to the Committee’s questions. I do not have anything else to say by way of introduction, but I am happy to answer any questions that the Committee might wish to ask.

132. The Chairperson: What aspect of Westminster procedure works particularly well?

133. Mr Sandall: It sounds very complacent, but, taken as a whole, the system does the job that it was designed to do in arbitrating fairly between the conflicting claims of private interests. A former colleague of mine once described the situation as one side trying to beat the other side over the head with a statute book. Parliament’s role is to ensure that everybody gets a fair hearing and that private interests are fully ventilated and considered. The involvement of both Houses in the process, with the advice of Government Departments, ensures that questions of public policy are also fully taken into account.

134. Mr W Clarke: Mr Sandall, you are very welcome. How does Westminster ensure that the objector, as well as the promoter, receives equal and fair treatment? Has consideration been given to providing legal aid or counsel? Westminster could provide such counsel to give the process a sense of transparency, openness and fair play, or perhaps the promoter could pay for it.

135. Mr Sandall: We have not provided any form of legal representation for objectors at public expense. However, we are concerned that private individuals who may not be as well resourced as the promoters of private Bills should have every opportunity to bring their concerns to the attention of the Committee on the Bill. We keep the fees for petitions against a Bill unrealistically low. Objectors are not required to employ a full-time parliamentary agent or a solicitor to act on their behalf. They can act on their own behalf, and in doing so they will have the full assistance and co-operation of the clerks in the Private Bill Office in preparing their case, although we cannot do the basic work for them. We cannot advise on tactics, but we give as much assistance and advice to them as we properly can, within the rules of fairness. A Committee composed of Back-Bench MPs, who are well aware of the position of the small man, will bend over backwards to ensure that an objector is given every opportunity to express his own case and to call into question the promoter’s case.

136. Mr W Clarke: Does that system work well? Are objectors happy with it?

137. Mr Sandall: Yes. It works well in the relatively small number of cases in which it is called upon, as few Bills are opposed by petitioners. I do not have the figures in my head, but I can find them for the Committee. Quite a few petitions are settled by negotiation between the petitioners and the promoters at an early stage; it is now relatively uncommon for a private Bill to go before a Committee on opposed Bills. The massive exception is, of course, the enormous Crossrail Bill, which affected a wide range of private interests. The Committee on that Bill sat for years. It was a hybrid rather than a public Bill, but it involved several of the same considerations.

138. Mr W Clarke: What sort of Bills are being worked on at present?

139. Mr Sandall: The current crop of Bills largely comprises those promoted by local authorities. Four district councils in England seek to give themselves powers to control pedlars and street traders. That is the sort of issue that might otherwise be covered by public legislation of general application; however, since there is no such legislation, various local authorities that think that they have a particular problem are seeking powers for themselves in their own areas. It is perfectly proper for them to do so.

140. There is also a Bill relating to the takeover of the Northern Bank. Many bank takeovers require a Bill to sort out the complexity of the contractual arrangements.

141. The Chairperson: How closely is Parliament involved in the process? Is it allowed a hands-on approach or required to stand back? What do you advise the Assembly to do?

142. Mr Sandall: The Assembly should not seek to be proactive; it is always the responsibility of the promoters to make the case for their Bills. They must prove that, as far as the public interest is concerned, the project for which authorisation is sought is a good idea and cannot be authorised by any means other than by parliamentary authority.

143. Parliament’s job is to hold the ring between objectors and promoters, while ensuring that projects that do not meet the public interest test do not go through.

144. Mr McQuillan: You mentioned the Northern Bank Bill. Do any other Private Bills that are going through Westminster focus on Northern Ireland?

145. Mr Sandall: I cannot think of any.

146. Mr McQuillan: Have there been any in the past four or five years?

147. Mr Sandall: I do not think so.

148. The Principal Clerk of Bills: I think that the National Trust (Northern Ireland) Act 2007 was more recent.

149. Mr Sandall: I stand corrected. However, as the National Trust is a body that was established, or is substantially regulated, by statute, it must come to Parliament to request further powers every time it needs to do anything substantive.

150. Mr McQuillan: What details of the Northern Bank Bill 2007-08 require it to be a Private Bill? Will you run through the details for me?

151. Mr Sandall: I am afraid that I do not know the details. However, if it will help, I will send a note to your Committee Clerk. The Bill’s promoters will have been required to advertise it locally and to serve notices on anyone who may be affected.

152. The Chairperson: Alan, must the promoters of private Bills use parliamentary agents?

153. Mr Sandall: Yes. They must use roll A parliamentary agents.

154. The Chairperson: Does that work well? How many firms are on the list of parliamentary agents, and is there sufficiently wide scope for promoters?

155. Mr Sandall: Yes. Three large firms, formed by amalgamations, do most of the parliamentary work. There are probably two or three other firms that retain partners who are parliamentary agents but who do not actually do much parliamentary work. It is not a monopoly, although it is almost implicitly a closed shop. The advantage is that the agents are well known to the officers of both Houses and it is easy to establish a confidential, professional relationship with them.

156. Mr Storey: You are most welcome to the Assembly, Alan. Could the Committee take over the role of the examiner of private Bills?

157. Mr Sandall: It would be rather a chore for Members to have to do that. The role of the examiner is largely formal. The agents we deal with who promote Bills are professional and experienced and they all know the score; they know perfectly well that it is more than their livelihood is worth to try to cut corners. They comply scrupulously with the requirements of Standing Orders and if for any reason they cannot do so, they draw the matter to the examiner’s attention. There is no question of the wool being pulled over anyone’s eyes.

158. Martin Wilson (Principal Clerk of Bills): The witnesses from the Scottish Parliament told the Committee that to avoid hearing separate evidence from frivolous individuals they group objectors whose concerns are similar. Does that happen at Westminster?

159. Mr Sandall: I cannot think of a recent case when an opposed Bill involved a vast number of objectors representing different interests. We try to organise the Committee’s proceedings to ensure that it does not constantly go over the same ground. However, all Committee business is organised to make the best use of limited and valuable parliamentary time.

160. Mr Brolly: Do Westminster private Bill Committees have access to legal advice?

161. Mr Sandall: Yes. We depend heavily on advice from Speaker’s Counsel. That is necessary with the Committee on Unopposed Bills — when no one has petitioned against a Bill — because there is a danger that if a case is put against a Bill, it might succeed by default. Speaker’s Counsel is particularly important in making sure that a Bill is properly drafted, that the powers that it seeks are well precedented, and that the claims in the preamble for its necessity are well made.

162. Mr Brolly: Is the legal advice in-house?

163. Mr Sandall: Yes. The post of Speaker’s Counsel was created in the nineteenth century, principally to advise Committees on private Bills. It provides the most important advice that a private Bill Committee needs.

164. Mr Storey: Concern has been raised about the quasi-judicial nature of Committee Stage; in particular there are concerns about the equality of arms. Since objectors are usually less well resourced than promoters, how do Westminster Committees ensure that objectors’ interests are protected in all ways and at all stages, given that the promoters of private Bills are usually in a position of strength?

165. Mr Sandall: The matter is in the hands of a small group of constituency members who are well used to dealing with the problems of the individual citizen. They can see the objectors as somebody else’s constituents and know exactly what position they are in. There is an automatic feeling of sympathy with the underdog in any such contest. If a well-resourced public corporation, represented by a fully dressed Queen’s Counsel and a couple of junior barristers is facing Mr and Mrs Blogg, who are sitting alone, we all know who will get the Committee’s sympathy. It is right that the Committees should bend over backwards to be fair to the little man, and, on the whole, they succeed in doing so.

166. Mr Storey: Given the treatment of objectors and given also that there is no appeals system when objectors’ concerns have not been fully considered —

167. Mr Sandall: That is not quite right. In a bicameral Parliament there is nothing to stop people petitioning against a Bill in the second House. As a Bill goes through Parliament, it can only get smaller, not bigger. The two Houses can chip away at the powers that the promoters seek without adding to them. The House might decide at Report Stage to amend the Bill to limit the powers that are being sought.

168. The Chairperson: Alan, can Westminster Committees amend all Bills?

169. Mr Sandall: Yes.

170. The Chairperson: Would it be advantageous for the Assembly Committees to use Committee Stage to amend Bills or to make recommendations?

171. Mr Sandall: It would be better for Committees to make amendments because their members will know the story, having heard the evidence of both sides.

172. The Chairperson: Should they amend Bills?

173. Mr Sandall: Yes. I am sure that in certain cases Committees should have an executive rather than an advisory role.

174. The Chairperson: Do Westminster Committees impose limitations on the number of witnesses that they can call or questions that they can ask?

175. Mr Sandall: The normal practice is to allow both parties to call whoever they wish.

176. If one side sought to abuse the process by calling witnesses in their hundreds or thousands to make essentially the same argument, the Committee would say, “No, Mr Smith, I am sorry, but you have already made your point adequately.” If, on reflection, the Chairman of Ways and Means, who supervises the process, thought that the Committee had been cavalier in cutting off one side or the other, he could seek to have the Bill recommitted and would go through the process again in front of four Members who were not involved in the original decision.

177. The Chairperson: Suppose 2,000 Mr Smiths turned up. Should the Committee say that it had heard quite enough from the Smiths and that it did not want to hear any more?

178. Mr Sandall: It depends on whether all those Mr Smiths were petitioners. If I want to build a railway between London and Manchester and 2,000 Mr Smiths refuse to sell me their land, it is perfectly reasonable for 2,000 Mr Smiths to have the right to be heard before the Committee. However, if one Mr Smith and his 2,000 friends want to say very much the same thing, there is a much stronger case for imposing limitations.

179. The Chairperson: You could say in that case, “We have heard enough”.

180. Mr Sandall: Yes.

181. Mr Storey: You said that the Chairman of Ways and Means had the power to bring the process back to the beginning again.

182. Mr Sandall: He supervises the whole system. He acts as the friend of friendless Bills, if you like. If a Bill is not contentious, the Chairman of Ways and Means will formally move the Stages in the House. If a Bill is unopposed, the Chairman of Ways and Means, usually by deputy, will chair the Committee on Unopposed Bills that has been selected to consider it. If a Bill is opposed in the House, the Chairman of Ways and Means will ensure that both sides get a fair hearing by arranging a debate.

183. Mr Storey: I wish to raise something that we discussed with our colleagues from the Scottish Parliament. There is a cut-off point for objections. If information of real concern came to light about an unopposed Bill, could the Bill be challenged? Can a Bill that was originally unopposed become opposed?

184. Mr Sandall: Yes. It is very rare, but there is a procedure that allows a late petition to be deposited. Standing Orders impose a cut-off date towards the end of January. If there were good reasons that a petition against a Bill could not be deposited by the due date, a petitioner could apply for leave to deposit a late petition and the case would be examined by the Standing Orders Committee. However, it would have to be satisfied that there were good reasons.

185. The Chairperson: How are amendments dealt with after Committee Stage?

186. Mr Sandall: After Committee Stage, amendments — normally of a non-contentious and technical character that are rarely printed — can come from the promoters. They are moved en bloc by the Chairman of Ways and Means, but it is perfectly proper for other Members to table amendments to a contentious Bill to stop it proceeding unopposed; in such cases there would have to be a debate. To be in order, amendments would have to seek to reduce the powers of a Bill rather than enlarge them; otherwise it would be unfair to potential petitioners.

187. Mr Storey: How much of an issue have hybrid Bills been? They do not seem to have been an issue in Scotland, fortunately.

188. Mr Sandall: Ever since the Labour Government’s attempt to nationalise the aircraft and shipbuilding industries, hybridity has been engraved on our hearts. Most major public works projects that require legislative authorisation have been dealt with by hybrid Bill. The Crossrail Bill is the most recent, and before that there was the Channel Tunnel Rail Link (Supplementary Provisions) Bill.

189. Hybrid Bills are public Bills that have been promoted by the Government rather than by petitioners from outside the House, and they are hybrid because they affect private interests adversely. The first of a hybrid Bill’s two Committee Stages is before a Select Committee, which is similar to a Committee on opposed Bills in that the promoters and persons directly affected who have petitioned against the Bill can make their case. Committees on hybrid Bills can sit for months — if not years — and a Bill may be carried over from one session to the next to ensure that time and expense are not wasted.

190. The second Committee Stage is more conventional and often brief.

191. The Chairperson: Are they more difficult to deal with?

192. Mr Sandall: They are more difficult to deal with than ordinary private Bills, and that is due to the scale of the project and the nature and diversity of the opposition. The Crossrail Bill was more difficult than other hybrid Bills because the project underwent many changes. At various times, petitions for additional provisions were deposited, and those generated a further series of petitions against the project by people who would be affected by the increased powers that were sought. As the Committee examined the Bill, it suggested areas where it thought the Government ought to expand the project to include new stations, for instance. Each of the proposals for a new station required a fresh petition with a fresh opportunity for petitions against it. It was quite a performance.

193. The Chairperson: What is the average timeframe for a small Bill?

194. Mr Sandall: A typical Committee on an opposed Bill sits from Tuesday morning to Thursday afternoon and does the job in a week; a Committee on Unopposed Bills normally meets for one hour and deals with, perhaps, three Bills.

195. The Chairperson: That is efficient.

196. Mr Sandall: It is. It is convenient for the promoters to have some idea of how long a Committee Stage will last because they are paying for counsel and they will want to hire their man for the time that is required. If the business can be done in a week — so much the better.

197. Mr W Clarke: That makes my question irrelevant. Mr Sandall, would you change the procedures for private Bills?

198. Mr Sandall: I would make it simpler, but the principles of the procedures are right. I doubt whether we have enough work these days to justify the existence of a Court of Referees, for instance, and that is why I suggested that cases of locus standi should be dealt with by the Committee. That is the sort of minor detail that I would change if I had the opportunity.

199. The Chairperson: Alan, thank you for your attendance and for your useful presentation.

200. I now welcome Alastair Lewis, the president of the Society of Parliamentary Agents, and his colleagues Alison Gorlov and Robert Owen. Committee members will now hear views from the other side of the debate.

201. Mr Alastair Lewis (Society of Parliamentary Agents): Thank you. It is an honour for us to give evidence to the Committee. The Committee Clerk helpfully outlined for us the issues that the Committee is interested in. Therefore, our presentation will be limited to five particular areas, which we will discuss separately.

202. First, we understand that Committee members would find it interesting for us to talk about some examples of the private legislation we have promoted. Secondly, Mr Owen will deal with how much it costs to promote a private Bill. The third issue is whether there is a need for parliamentary agents to assist a promoter with a private Bill. Parliamentary agents have been in the happy position of having promoted all recent private Bills in the UK Parliament because there is a rule that says that such Bills must be promoted by a parliamentary agent. So far, all private Bills in the Scottish Parliament have been promoted by an agent, even though that rule does not exist there. Mrs Gorlov will deal with that issue, because she has more experience with the Scottish Parliament than Mr Owen and me. I have never promoted a Bill in the Scottish Parliament, nor has Mr Owen. The fourth issue is equality of arms. We came in at the end of Mr Sandall’s evidence, and I will deal with that issue. The final issue that the Committee Clerk mentioned is the timing between the stages in the progress of a Bill; and, in particular, the time needed for the preparation of the Committee Stage. Mrs Gorlov will deal with that.

203. Our society is long-established and is drawn from five firms of solicitors and parliamentary agents. The bulk of our work is the promotion of, and opposition to, private legislation. We are also involved in secondary legislation. I am sure that members have heard of Transport and Works Acts and Orders and harbour revision Orders, probably at great length. We spend a lot of our time doing that sort of work as well. We are all qualified solicitors.

204. I can give members examples of the type of legislation that we have promoted. Each of us will give a cameo of the sort of legislation that we have promoted recently. I am in the happy position of having a large client base, which consists of local authorities. In the UK Parliament, the majority of private Bills are promoted by local authorities.

205. I have promoted all of the recent London local authorities Bills, of which members may be aware. They are promotions which are undertaken jointly by all 33 London borough councils: sometimes it is 32, sometimes 31 — when they are not all on board when a promotion begins, that is. There is a huge and very interesting variety of subject matters covered in those Bills. For example, the London Local Authorities Bills introduced the concept of decriminalising moving traffic offences. In the mid-1990s, we promoted a Bill that decriminalised the enforcement of bus lanes in London, much to the chagrin of many motorists, but it had the effect of freeing up bus services in London to a huge extent. That has now been taken up nationally by the Government. Decriminalised bus schemes now operate across England.

206. We have taken that matter further in a recent Bill, which decriminalises a range of other moving road traffic offences, such as those associated with yellow box junctions. That has been introduced recently in London: it enables camera enforcement of road traffic legislation. The local authorities and Transport for London — depending on who is responsible for a road — keep the income from the penalty charges they raise and use it for highway improvement and other ring-fenced matters.

207. We have also promoted much legislation in London dealing with environmental crimes, such as graffiti and fly-posting. We have tried to find ways to oblige property owners to look after their properties better. The legislation places the onus on property owners to ensure that graffiti and fly-posters are promptly removed from their property.

208. We also deal with licensing issues. In the last London Local Authorities Bill, we addressed a particular problem which Westminster City Council has in Soho, namely, hostess bars. We have recently amended the sex establishment legislation to cover clip joints, as they are usually referred to, where people are attracted into dingy basement bars, fleeced of their money for a couple of drinks and sometimes marched off to cashpoints by the bouncers. We are having another attempt at dealing with that. I see that members are beginning to get a picture of the wide range of matters that we deal with.

209. We are promoting the London Local Authorities (Shopping Bags) Bill, which, if enacted, will prohibit the giving out of single-use-only shopping bags. There has been quite an upsurge in the number of private Bills being promoted by local authorities, which is mainly being driven by a particular problem in street trading and which I know has been dealt with in Northern Ireland by legislation. Some Councils felt that pedlars were causing problems in town shopping centres by getting away with street trading without a licence and causing difficulties with other licensed street traders and shop owners. I hope that gives members an idea of the sort of work that I do for local authorities.

210. Mr Robert Owen (Society of Parliamentary Agents): My experience and that of my colleagues, has been in other areas. We have dealt with a lot of private Bills over the past 15 to 20 years to provide for the merger of different bank undertakings, for example the merger of the Halifax and Bank of Scotland a few years ago. The Northern Bank Bill is before the Westminster Parliament at the moment. That bank is now part of the Danske Bank — Danish bank — and the Bill will authorise the Northern Bank to continue to issue its own banknotes as it does at the moment. Bank Bills have formed quite a body of legislation over the years. The former Northern Bank Act (Northern Ireland) 1970 was a measure passed by the former Northern Ireland Parliament. Bank measures have, traditionally, formed quite a body of local legislation, although nowadays, quite a lot of what used to be done by a bank Bill can be done by Orders made under the Financial Services and Markets Act 2000. However, to some extent, there is still a need for bank legislation.

211. I also deal with the vexed issue of tolls. I promoted for Merseytravel, the Merseyside Passenger Transport Authority and Executive, the Bill for the Mersey Tunnels Act 2004. It completely changed the tolling regime for the two Mersey road tunnels, allowing tolls to be increased automatically in line with inflation and providing for any surplus toll income that was not needed for the maintenance, refurbishment and general upkeep of the tunnels — which are quite complex structures employing hundreds of people — to be used for public transport throughout the whole of Merseyside. That was a very controversial Bill and was opposed at virtually every stage in House — probably the most controversial private Bill for a few years.

212. We have also dealt with quite a few private Bills in relation to markets and fairs — another peculiarly of private legislation. That is an illustration of the diverse nature of what can require private legislation.

213. Mrs Alison Gorlov (Society of Parliamentary Agents): Members have already heard about a variety of private Bills, and I will not provide other examples of some of the funnier measures that deal with the oddities. I will talk about transport and works. When people talk about private Bills, at some point or other they come to the difficult ones. I am not saying that the measures that Alastair and Robert have been talking about are not difficult — they are. However, people get more exercised about prospective compulsory purchase of their property or about trains roaring past their back windows — and that is understandable.

214. Works measures, as I am sure members know, are not dealt with in the UK Parliament any longer. The Scottish Parliament has dealt with them, but shortly Scotland will not deal with them there either. Hybrid Bills deal with works, and those are dealt with in the UK Parliament. They involve Parliament looking at two quite separate aspects. The first is policy. In other words; should there be a railway from A to B, a tramway crossing a town, or whatever it happens to be? Secondly, there is the detail. Should it do to Joe Soap what it is proposing to do? That is the tricky aspect for the Committee. It will have to consider a welter of technical evidence on such issues as noise and other environmental impacts, and the very important details about the individual impacts on a wide variety of people who may be affected in relation to their private property or businesses that might cease as a result of a proposal.

215. I have dealt with many such proposals in the UK and Scottish Parliaments. I also have experience of the different procedures used to deal with exactly the same problems under the Transport and Works Act 1992 in England and Wales.

216. It is fair to say that the three forums have extremely different approaches to the same problem. Ultimately, the outcome is that the railway is constructed, accompanied by a set of agreements with those affected. The outcome is probably not that different, but the route by which it is reached involves a different experience for promoters, and to some extent, objectors.

217. From the promoter’s perspective, the basic information that must be put together is exactly the same, whatever procedure is used — it will be set of proposals that make sense, or a piece of legislation formulating the proposals accompanied by a set of illustrative plans. All proposals must be supported by assessments, particularly an environmental assessment, and a case must be made to justify the proposals. That is the same whatever the procedure used.

218. The differences are governed by the nature of a parliamentary procedure and a secondary legislation procedure. As Mr Sandall said, the approach of members is understandably focused on individual constituents, whereas the Secretary of State’s approach would be significantly more technical and clinical, and that filters into the procedure. Although the material is the same, the way it is presented to Parliament would be different. However, the formal effect is the same: it comes before Parliament.

219. In the Scottish Parliament, the same petitions and objections can be raised against an Order. The essential difference comes when the procedure impacts on a petition. The UK Parliament has a procedure to test whether petitioners are entitled to be heard. That sounds harsh, because one would think that there is no reason not to hear all petitioners. However, it is not as simple as that. One would expect some people’s petitions against a private Bill dealing with a transport project to be heard: for example, someone whose property would be directly affected; someone whose business may be wiped out; an undertaker whose apparatus would be affected, or a representative organisation that is relevant to the particular project.

220. However, we all know that there are people who simply like objecting and would want to campaign against something that has no relevance to the project in question. In cases where the person concerned does not have a private interest that is affected in any way by the project, Westminster has rules to ensure that such a person can be challenged by the promoter.

221. The rules state that a petitioner must be directly and particularly affected in a way that the public at large is not. The policing of that rule rests with the private Bill’s promoter, and the parliamentary agents are expected to advise promoters on whether people are of sufficient standing to have their petitions heard. I am bound to say that Parliament takes a view on that.

222. I realise that I am here to talk more about cases than procedure, but the procedure impacts on the cases. In some cases, there have been lengthy challenges. A lot of people petitioned on a Bill to remodel the railways around King’s Cross. The challenges went on for weeks and months, and that is why the procedure in England and Wales was changed to an Order-making procedure.

223. Other Bills have related to small railway improvements. Years ago, the British Railways Board — and, more recently, Railtrack — promoted Bills on a regular basis. Those were an omnibus set of provisions to deal with miscellaneous bits and pieces that needed to be dealt with, such as preparing and taking down bridges, closing crossings and short stretches of railway for which new land was required. People that might be affected had the opportunity to object to those provisions.

224. In Scotland, the experience has been a sort of steering one for Members, who have been faced with major railway projects that have raised all sorts of aspects that they must consider; from whether there ought to be a station in a particular place; what the route of the railway ought to be, and how listed buildings should be treated.

225. In many respects, these Bills are more technical in nature than those that my colleagues have mentioned. When considering such Bills, a Committee has to address technical issues. Committee members have to get their heads around detailed environmental issues directly. Problems with noise always come up when transport projects are being considered, and it can be difficult for most of us to understand.

226. The Committee would also need to know technical details about individual petitioners, and those tend not to arise with a Bill that deals with an already understood subject. That is all that I need to say about the transport cases that we have been involved with.

227. The Chairperson: Thank you for your opening remarks. The Committee would now like to ask some questions. I want to ask a question about an issue that the Committee picked up on when it visited the Dublin Parliament. Have you ever come across charter law in any your deliberations?

228. Mr Lewis: I have not come across it in parliamentary forums. I have assisted local authorities in drafting Royal Charters, which were then put forward to the Privy Council Office. I understand that the Cabinet Office now deals with the mechanics of making a Royal Charter. It has been some years since I have done that — it was after the last major round of local government reorganisation in England and Wales. New local authorities were founded as a result of that, and the borough charters had to be swept up and merged to create one new borough charter. I have not come across charter law in the context of private Bills.

229. Mr Owen: In some cases, companies have been incorporated by Royal Charter, and have then gone to Parliament for additional powers. Things can get intermingled if some legislation comes from the charter and some comes from a series of subsequent Acts. Standard Life, the assurance company, is a good example of that. Most recently, the Privy Council dealt purely with new charters.

230. Mrs Gorlov: That applies to some institutions, not just companies such as Standard Life. At one time, there were matters that could not be dealt with by charter so Parliament stepped in. Once Parliament steps in, one cannot alter what it has been done by way of charter. An example of that is Syon College, which was founded in the seventeenth century as a club for the clergy of London. It had to go to Parliament, but that is not a frequent occurrence.

231. The Chairperson: Does the Society of Parliamentary Agents have any people in Northern Ireland?

232. Mr Lewis: No, all five firms are based in London, and the individuals who make up the society are all London-based solicitors; none is based even in Edinburgh or Cardiff.

233. Mr Owen: Over the years, they have all, to varying degrees, promoted legislation that has affected England, Wales, Scotland and Northern Ireland.

234. The Chairperson: The situation in Dublin is somewhat different, because the Government can use solicitors who have a minimum of five years’ experience. Is that is a good idea?

235. Mr Lewis: Mrs Gorlov will step in if I get this wrong; however, I think that that is how things operate in Scotland. As far as I am aware, the Scottish Parliament does not require private Bills to be promoted by a parliamentary agent; it so happens that they all have. Presumably that has been the free choice of each promoter, who would normally be advised on projects by a local firm of solicitors. However, when promoters need expert advice on drafting Bills and procedural stages they tend to approach firms in which our members are employed.

236. The Chairperson: If I understand what our Scottish colleagues told us, the situation there is different even from that: the Scottish Parliament does not insist on advisers being legally qualified —

237. Mr Lewis: At all?

238. The Chairperson: I think that I picked them up correctly: if individuals or bodies can demonstrate their competence to deal with the issues, such an arrangement can proceed.

239. Mr Owen: Competence is crucial. In Westminster the Speaker must be satisfied that those concerned have a practical knowledge of Standing Orders and the procedures that relate to private business; that is the key test. How that is formulated in the various jurisdictions is another matter; however, it is in a promoter’s interest to ensure that the people that they employ are knowledgeable and experienced.

240. Mrs Gorlov: Westminster is the only place in which roll A parliamentary agents are retained, which, to some extent, is an accident of history. However, the fact that such a system works is demonstrated by what happens elsewhere.

241. Mr W Clarke: I welcome the witnesses. Pricing is a major issue. Does your pricing structure have a sliding scale for bodies such as charities, local authorities and multi-nationals or does one price fit all?

242. Mr Owen: That is a matter for negotiation between the promoter and the firm to be employed. If the promoter is a charity, charitable considerations are a factor.

243. There are two considerations on fees. The first concerns the fees payable to an Assembly or Parliament for a particular Bill. In Westminster there is a rule that charitable, education, religious and not-for-profit organisations — except local authorities — pay only a quarter of the fee, which at the moment is £16,000. Therefore charities, for example, pay £4,000 for a Bill — £1,000 on the First and Third Readings in each House.

244. The second issue is professional fees, which is a matter for negotiation between the agent or solicitor and the promoter. As we are solicitors, such fees are ultimately regulated by the Law Society of England and Wales or the equivalent body in Scotland or here. Such negotiations are conducted commercially and reflect the circumstances of particular cases. Work on local authority cases is put out to tender and the winning firm is appointed on that basis. Over the years, that system has worked well.

245. Mrs Gorlov: One might ask whether the parliamentary agents’ monopoly means a lack of competition. However, that is not the case. A great deal of work comes from public-sector organisations or organisations that put their work out to tender, and that process is highly competitive.

246. Mr Lewis: I should have mentioned at the beginning that we come from three separate firms; we do not represent the views of a single firm. I can vouch for what my colleagues said about competition between firms. As one who acts primarily for local authorities, I can confirm that they are under an obligation to ensure that they achieve the best value for money.

247. Mr W Clarke: Has the Society of Parliamentary Agents ever been presented with a good private Bill that was not promoted for reasons of cost? Would the society take such work on if it seemed that the Bill would greatly benefit many vulnerable groups?

248. Mr Lewis: It is difficult to say because there can be many reasons for a measure not going ahead. I receive numerous queries throughout the year from local authorities and others about primary legislation and the promotion of private Bills. The first questions that are asked are how long will it take and how much will it cost. Rarely has someone said that they do not want to promote a Bill simply for reasons of cost.

249. A local authority’s decision on whether to proceed with a Bill often depends on which of the authority’s divisions will bear the costs. For example, it might be decided that a local authority’s licensing department should pay for the promotion of a Bill that deals with licensing. However, that department may not have the resources to meet the costs. Thus the local authority must decide whether the problem that the Bill is designed to address — for example, the problem with pedlars, which I mentioned earlier, and is experienced right across the country — is so great that it justifies the expense of putting legislation through Parliament. I cannot recall a case where a charity that approached me to promote a private Bill was put off by the cost that was quoted.

250. Mr Owen: In two or three cases that I have worked on — although I cannot name names — I quoted a figure of x thousand pounds, but the promoter asked me whether I would do the work for y thousand pounds because that is the amount that the organisation had allocated for the Bill. I said yes because we believe in contributing to the community and in doing pro bono work. We have worked on Bills for a lesser fee when they involved a good measure, and we try to facilitate such matters when they arise.

251. Mrs Gorlov: People often turn to private Bills because they are the cheapest and most effective way of achieving their aim. For example, some of the aims of the bank Bills could be achieved in other ways — at least in theory — although those could be very expensive and might not work terribly well. I have worked on a couple of cases where people have decided not to go down the private Bill route because they thought that they could achieve their aim in another less formal and cheaper way, and I think that they might have been disappointed. However, I do not think that anyone in my firm has looked at a quote and said that they could not do the work for that figure and left it at that.

252. Mr Brolly: Membership of the Society of Parliamentary Agents is obviously fairly profitable for solicitors’ firms. How does one become a member of the society? Who issues the invitation to join? Usually, when a public body contracts an outside person to undertake work, the contract is fixed-term and the person must reapply to have the contract renewed. Is that the case with the society?

253. Mr Lewis: We must distinguish between two separate issues: the first is how one becomes a roll A parliamentary agent in the first place; the second is how one becomes a member of the Society of Parliamentary Agents. They are two different concepts. I suspect that you are talking about the former.

254. Mr Brolly: Yes.

255. Mr Lewis: As Mr Owen said, to become a roll A parliamentary agent one must demonstrate to the Speaker of the House of Commons and to the Chairman of Committees in the House of Lords that one has a good working knowledge of Standing Orders and parliamentary procedures on private Bills.

256. Mr Brolly: Does that apply to a person or to a firm?

257. Mr Lewis: It applies to a person. One signs the roll as an individual, and one’s responsibilities to Parliament as an agent are as an individual.

258. If someone messes up, it is their fault not their firm’s; if someone breaches the rules that Parliament has laid down, that person gets into trouble not their firm.

259. Before last year, I was the last agent to be admitted to roll A; that was in 1995. It does not happen very often. Last year, a colleague of ours from one of the five firms — it is not represented here today — was admitted to the roll. At one of our regular meetings he told me that he had to answer a formal series of questions about private Bills. He had no prior knowledge of the content of the questions. After the test he was admitted to the roll and then successfully applied to join the society, which is more of a trade body.

260. Mr Owen: Like us, he joined a firm at a certain stage of his career. We spent three or four years in the firm working with agents on private Bills, after which the senior partner felt that we were sufficiently experienced to be proposed for admission to the roll. That is how it has always worked. It is self-regulating, but experience shows that it works well. I worked for the firm for four or five years; then, because a partner was retiring, I was proposed to take his place.

261. Mrs Gorlov: I do not know whether the Committee is concerned about how people enter the profession of parliamentary agent, not just how they qualify but how they get into a firm in the first place.

262. A newly qualified solicitor will apply to a firm that specialises in an area in which he or she is interested. If they want a job in a tax department, they will go to a practice with a good tax department. Perhaps because there is not as much parliamentary work as tax work, for example, fewer people may know about it and therefore there is less interest.

263. However, as with any other area of law, those to whom that kind of work appeals will join the few firms that specialise in it. The number of members is governed by the volume of work. If the people who join such firms are good enough, eventually, as my colleagues explained, they will qualify as parliamentary agents.

264. We do not want Committee members to think that it is an exclusive branch of the profession that people can join only if they have special influence. It is like any other area of the law.

265. Mr Owen: It is market-driven.

266. Mr McQuillan: Robert, you mentioned the Northern Bank Bill 2007-08. What does that Bill consist of? Have you dealt with any other Bills that affect Northern Ireland in the past five or six years?

267. Mr Owen: I have not. Very few private Bills in the past 10 years have been specific to Northern Ireland. The last one was the National Trust (Northern Ireland) Bill, which became the National Trust (Northern Ireland) Act 2007 and which a colleague of Alison’s promoted.

268. The Northern Bank Bill 2007-08 is necessary because of the reorganisation of the bank, which is now a subsidiary of the Dansk Bank Group. The sole purpose of the Bill is to allow the bank to continue to issue its own bank notes. Although everything else concerning the reorganisation of the bank can be applied through the Financial Services and Markets Act 2000, the right to issue bank notes cannot.

269. I think that the previous bank legislation in Northern Ireland was the Allied Irish Banks Act 1996, which Alison worked on.

270. Mrs Gorlov: That is correct. The Act was necessary when the Allied Irish Bank became the owner of a Northern Irish bank. Although such a deal could normally be completed without going to Parliament, it was necessary because the bank in question issued its own notes.

271. Mr Owen: In the past, Parliament took the view that because one element of a transaction can be achieved only through a private Bill, the whole package should be put together in a Bill, which is often the most expedient way.

272. The Northern Bank Bill 2007-08 was the last in a stream of bank Acts or Bills — there have been about 30 since 1980. Is that right?

273. Mrs Gorlov: Something of that order.

274. Mr McQuillan: How much would it cost to put such a Bill through Parliament?

275. Mr Owen: Much depends on the extent of opposition, if any, from petitioners, MPs or peers. The Northern Bank Bill has just started its passage because it was deposited in November with eight other Bills. It was not petitioned against in the House of Commons and will therefore go unopposed to a Bill Committee in the next two or three months. If all goes well and the Bill is not opposed in the House of Lords, it will be passed by the summer.

276. As a colleague of mine is dealing with that Bill, I am not privy to the commercial arrangements; however, I do not expect it to be too expensive because it is short and will be reasonably easy to draft. Nowadays, Bills must meet requirements that demonstrate that promoters have thought about compliance with legislation such as the Human Rights Act 1998. That generates a great deal of additional work. However, the Bill is short and looks as if it will be relatively — if not completely — unopposed and should not require debate in the two Houses. Consequently, I expect the Bill to complete its passage by the summer and not be too expensive.

277. Mrs Gorlov: Is that answer satisfactory or do you want an indication of the order of cost?

278. Mr McQuillan: A rough order of cost would be helpful.

279. Mrs Gorlov: The downside is that if a Bill is opposed, its cost cannot be estimated — in theory, the sky is the limit.

280. Mr Owen: As with any litigation.

281. Mrs Gorlov: It is exactly like litigation.

282. However, one can estimate a likely figure for a short and unopposed Bill. Alastair, Robert and I work for three different firms that operate in a very competitive field; therefore I will not be too precise about cost. For a short, unopposed, uncomplicated Bill the fee should be under £20,000 — perhaps significantly under. That figure is very low in comparison with the cost of litigation.

283. Mr Brolly observed that my occupation was obviously profitable — we all make a decent living from what we do — however, it is not as profitable as many areas of legal practice that are entirely market-driven. Private Bills tend to be promoted by institutions and local authorities from the public sector that cannot stomach the eye-watering hourly rates that one reads about in relation to, for example, commercial lawyers in the City of London.

284. Mr Lewis: The overall fee will be much more than £20,000 because House fees of £16,000 must be added. The cost of printing a Bill must also be added; for a simple two- or three-clause Bill the printing cost will not be very high. However, as a Bill passes through its stages in Parliament, reprinting costs will not be insignificant and can run into thousands of pounds. Various other disbursements must be added for advertising — from experience, I know that it is not cheap to advertise in ‘The Evening Standard’. [Laughter.]

285. Mr Owen: The printing fees for a short Bill should be between £4,500 to £5,000 plus VAT, and the same for advertising fees in ‘The Belfast Gazette’, ‘The London Gazette’ and local newspapers. All advertisements cost money, which must be added to House fees, the other disbursements and professional fees.

286. Mrs Gorlov: A promoter who paid the full £16,000 House fee would probably find that the fees and other outlays were higher than the parliamentary agent’s fee. The total professional fee is not necessarily the largest element of the cost.

287. The overall cost of a short Bill, including fees, would still come in well under £100,000. I do not know what litigation lawyers tell their clients these days, but they used to tell them not to go to the High Court unless they had a certain figure under their belt. One hundred thousand pounds does not go far in High Court litigation nowadays.

288. Mr Lewis: To carry on the litigation analogy, there is also a much higher risk that one will end up paying the other side’s costs as well. There is a slight risk of that happening in Parliament. I do not know how much the Committee has been told about the risk of cost orders being made against promoters or, indeed, against petitioners; however, it is minimal compared with the risks of litigation, in which fees could be doubled.

289. Mr Storey: You are welcome to the Committee. Your submission has been useful in providing an insight into the other side of the issue. You mentioned equality of arms and the quasi-judicial nature of the process. How are objectors’ interests protected in such circumstances?

290. Mr Lewis: In a sense, that depends on whether they need to be protected. As a parliamentary agent, I was involved with several petitioners against the Crossrail Bill, which is a hybrid rather than a private Bill. The procedures for each type of Bill are similar.

291. The Crossrail Bill was considered by a House of Commons Select Committee until, after more than a year, it finally finished its proceedings in October 2007. In the Committee room I saw individuals present their cases, often against experienced silks. It is for the Committee to ensure that an individual’s rights are protected. My experience with the Crossrail Bill was that the Chairman is always keen to protect an individual’s interests when he or she is up against formidable opposition; for example, when unrepresented parties petition against London Local Authorities Bills. The system is self-regulating. I cannot speak for individuals; however, in some outcomes — particularly those on the Crossrail Bill — the promoters of the Bill made significant concessions and the Select Committee made decisions in favour of unrepresented petitioners.

292. To return to litigation, the same problem arises in the High Court when there are unrepresented applicants in judicial reviews. Because politicians want to be seen to be doing their best for the Mr Smiths of the world, I believe that unrepresented petitioners get protection from the Committee. I have not seen any case of a petitioner being disadvantaged by being unrepresented. There have been some cases in which a Committee has looked favourably on the petitioner. The little guy has the advantage from the outset; it is sometimes an uphill battle for the promoter.

293. Mr Storey: Would being able to access legal counsel be to little Mr Smith’s disadvantage? If people on low incomes who feel that they are up against the big silks — the establishment, in a sense — could access legal counsel, would that lessen the sympathy of the Committee?

294. Mr Lewis: There is a danger that it might. If an individual was almost forced into having someone represent him, the first danger is that he might use someone who was not up to the job. For example, a pool of junior barristers that does pro bono work and which is recognised by the Assembly as competent to represent petitioners might not be up to the job. The Assembly will not necessarily know how to grade a barrister for such work. There is a danger that petitioners may end up worse off and lose sympathy through bad legal representation. I would not advocate that, and the Society of Parliamentary Agents would oppose the idea that a promoter should be required to pay for the other side’s legal representation. If a promoter has behaved unreasonably, he should pay the other side’s costs, but he should not have to do so as a matter of course.

295. The Chairperson: We are running over time, and there are other questions. If we presented our remaining questions to you in writing, would you be prepared to consider them?

296. Mr Lewis: Yes.

297. Mr Owen: We are happy to answer questions in writing.

298. The Chairperson: Thank you for your presentation, which was enlightening and useful.

299. The Chairperson (Lord Morrow): We have with us Diane Ruddock and Graham Thompson from the National Trust, and they are both very welcome. Without further ado, I will ask them to make their presentation.

300. Ms Diane Ruddock (The National Trust): Thank you, Chairman. Good afternoon, members. We are very pleased to have been invited to share our experience of private legislation with the Committee, and we hope that our observations will help members in their deliberations. This afternoon, I will give you a brief introduction to the National Trust and its role in Northern Ireland and how we reached the point where private legislation was necessary. Then my colleague Graham Thompson will talk us through the steps that we took in bringing that legislation to Parliament.

301. The National Trust is an independent conservation and environmental charity. It was founded in 1895 to preserve places of historic interest and natural beauty permanently for the benefit of the nation. That theme translates in twenty-first-century language as having a remit to look after beautiful and special places forever for everyone, which trips off the tongue a little more comfortably.

302. The National Trust is a membership organisation, which covers England, Wales and Northern Ireland — Scotland has its own separate National Trust for Scotland. The National Trust is supported by more than 3·5 million members throughout England, Wales and Northern Ireland. We have more than 46,000 members in Northern Ireland, which is a substantial body of support. It is the largest conservation charity based here in Northern Ireland, and its role is to actively promote the protection of our natural, built and cultural heritage. As a charity, our experience is based broadly across those three areas, whereas other bodies tend to focus on one specific area. The way in which we deliver on our responsibility is through protecting, and providing access to some of the finest coasts, countryside, historic houses, gardens and industrial heritage in Northern Ireland.

303. The National Trust has a broad remit, and I wish to give some examples of properties that are under its care. Inevitably, one of the first examples that comes to mind is the Giant’s Causeway, but we also look after Carrick-a-Rede rope bridge and other sites on the north coast; iconic sites such as Slieve Donard and its neighbour Slieve Commedagh in the Mournes; and, more recently, Divis and the Black Mountain, overlooking Belfast. The ownership also includes places such as Mount Stewart house and garden and Castle Ward in County Down, properties in County Fermanagh such as the Crom demesne, Castle Coole and Florence Court, and some properties in mid Ulster.

304. The National Trust also looks after some smaller properties; it is not all about the great iconic places. Smaller places in our ownership include Patterson’s Spade Mill, Derrymore House in Bessbrook and Wellbrook Beetling Mill. Our industrial roots are, therefore, reflected.

305. The National Trust also works proactively with Government Departments and other agencies and partners in the business and environmental communities to promote, as well as the properties in its ownership, environmental protection, protection of the landscape, and so forth.

306. It is important for the Committee to note that, as a charity, the National Trust has a statutory basis that came about through the National Trust Act 1907. Between 1907 and 1971, subsequent Acts were introduced to update that legislation. The principal legislation that gave the National Trust its statutory basis in Northern Ireland is the National Trust Act (Northern Ireland) 1946, and that legislation brought our activities in line with that of England and Wales. The National Trust became active here in 1935 with the formation of a committee for Northern Ireland. That is by way of background as to the scale of the operation in Northern Ireland.

307. With regard to the private legislation, of which we have recent experience, I will give a brief summary of how we arrived at that point. In 2002, the National Trust — at national level — decided to undertake a review of its governance structures to ensure that they were fit for purpose for the twenty-first century. That decision was taken in the context of the National Trust’s membership and property portfolio having grown significantly, and also its staff. It was felt that it was an appropriate time to review how the National Trust’s governance was structured.

308. Prior to that review, the overall governing body for the National Trust — its trustee body — was the National Trust’s council. The council was a large body comprising 52 members, half of whom were elected by the membership of the National Trust at its annual general meeting and half of whom were drawn from a range of appointing bodies of organisations whose aims were in sympathy with those of the National Trust.

309. As a result of the review of governance, it was recommended that responsibility for the trusteeship of the National Trust should move to a smaller body of 12 people, known as the board of trustees. It was decided that that would be a more effective and more appropriate way of managing an organisation of the scale of the National Trust. It was also decided that the role of the council should be modified.

310. The new 12-person board of trustees is responsible for running the charity and for ensuring that the organisation works as well as possible to deliver its core purposes. The majority of the members of the board of trustees are council members.

311. The National Trust’s 52-person council’s role is to appoint the trustees and to make sure that they discharge their responsibilities. The council could be described as the conscience of the National Trust. The members of the council have a significant breadth of experience, and so they hold the trustees to account and ensure that the organisation delivers.

312. The changes to the governance structures were given effect through a Charity Commission scheme — or the scheme, as it is known — that was delivered through the Charities (National Trust) Order 2005. However, the National Trust Act (Northern Ireland) 1946 refers specifically to the council as the trustee body for the National Trust, so there was an anomaly between the situation here and what happens in England and Wales. It was not possible for the Charity Commission scheme to amend that. Therefore, in discussion with the Charity Commission, the trust decided that the appropriate way to amend that anomaly was to bring forward private legislation. That is how we got to that point.

313. At this stage, I would like to hand over to my colleague Graham Thompson, who will describe the process that we went through.

314. Mr Graham Thompson (The National Trust): The National Trust is a very complicated organisation. My role — as many Committee members will know — relates purely to events at the Giant’s Causeway. However, someone looked at my CV and realised that, previously, I had been an employee of the Northern Ireland Assembly and had had responsibility for trying to develop private-legislation procedures during the time of the previously suspended Administration. There was a lack of experience in our organisation, so I ended up being tagged onto the team that is involved in this.

315. As with almost any private Bill, the process began with the appointment of parliamentary agents. In this case, we appointed Winckworth Sherwood, one of three or four specialised firms that deal with this in London. The legislation was incredibly simple, compared to other private Bills. I am not sure what depth you have gone into with other Bills, but things such as the new Crossrail tunnel in London require incredibly complicated private legislation. We needed to do only two things: to legislate for the new trusteeship; and, a relatively minor issue, to allow tenants of the trust to become council members. Previously, they had been proscribed from so being. That had changed in England and Wales through the Charities (National Trust) Order 2005, and we needed to change also.

316. After appointing Winckworth Sherwood, we went through a consultation procedure that involved getting in touch with the relevant Government Departments, which were, in this case, the Department for Social Development (DSD) — as the governors of charity legislation in Northern Ireland — and the Department of the Environment’s Environment and Heritage Service (EHS), the Government body with which the trust has the closes links. We also wrote to all 18 Northern Ireland MPs.

317. We followed everything set out in Erskine May’s ‘Parliamentary Practice’. The National Trust membership approved the Bill at the annual general meeting (AGM) at the end of 2006. The agents presented the Bill in due course, and it was advertised in the ‘London Gazette’, where a period for the receipt of objections was stipulated. No objections were received, although one person wrote in to ask for further information. We consulted with that person, and as a result, he was happy with what it contained.

318. The Bill had its First Reading and Second Reading in the House of Commons, then it proceeded to the Committee Stage; the Attorney General gave approval for that to happen. In May 2007, it went to the House of Commons Unopposed Bill Committee. Our agent appeared for us and described the Bill’s purpose to the Committee. A series of questions was asked, and National Trust legal staff from England performed as witnesses. The Bill passed the Committee Stage without any significant amendments and then had its Third Reading. It passed to the Lords, where it went through the same process — First Reading, Second Reading and Committee Stage — and a couple of minor drafting amendments were made. The Bill was returned to the Commons for approval of the minor changes that had been made and eventually received Royal Assent on 26 July 2007.

319. We were preparing the Bill at a time when it seemed that devolution might return to Northern Ireland, so we had in-depth consultation and discussions about how we should proceed. We were advised to go through the Westminster route. That turned out to be prudent advice.

320. That is the process. Diane and I are happy to answer questions.

321. The Chairperson: Thank you to Diane and Graham for that presentation.

322. Mr McQuillan: How long did the whole process take?

323. Mr Thompson: Royal Assent was achieved in 2007. It went before our AGM in 2006, so it was a 12-month process.

324. Ms Ruddock: The AGM took place in November, but we had been working in preparation for that, so it took almost a full year.

325. Mr Storey: You will be glad to know that I am not going to ask any questions about the Giant’s Causeway.

326. You employed parliamentary agents. The Committee is examining whether that is the preferred route, or whether, as is the case in the Irish Republic, the use of a solicitor is a better option. In some cases, even people who do not have a legal background can fulfil that role. Do you think, bearing in mind the nature of the Bill that had to go through the House of Commons, that you were assisted by having an agent? Would that process have been better achieved by using a solicitor?

327. Ms Ruddock: Either approach could have worked. I discussed the matter with solicitor colleagues at our head office. Their experience was that it was better to draw on the advice and expertise of the parliamentary agents, for whom this is their day job — their bread and butter. That was probably more effective than dealing with solicitors who would perhaps have limited experience in this area, and who have other things to focus on. That was the reason why we chose that route. We were also able to use the agents to do the drafting, which worked well for us.

328. Mr Thompson: Drafting Bills is a specialised skill. Parliamentary agents are all lawyers anyway. I know from personal experience that attempts at drafting Bills by people who are not adept at that skill usually leads to bad legislation — if it ever gets that far.

329. Mr Storey: The other element is cost, which is something that we discussed earlier. It is a costly exercise. For your part, the primary issue was to get the legislation that you required for the better governance of the organisation. Again, bearing in mind the nature of your organisation, you were constrained in that you had to employ the services of a parliamentary agent. If the option had been there, would cost have been taken into consideration?

330. Ms Ruddock: As a charity, we are always weighing up costs. We knew that, although this was something that needed to be done, it was not very complex in comparison with other private legislation. Therefore, we felt that we would be able to deal with it within an appropriate budget. It is inevitable that cost will be an issue for a number of organisations.

331. The Chairperson: Can you be more specific? Can you give us any idea of the cost?

332. Ms Ruddock: Not off the top of my head, but we can check the figure and provide that for you as soon as possible.

333. The Chairperson: What about the consultation process? Mr Thompson, did you say that you received just one letter?

334. Mr Thompson: Yes.

335. The Chairperson: That letter was received following an advertisement?

336. Mr Thompson: It followed an advertisement in the ‘London Gazette’.

337. The Chairperson: What was the nature of that letter?

338. Mr Thompson: I do not have the specifics of that matter to hand.

339. Ms Ruddock: I do not have the specifics. My understanding is that itwas a query in relation to tenancy — the second issue. I was not party to the details of that. If it is relevant to the Committee we can provide more information.

340. The Chairperson: Why did you advertise in London and not in Northern Ireland?

341. Mr Thompson: That is a very good question.

342. Ms Ruddock: As the legislation was being brought through in Westminster, the practice was followed of using the ‘London Gazette’. Having had discussions with the Department for Social Development and having written to MPs here, we felt that the Northern Ireland element was being addressed.

343. The Chairperson: The legislation would affect property in Northern Ireland, but you did not feel that it was necessary to advertise in Northern Ireland and that it was better to advertise in London. Why was that?

344. Mr Thompson;

345. The ‘London Gazette’ is a national publication, and the ‘Belfast Gazette’ is a subsidiary of that. It may have been advertised in the ‘Belfast Gazette’; we will look into that.

346. Mr Brolly: A recurring theme during this morning’s session was the fact the petitioner objector is at a great disadvantage vis-à-vis the promoter. This is possibly another example of that, if the Bill was not advertised here. People who might have wanted to object were not given an opportunity to do so. Objectors are pitted against the power of the Establishment, which includes having the best legal counsel. The person who objects is likely to be an ordinary citizen with few resources and little expertise. I am not saying that anyone discriminates against the objector, but, given the way the system is, is it possible for the objector to get a fair hearing?

347. Mr Thompson: I can only answer that on the basis of what happens in other places. Apart from financial matters, which are the responsibility of the Treasury, this was the first Northern Ireland Bill to be introduced under devolved structures for 20 or 30 years. Therefore, it is hard to comment from a Northern Ireland perspective.

348. Procedures are well established in other places such as the Dáil, Westminster and just about every Parliament that is based on the Westminster model. It is called private legislation because it refers to a private body. Rules are needed, for example, to govern the constitutions of certain organisations, so it may not be appropriate for everyone to be able to object. The process of locus standi means that if people want to put in an objection, they must establish their right and competence to do so.

349. The question about resources is difficult to answer. As an organisation, we have significant resources. The man on the street may not have those resources. My understanding of other places is that the objectors are primarily from large, well-resourced organisations and bodies anyway.

350. Mr Brolly: As I said earlier, the presumption is in favour of the promoter from the start. That is where you begin.

351. Mr Thompson: It would be for the Committee to decide whether it were in favour or against a private Bill. The Committee would consider the arguments on either side.

352. Mr Brolly: I appreciate that there is likely to be an even split for and against the Bill on the National Trust; that is not the case with some of the issues that were dealt with earlier. However, I still think that a genuine objector should be given much more help. The fact that he cannot afford to object should not mean that he cannot object.

353. Ms Ruddock: That is something for the Committee to consider. In the scenario that we experienced, someone sought further information but did not pursue an objection.

354. The starting point of creating awareness was the presentation of the proposals at the AGM and, although only a small proportion of the membership attended, the notification of the AGM and the resolution afforded an opportunity to inform the members in England, Wales and Northern Ireland. However, your point about the balance between petitioners and objectors is well made, and members of the Committee must decide for themselves about the best way forward.

355. The Chairperson: In your written submission, you stated: “In accordance with Parliamentary Standing Orders the Bill was presented to members of the National Trust at its AGM in Cheltenham in November 2006 and a resolution calling for its introduction to Parliament was approved by the requisite majority of three-fourths of the members present in person or by proxy and voting at the meeting.”

356. Did you say that you have 46,000 members here?

357. Ms Ruddock: In Northern Ireland, yes.

358. The Chairperson: How many of them were consulted?

359. Ms Ruddock: They all received notification of the AGM and the resolutions that would have been up for discussion, and, if you wish, we can provide a copy of that notification. It would then have been up to members to decide if they wished to attend the meeting in person. Frankly, I suspect that the number of members who attended from Northern Ireland was small. Members also have the opportunity to participate by means of a postal ballot, which is overseen by the Electoral Reform Society, or by nominating a proxy — either an individual who attends the meeting or the chairman. I do not have figures for how many people availed themselves of that opportunity.

360. The Chairperson: Suppose that the sponsor of a piece of private legislation was based in London, but the impact of that legislation would be felt in Northern Ireland, and that sponsor advertised his or her intentions only in London. Although such a procedure would be legitimate and proper, would it be the best way to ascertain the views of the people of Northern Ireland?

361. Mr Thompson: It may not be. However, our organisation covers three countries — England, Wales and Northern Ireland — and we were attempting to bring practices here in line with what is happening in England and Wales. Therefore, we required a different parliamentary mechanism to make that happen. It is a continuation of the scheme that Diane referred to earlier.

362. Mr O’Loan: One of our interests — and perhaps anxieties — is the amount of Member involvement, and there are fears that it might grow out of all proportion. Of course, I accept that your Bill was relatively small and uncomplicated. Throughout the process, how much direct engagement was there with MPs, and, in order to ensure the Bill’s smooth passage, did you make informal contact with individual MPs or political parties?

363. Mr Thompson: Given that the Bill was to be introduced in Westminster, we wrote first to the 18 Northern Ireland MPs. I am not sure whether we wrote to members of the House of Lords and, if we did not, that was probably an oversight and, perhaps, we should have done so. There was some discussion about talking to MPs and members of the House of Lords in order to facilitate the process in the event of difficulties. However, I am not sure who was approached.

364. Ms Ruddock: When we wrote to the MPs, we offered them further information. However, they did not request any further information and, to the best of my knowledge, there were no further direct approaches to any of the Northern Ireland MPs.

365. Mr O’Loan: If you did not approach the parties directly, how were you sure that nobody would raise any objections as the Bill went through Westminster?

366. Mr Thompson: That is the standard approach during private legislation, because it is not political. It is private, not public, and that is not a political issue. Due to the nature of the issue, we took a judgement and decided that we did not need to line people up or get involved in any lobbying.

367. Mr O’Loan: Did you have any significant engagement with MPs or Committees during the formal process at Westminster?

368. Ms Ruddock: Colleagues from our head office, and solicitors, appeared along with the parliamentary agents and asked questions at the Committee Stage.

369. Mr O’Loan: I take it that that did not involve very much time.

370. Ms Ruddock: It was not substantial.

371. Mr Thompson: I remember hearing afterwards that Peter Bottomley asked a series of interesting and searching questions, and that was about it.

372. The Chairperson: You may have already answered this: how long did it take from the day you started on this road until the finished product?

373. Mr Thompson: From the annual general meeting to Royal Assent, it was about nine months. However, we were engaged with Winckworth Sherwood for three to six months before that.

374. Ms Ruddock: It took less than a year.

375. Mr Storey: If you had to go through the process again, what would you see as being a drawback, a difficulty or an issue that could have been dealt with better?

376. Ms Ruddock: It is difficult for us to address that. We recognise that this was a relatively simple piece of legislation. Clearly, we hear what the Committee says about engagement beyond ‘The London Gazette’, and that might be something to be considered. However, we found that the process worked; it gave us the opportunity to achieve our objective and to engage with Parliament as necessary.

377. The Chairperson: Thank you.

378. The next witness is Damien McMahon from Derry City Council. The council thought that it might go down this road at some stage. I do not think that it ever did, but it gained some experience from the attempt. You are very welcome.

379. Mr Damien McMahon (Derry City Council): Thank you. In some ways, I was disappointed that we did not go down this road. It was a very interesting experience, and we learned from it. This is very new to everybody in Northern Ireland. It used to be quite common under the old Stormont Parliament.

380. Members have just been given my written submission. I apologise for not having it with you earlier. I do not intend to read through it. It examines local Acts, private Acts and personal Acts, which are three different species of what is generally called private legislation, and compares them with what public Acts should deal with. That is important, because it may hold a clue as to why there has been so little interest in introducing private, as opposed to public, legislation.

381. I have also examined how local government may wish to be involved in private legislation. It is important to say that my expertise, rather than being general, relates mainly to the interests of local government in private legislation. Therefore, my presentation is more or less geared to why local government might be interested in private legislation, and I will try to illustrate several of the issues that that might raise. Having listened to the last set of witnesses, I hope that I will touch on issues, arising from my experience, that are of interest to the Committee.

382. The Committee and the Assembly will be considering the issue of private legislation from a much broader perspective than purely the interests of local government. Therefore, perhaps the best thing is for me to describe the council’s experience of private legislation, which may give rise to issues that concern the Committee.

383. The council was concerned about the private Brooke’s Park (Londonderry) Act 1899. Any Member who is familiar with the city will know that that is a fine Victorian park. In a generous bequest, Mr Brooke endowed the park to the city. He did so initially in his will and subsequently, rather cleverly, put the bequest into a private Act. The 1899 Act donated the land to the council but placed restrictions on its use, the majority of which are in section 10 of the 1899 Act.

384. The effect of the 1899 Act is that the council, as the successor municipality, is obliged to use and maintain the land as a park for the recreation of the citizens, and can do nothing else with it. Before my time at the council, the 1899 Act was tested in the High Court in the 1980s, when the council had plans to develop badly needed new offices in the former Gwyn’s Institution building in the park.

385. The council had gone as far as preparing the drawings, detailing the specifications, tendering and even letting the contract. When the council was on the point of cutting the first sod, an application arrived forbidding it to proceed on account of the Brooke’s Park (Londonderry) Act 1899. The case went to the High Court, which upheld that position. That caused quite a controversy at the time and delayed the construction of badly needed new civic offices for about 10 years until an alternative location was found.

386. The catalyst for the recent interest in the 1899 Act was that the local health authority is in the process of providing two new generation health and social care facilities, one of which has now been constructed and the other not. They used various of criteria to determine the location for the second facility that would best serve the population and, following a detailed analysis, Brooke Park seemed to be the ideal location. However, the health authority was advised that it might not be possible to build in Brooke Park due to restrictions contained in the Act.

387. The council was concerned about that and decided that it had to do something about the 1899 Act. I was asked to look at how it could be repealed or amended. I did that, and the council concluded that we should promote a local Bill at Westminster to have the Brooke’s Park (Londonderry) Act 1899 repealed.

388. There were alternatives to going to Westminster. We could have brought it to the Assembly, but at that time — about a year ago — there were no structures or provisions in place to deal with such issues. There is, of course, power in the Assembly to do those things. We also considered asking the Department of the Environment to deal with the issue by way of an Order in Council. The fourth option was to ask the Department of the Environment whether it was interested in taking a general power in a public Act to repeal or amend private legislation relating to council lands by means of subordinate legislation. The council decided to pursue the option of a local Bill at Westminster. We went to parliamentary agents, and did not think of doing anything else; that was the right thing to do.

389. Arising out of that investigation, we dealt with issues such as timescale, costs, the use of parliamentary agents and consultation. We did not proceed with the local Bill, but it would have been interesting to have done so. The Brooke’s Park (Londonderry) Act 1899 still exists in all its glory, and the council is maintaining the land and hoping to further enhance it as a fine Victorian park.

390. The Chairperson: Thank you, Mr McMahon. That was an interesting submission. You said that one of the things that you considered was cost; did you have an estimate of costs?

391. Mr McMahon: Yes; we were very interested in that, of course. We had to make provision for the cost in the estimates. The parliamentary agents informed us that in the worst-case scenario, where the private Bill was heavily opposed, the process could cost us in the region of £150,000. That would have included approximately £25,000 for parliamentary fees, and the remainder was for costs for agents and counsel — junior and senior.

392. Our estimates provided for costs of £50,000, because we adopted the view that there would not be serious opposition to the Bill. We thought that it would be fairly straightforward and that it would be a simple Bill to draft.

393. Mr McClarty: The presentation was interesting; it resonated with a situation in my own area. Limavady Borough Council has a piece of land that was bequeathed to the town for leisure purposes, and we may seek to have that set aside soon.

394. Your quest was to get land released. For what other reasons might a council seek a private Bill?

395. Mr McMahon: If one looks back over the past 30 years or so, it is difficult to see why a council would need such a Bill — except in the most unusual circumstances. However, one must look beyond that and consider what councils have needed local or private Acts for in the past, because there have been quite a number of them. It is particularly interesting to note that some of the local and private Acts that were promoted by the former Londonderry Corporation and the former Belfast Corporation still exist. You will see Belfast City Council placing in the press notices of its intent to do something under the authority of a Belfast Corporation Act of some year or other — there have been a number of them.

396. We have some local Acts as well, such as the Londonderry Corporation Act 1931, which covers a range of issues, including, interestingly, what the council may or may not do with playing fields. Both Derry City Council and Belfast City Council have local Act powers, which govern certain public health matters, in a broad sense, such as those to do with dangerous structures.

397. Although the Assembly is exploring private legislation and putting structures in place, the number of private Bills, I suggest, will be minimal. What is the alternative? You can deal with these matters through a ministerial order for which there is an enabling provision in a piece of primary legislation — a public Act — or you can use primary legislation. You can still have provision for private legislation or local legislation for councils. However, since 1973 it has been impossible to imagine why one council might require a power that no other council might require. If all councils require certain powers, they should be granted by a public Act.

398. Mr McClarty: That is the first time that I have ever had free advice from a solicitor. Thank you.

399. Mr Brolly: How do you know it was free?

400. The Chairperson: There is a first time for everything.

401. Mr McMahon, you used a parliamentary agent for your legislation. Can it be done any other way?

402. Mr McMahon: Yes. Earlier, I heard a witness or a member mention that parliamentary agents are not used in Dublin. That was news to me.

403. The Chairperson: Nor are they used in Scotland.

404. Mr McMahon: Obviously, therefore, there is no need for parliamentary agents, as such. Personally, however, if I were asked to promote private legislation, I would definitely use a parliamentary agent, especially in Westminster. There are, perhaps, only six parliamentary agents in London. Their in-depth experience, their contacts, their overwhelming familiarity with the nitty-gritty of procedure, and so on would smooth the passage of a Bill. As someone said earlier, it is important to get the legislation right, even from the point of view of parliamentary time — or Assembly time, if it comes to that. You cannot have draft legislation that is not right, because then it has to go back and forth to be corrected and that simply clogs up the entire system. The use of parliamentary agents is perfectly acceptable.

405. Inevitably, the promoter of a local Bill would seek legal advice anyway, and parliamentary agents are nothing more than specialised lawyers. Why not go to a specialist lawyer? If you have a legal issue with anything, you want to go to a lawyer who has specialist expertise. In the case of private legislation, that means a parliamentary agent.

406. The other big attraction of using parliamentary agents, certainly in Westminster, is that they can be held personally accountable for messing up the promotion of private legislation.

407. The Chairperson: You reminded us of that in an earlier presentation. Is the individual held accountable, rather than the firm?

408. Mr McMahon: The firm of parliamentary agents would be accountable in my view.

409. Mr McQuillan: Was it the money that put Derry City Council off in the end?

410. Mr McMahon: No, not at all. I must say that I was slightly concerned about that, but, in the end, matters moved on: and the health authority was working to its own timetable and budget to get the facility in place. Although it is not yet in place, it will likely be located on a piece of council land on which there are no restrictions.

411. Mr McQuillan: So the council did not think that £150,000 was too expensive?

412. Mr McMahon: It did not make provision for £150,000; it made provision for only £50,000, but that was on the basis that the Bill was unlikely to be strongly opposed and that it would be fairly simple to draft.

413. Mr Storey: It is intriguing to listen to the whole story. I appreciate the knowledge that you bring to this matter, and I would be interested to hear what you learnt from the research that you carried out. You referred to the Londonderry Corporation Act (Northern Ireland) 1931; an issue that has been raised with us, especially in Dublin, is, charities, sorry charters — royal societies, and so on. How could any of those issues be dealt with through this kind of legislation? Do you see them as being very problematic?

414. Mr McMahon: Without wishing to sound too pedantic, this is where I make the distinction between local Acts, private Acts and personal Acts, all of which are private legislation. Local Acts confer powers on local government, private Acts confer powers on corporations and personal Acts confer powers on individuals. Thus, the proper location for a charity or society is under the heading of private Acts. Yes, there could well still be a need for such private Acts, but the experience has been that they have not been used greatly. However, it is important to have provision available, because there will be occasions in Northern Ireland, rare though they might be, where a charity or a society will want to approach the Assembly about promoting a private Bill that it needs to carry on its activities.

415. The Chairperson: Let me ask you about a hypothetical situation. The review of public administration will bring many changes. Is it possible that, following that, all the private and local Acts would be repealed?

416. Mr McMahon: That was a major issue at the time of the major reorganisation of local government in England and Wales in 1972. It seemed that Parliament and Government were somewhat aghast at the huge raft of local Acts that were in existence, to the extent that the perceived wisdom was that they all should be repealed and powers given to local government through public Acts alone. Now, that did not happen, but, interestingly, the Transport and Works Act 1992 removed at a stroke the need to promote private Acts in connection with various works, such as for railways, trams and canals.

417. That arrangement seems to have worked perfectly well, so how where the necessary powers obtained after the introduction of the 1992 Act? Not through the promotion of a private Act, but through ministerial orders. There is provision in our legislation for various powers to be given to local government by ministerial order. I am thinking of the Local Government (Best Value) Act (Northern Ireland) 2002, by which the recent companies legislation for local government was introduced and so on. If you are asking me whether I think that there will be a need for local Acts after the review of public administration, my answer is that I do not really feel that there is a great need for local Acts at present.

418. The Chairperson: That is because you did not get your local Act through. [Laughter.]

419. Mr McMahon: The wholesale transfer of functions and powers away from local government in 1973 really ended any need for local legislation for local government. If local government had substantive powers, there might be a case for local legislation. However, I am not convinced.

420. Mr Brolly: I am sure that you have a lot of fun with the City of Derry Airport.

421. Mr McMahon: I feel I do nothing else. [Laughter.]

422. Mr Brolly: What is the difference in the way that Derry City Council dealt with the Brooke Park situation and the runway, or runaway, situation at the City of Derry Airport?

423. Mr McMahon: First, no local Act applied in the case of the airport case, whereas one did in the case of Brooke Park. Secondly, in theory, we could have promoted a local Bill to obtain land for the airport — traditionally, local Acts were used to acquire land. However, we had the power, through a public Act, to acquire land through application for a Vesting Order to the Department for Regional Development, which we did. Therefore, a local Bill was not necessary because there were already adequate public Act provisions in place.

424. The Chairperson: Mr McMahon, your presentation is most relevant, because you have hands-on experience of private legislation. As a lawyer by profession, the city secretary, and someone with experience of trying to obtain local legislation, you are unique. The only problem is that you are still not convinced that local legislation is required. [Laughter.] Thank you very much for coming. The Committee appreciates your presentation.

425. I welcome Alan Hunter and Donald Eakin of the Law Society.

426. Mr Donald Eakin (The Law Society): I am the President of the Law Society and a solicitor in private practice. Alan Hunter is chief executive and registrar of the Law Society. I thank the Committee for inviting us to give evidence. This will undoubtedly be the first of many such interactions between the Law Society and the Assembly. We are happy to assist the Assembly when appropriate.

427. In researching and developing our proposed procedure, we have sought to ensure that: strong regard is given to due process; procedural fairness is established between the promoter and the objector; the special circumstances of any individual do not hinder their participation in the legislative process; strong regard is given to the equality and human rights implications of any private Bill; and the procedure is time- and cost-efficient.

428. Our proposed procedure for the enactment of private legislation consists of four stages, with the preliminary stage taking place prior to the introduction of a Bill to the Assembly. An important element of our proposal is that the Assembly should establish a permanent private Bills Committee, from which ad hoc subcommittees with responsibility for the scrutiny of any private Bills would be established. Such subcommittees would be established on the lodgement of a private Bill and would take the preliminary and second stage of that Bill. Subcommittees should be composed of five members of the private Bills Committee, one of whom would act as Chairperson, and all of whom would have no conflict of interest with the relevant private Bill. That Committee system is proposed as it allows the expertise of members of the permanent private Bills Committee to develop over time, while avoiding members’ scrutinising private Bills with which they have a conflict of interest.

429. We propose that, on lodging a Bill with the Assembly, the promoter be required to comply with a number of preliminary requirements. First, the promoter should provide a copy of the Bill and explanatory memorandum, both of which should be in publishable form. Secondly, the promoter should provide evidence that the Bill is exclusively private in content. Thirdly, the promoter should provide evidence that the Bill is intended to meet a genuine need of the promoter, and that a private Bill is the most appropriate mechanism available to meet that need. Fourthly, the promoter should provide evidence that they have carried out a consultation exercise with prospectively affected parties, and that they have paid due regard to the views expressed by those concerned.

430. Fifthly, the promoter should provide evidence that they have given adequate consideration to any equality or human rights implications of the proposed Bill. The promoter should also provide a declaration from the Speaker of the Assembly that the proposed Bill is within the Assembly’s legislative competence, including that the Bill is compliant with the European Convention on Human Rights and is non-discriminatory.

431. Finally, the promoter should provide the Assembly with evidence of how he intends to notify prospectively affected parties of their right to object and how they can do so. From the date of the Bill’s lodgement, objectors should have 60 days in which to lodge an objection.

432. Once a subcommittee has been formed, it will meet to consider whether the promoter has complied with all the preliminary requirements that I have just discussed. If the subcommittee finds that the promoter has complied with all preliminary requirements, it will produce a report that explains the basis of its determination and the Chairperson will submit the Bill to the Speaker for its introduction to the Assembly. If the subcommittee determines that the promoter has not complied with all preliminary requirements, it will produce a report to explain such and will table it before the Assembly for approval.

433. The first stage of the Law Society’s proposed procedure includes the introduction of the Bill to the Assembly by the subcommittee’s Chairperson and a debate on the general principles of the Bill. One week prior to its introduction, copies of the Bill, its explanatory and financial memorandum, and the subcommittee’s preliminary report should be made available to all MLAs. The subcommittee’s preliminary report will provide background information to facilitate informed debate on the Bill’s general principles. On its introduction to the Assembly, the Bill’s content will be explained by the subcommittee’s Chairperson, who will table a motion that the Bill proceed to second stage. MLAs who are opposed to the Bill’s advancement may move an amendment to the motion stating reasons why the Bill should not proceed.

434. At second stage, the subcommittee will, first, review all evidence that is submitted with regard to the Bill. That includes evidence that is provided by the promoter, all objections lodged, and any further submissions. In order to assist it in its deliberations, the subcommittee may appoint a special adviser. The subcommittee should hold oral evidence sessions in order to assist it to review a private Bill. It is recommended that the subcommittee be required to invite the promoter to provide oral evidence. It is also recommended that the subcommittee should group similar objectors and invite a range of their representatives, to ensure that it fully understands the nature of all objections that are lodged against the Bill.

435. Both promoter and objector should be allowed to be legally represented and to cross-examine one another. It is also proposed that they both be permitted to call witnesses. However, the subcommittee should have the discretion to refuse to hear a witness, to be exercised when considered necessary. During oral evidence sessions, the subcommittee should pay particular regard to ensuring procedural fairness between the promoter and the objector. The subcommittee should also pay due regard to the special circumstances of any objector which may inhibit his or her participation in the subcommittee’s proposed proceedings; for instance, when special circumstances, such as an objector’s age or disability, would make the prospect of cross-examination a disincentive to his or her participation, subcommittees should direct that that person’s cross-examination be through the Chairperson.

436. When the subcommittee has gathered all appropriate evidence with reference to the interests of the promoter, the objectors and the general public, it will review the Bill clause by clause. It is proposed that the subcommittee be permitted to amend the Bill as it sees fit. When the subcommittee has decided on an amended version of the Bill, it will ensure that copies of the amended Bill and the revised explanatory and financial memorandum are deposited with the Assembly Clerk in time for inclusion on a Notice Paper that is circulated at least one week before the day that is appointed for the Bill’s third stage.

437. Prior to the Bill’s third stage, it is recommended that individual MLAs be permitted to propose further amendments to the amended version of the Bill. At the third stage, it is recommended that the Chairperson of the subcommittee reintroduce the amended version of the Bill to the Assembly. The Committee on Procedures may wish to consider whether it would be prudent to oblige the chairperson to provide reasons for the amendments made to the Bill by the subcommittee and to demonstrate how it has taken on board the views of the promoter and the objectors, along with the general public interest.

438. Once the Bill has been reintroduced, it is recommended that any further amendments proposed to the Bill be considered and voted upon. When all such amendments have been considered and voted upon, the Assembly should debate the motion that the Bill do now pass. The result of that vote will determine whether the Bill succeeds or fails. When a private Bill has been passed by the Assembly, it should be subject to the same requirements as a public Bill under Standing Order 38.

439. In our proposed procedure, we have sought to pay due regard to a human rights concerns and to ensuring procedural fairness for both promoter and objector. The main concern of the Law Society is to ensure the participation of individuals who, due to special circumstances such as age or disability, are prevented from participating fully in the process of private legislation. I stress the need to ensure that such individuals are adequately informed of their rights to raise an objection; that adequate provision is made to assist such individuals in raising their objections; and that procedures ensure that such individuals are able to participate equally in the subcommittee’s evidence proceedings.

440. The Chairperson: Thank you. Perhaps I could kick off with an old favourite: who do you see as the person who should carry the costs of the legislation, the promoter or the objectors?

441. Mr Eakin: Undoubtedly, the costs should be borne by the promoter.

442. The Chairperson: So if an objector wants to bring in counsel, the promoter should stand that cost?

443. Mr Eakin: Not necessarily. It is for the Assembly to direct its own procedures. However, if the legislation is appropriate for a private Bill, the onus clearly rests with the promoter. However, discretion would have to be exercised. The Assembly could not allow itself to be constrained to a rule that promoters must pay objectors come what may. A discretionary power should ensure that a balance is struck, so that frivolous or vexatious objections cannot be put in the way of a private Bill and the promoter expected to bear the cost.

444. The Chairperson: In London, parliamentary agents are used to guide the passage of a Bill. Do you agree that that is the way it should be? Could a local firm of lawyers be used, as happens in Dublin? We understand that, in Scotland, the practice is different again: any private individual who demonstrates that he or she has the competence and skills to do the job may be used. What are your views?

445. Mr Eakin: The Law Society’s view is that, because of the abolition of the Northern Ireland Parliament, we have not had such expertise locally available since the mid-1970s. Prior to that, parliamentary agents operated in Northern Ireland. They were regulated by the Law Society, and had expertise in legislation.

446. I have looked up the by-laws, passed in August 1958, with the assistance of the Chief Clerk of the Northern Ireland Parliament. The Law Society’s view is that the use of parliamentary agents is an appropriate, and probably invariable, way of proceeding in such matters. However, we would want local expertise to become available. We have discussed this previously at Stormont: much of this work involves London solicitors leapfrogging in with local assistance. We do not want that to become the predetermined way of proceeding. We want local firms, over a period of time, to gain expertise and be able to work on their own as recognised parliamentary agents. The society has not discussed this, because it has not been necessary for over 30 years, but we would be keen to regulate the activities of such agents, and we hope that the expertise becomes available.

447. My understanding is that, in Scotland, there is no necessity to have a parliamentary agent, or anyone in particular. That would evolve over a period of time. I expect that initially the expertise required for drafting would necessitate involvement at parliamentary agent level, and that that would engage local expertise through a solicitor’s practice. That would eventually evolve into fully-blown local parliamentary agents.

448. Mr Brolly: I am going to harp on about an issue that I raised earlier. Of all the groups that have spoken today, the Law Society has been the strongest on the need to look after the objectors and to ensure that, for example, if they do not have enough money because they are disabled or otherwise incapacitated, that does not constrain them from making their case against a promoter. The Chairman asked whether the promoter should stand the cost of legal advice for genuine objectors. You said that that should not happen. Am I right in saying that, in making a petition, the objector is not entitled to legal aid?

449. Mr Eakin: That is a matter for the Legal Services Commission, but the Law Society’s experience is that the areas for availability of legal aid are diminishing all the time. It is unlikely that it would be available for objecting to private legislation.

450. Mr Brolly: In that case, who would pay for an objector to have legal advice equal to that which is available to the promoter? The objector should be entitled to that.

451. Mr Eakin: In essence, it is a matter for the Assembly to set its own procedural rules. However, the promoter is under an obligation to fund the application, get it up and running, pay the parliamentary agents and get it on to the floor of the Assembly. The Assembly could agree to assist objectors through its procedures and backup, perhaps through the Office of the Legislative Draftsman.

452. I did not say that the promoter should not pay for legal advice for objectors. In fact, I said that the Assembly should want to reserve its position on that. It is inconceivable in any situation that a promoter would pay for vexatious, frivolous or unmerited objections.

453. Mr Brolly: In the event of the introduction of legislation that would allow the Assembly to pay the objector, would it not be invidious if the Assembly did not also pay for the promoter?

454. Mr Eakin: The nature of private legislation is that, under our procedure, the promoter sets down the explanatory memorandum, drafts the legislation, explains his objectives and consults to find out the wider impact of the legislation. All of those costs are borne by the promoter. I am reluctant to say that, in every situation, the promoter should pay all the costs. The promoter would pay for introducing the Bill, appointing a special adviser and obtaining legal opinion. Of course, one can have two or three legal opinions, so the extent to which any promoter should have to go down that road is a balancing act. Our proposals are proportionate in determining where the costs start off and what they allow. That would cover most reasonable situations.

455. The Chairperson: You said that legal aid would not be available to objectors —

456. Mr Eakin: I do not think that it would be.

457. The Chairperson: Do you see the potential danger if the Assembly were to pay for legal advice? That might be legal aid through the back door.

458. Mr Eakin: I would be more than happy for the Assembly to petition the Legal Services Commission to say that legal aid should be available. However, the scope for legal aid to be available for advice under the green form scheme is limited. There is a small and limited budget for that. It is hard to see how the Assembly could justify paying for anything other than a basic representative backup for objectors to private legislation.

459. It goes back to Mr Brolly’s point about the onus being placed on the promoter of the private Bill. If that is weighted properly it should provide the Assembly, at that crucial stage, with the objects of the legislation, and the explanatory memorandum. The special adviser would also be available to pinpoint where the legislation would have an impact on people who might have objections. There is, even, a proportionality aspect with regard to human rights compatibility. At the end of the day this is private legislation, so there has to be a heavy onus on the promoter to put it through.

460. Mr Storey: Would it be the role of the special adviser to give advice solely to the Committee about the cases being presented by both the promoter and the objectors? Would he give overall, comprehensive advice? Would you suggest that that adviser be a legal person?

461. You said that there could be a second or third legal opinion. I take the point that this is about private Bills. However, could you get into a situation in which, while there is no structure for an objector to receive legal aid, that system could be used to receive legal opinion, de facto, by the Committee? Where do you draw the line between obtaining a legal opinion on a particular issue raised by one objector and one raised by 40 other objectors? If there were such a volume of objectors, how would you determine that?

462. You referred in your submission to stringent requirements placed on a promoter to ensure that they have carried out a consultation. What level of consultation should take place? The National Trust, which made a presentation this afternoon, carried out a consultation on an issue relating to Northern Ireland, but it seemed to have only been advertised in London. We were not convinced that that was a very good mechanism for consultation.

463. Mr Alan Hunter (The Law Society): We do not necessarily always see the expert adviser as being a legal person. We see that person as someone who is an expert in the particular subject matter of the private Bill under consideration. That person would provide expertise, research and knowledge in that context for the benefit of the Assembly Committee, in order that the Committee would be best informed and have some independent input, rather than hearing simply from the promoter and the objector. In some cases that might very well be a legally-qualified person, but in many cases it may not.

464. The precedent that we look to is the Northern Ireland Affairs Committee and some of the other parliamentary Committees at Westminster and in the Dáil, where expert advisers are appointed to make recommendations on the particular technical aspects of any item. Sometimes that would be a legal person, but we do not envisage that it would always be so. When it comes to consultation, it is important that the information provided be relevant and that the consultation take place with the relevant parties. We would suggest that the relevant parties were identified properly at the outset.

465. Mr Storey: The consultations that take place around most public legislation involve a list of consultees. One sometimes has to ask whether all the relevant people are being consulted. That is a real issue of concern. Invariably, some people are missed. With private legislation, there is an onus to consult the appropriate people.

466. Mr Eakin: The National Trust’s private Bill probably involved their having an advert in ‘The London Gazette’. That would be a necessity, given the effect that such legislation would have, but it would have been equally necessary to advertise in ‘The Belfast Gazette.’ However, given the circulation of that publication, I am slightly sceptical about the benefit that that would have had in terms of potential objectors coming forward.

467. Mr Storey: I was going to say that.

468. Mr Eakin: We are talking about a 12-week consultation process. It is easy for us to be bland and say that there has to be appropriate consultation. However, appropriate consultation would clearly necessitate local advertising, which would enable the clear identification of focus bodies that would be affected by any proposed legislation. The Assembly will have to develop rules on that matter.

469. Mr Storey: Obviously, there is the issue of how the Assembly will assess whether any consultation is adequate and appropriate. If stringent requirements are set, they need to be clearly defined. There also has to be an objective way of measuring the delivery of the consultation against what was presented.

470. Mr Eakin: Obviously, not having had a devolved Administration for a long time, we are all in new territory. We considered the Scottish example, and thought that it was over-elaborate. Therefore, we have tried to foreshorten the stages of the passage of a private Bill. At the same time, we want to be proportionate regarding the achievement of everyone’s objectives.

471. The Chairperson: Do you think that criteria should be set for those wishing to object? If so, should the private Bill Committee that you talked about assess such criteria?

472. Mr Eakin: The subcommittee that takes the evidence should make an assessment, as it will have to compile a report for the Assembly in order to get the Bill to the next stage. Therefore, the subcommittee will have had to assess the balance between the promoter and the basis of any objections.

473. The Chairperson: How would you deal with what could be deemed as frivolous objections?

474. Mr Eakin: The Law Society has a fair amount of expertise in that. [Laughter.]

475. To be blunt, under human rights legislation, everyone has to be given the opportunity to have their say, after which an assessment is made. That sounds a bit bland, but that is the procedure that has to be followed.

476. The Chairperson: Thank you. We appreciate your taking the time to attend today.

Appendix 3

Written Submissions

Written Evidence from
the Equality Commission

submission from equality commission

submission from equality commission

Written Evidence from
the Department of the Environment

Central Management Branch
10-18 Clarence Court
BELFAST
BT2 8GB

Ms Patricia Casey
Clerk to the Environment Committee
Northern Ireland Assembly
Parliament Buildings
Stormont
Belfast BT4 3XX

Telephone:
Facsimile:
Email:
Your reference:
Our reference:
Date:

028 90 5 40855
028 90 5 41169
una.downey@doeni.gov.uk


18 December 2007

Dear Patricia,

I refer to your request for further information following meeting on 29 November 2007.

Background:

The Committee for the Environment received a letter from Stella McArdle, Clerk, Committee on Procedures, regarding an inquiry into Private legislation and requesting a written submission from the Department of the Environment on issues raised in the letter and on its terms of reference for the inquiry.

In Ms McArdle’s note to the Committee dated 21 November 2007, she advised that Committee on Procedures is aware that the Local Government Act (Northern Ireland) 1972 (the 1972 Act) makes provision for district councils to promote private Bills and sought the Department’s comments on some associated matters.

For information, sections 101 and 102 of the 1972 Act contain provision concerning the power of district councils to promote or oppose local or personal Bills and the procedures that are to be followed. Details of those provisions are included as an Annex to this submission.

Current Position

The Department’s Local Government Policy Division have advised that they have no information in relation to:-

the likelihood of councils promoting private Bills in the near future or after the Review of Public Administration; or

the type of private Bill which may be generated by councils.

Such information could only be obtained if officials conducted a consultation exercise involving all councils.

Departmental officials are not aware of any council having used the section 101 power to promote or oppose a local or personal Bill since the 1972 Act came into operation in 1973. I understand, however, that shortly before the return to Devolution, Derry City Council approached the Department to seek guidance on the procedures it should follow if it were to promote a local Bill. The proposed Bill would have enabled the Council to dispose of a portion of land to the Department of Health, Social Services and Public Safety for use as a Health Centre (all of the land in question had been gifted to the Council by means of a local Act for use as a public park). The Council subsequently decided not to proceed with the matter.

The Department has no comments to make on the Committee’s Terms of Reference.

I trust this information is of assistance, should you require anything further please contact me directly.

Yours sincerely,

Una Downey
DALO

[By Email]

Annex

Sections 101 and 102 of the Local Government Act (Northern Ireland) 1972

Local and personal Bills
Power to promote or oppose local or personal Bills

101. Subject to the provisions of this Act, where a council is satisfied that it is expedient to promote or oppose any local or personal Bill in Parliament, the council may promote or oppose the Bill and may defray the expenses incurred in so doing.

Sanction of council to promotion of, or opposition to, Bills

102.—

(1) A council shall not promote or oppose a Bill under the powers conferred by this Act otherwise than in pursuance of a special resolution of the council.

(2) In the case of the promotion of a Bill, the resolution shall be published in at least two newspapers circulating in the district of the council and shall be submitted for the approval of the Ministry, and the council shall not proceed with the promotion of the Bill if the Ministry notifies the council that the resolution has not received that approval.

(3) The approval of the Ministry shall not be given until the expiration of seven days after the publication of the resolution, and in the meantime any local elector for the district of the council may serve notice on the Ministry of his objection to the resolution.

(4) A resolution to promote a Bill must be confirmed by a special resolution of the council as soon as practicable after the expiration of fourteen days from the date when the Bill has been deposited in Parliament, and, if it is not so confirmed, the council shall take all necessary steps to withdraw the Bill.

Written Evidence from
the Law Society

10th January 2008

Stella McArdle
Room 430
Parliament Buildings
Beflast
BT4 3XX

Dear Mrs McArdle

Re: Committee on Procedures Inquiry into Private Legislation

I enclose for your attention the Law Society of Northern Ireland’s written submission to the Committee on Procedures of the Northern Ireland Assembly inquiry into Private Legislation. If there is any matter arising please do not hesitate to contact me.

Yours sincerely

Alan Hunter

ALAN HUNTER
Chief Executive

Law Society Logo

Northern Ireland Assembly
Committee on Procedures’ Inquiry
into Private Legislation

Written Submission of the
Law Society of Northern Ireland

40 Linenhall Street
Belfast BT2 8BA
Tel: 02890 231614
ax: 02890 232606
mail: info@lawsoc-ni.org
Website: www.lawsoc-ni.org

Law Society Crest

The Law Society of Northern Ireland

Inquiry into Private Legislation

Issue

1. The Committee on Procedures of the Northern Ireland Assembly has invited the views of Law Society of Northern Ireland on an appropriate procedure to be adopted by the Assembly for the enactment of Private Legislation. This submission sets out the recommendations of the Law Society.

The Law Society of Northern Ireland

2. The Law Society is the professional body established by Royal Charter and invested with statutory functions in relation to solicitors (primarily under the Solicitors (NI) Order 1976, as amended). The aims of the Law Society are to regulate and represent, responsibly and in the public interest, the solicitors’ profession in Northern Ireland.

Background

3. A Private Bill is a Bill introduced for the purposes of obtaining for an individual, body corporate or an unincorporated association of persons (“the promoter”) particular powers, exemptions or benefits in excess of, or in conflict with the general law, and includes a Bill relating to the estate, property, status or style, or otherwise relating to the personal affairs of the Promoter.

4. Private Bills are distinct in nature from Public Bills in a number of ways:

a. Private Bills affect a small number of interests in a localised area;

b. Private Bills cannot propose to amend or repeal a Public Act;

c. Private Bills do not affect public policy; and

d. Private Bills emerge from outside of the structures of the Executive and the Legislature.

5. The nature of Private Bills requires a distinct procedure for their enactment. Procedures must be put in place to ensure fair and equal participation by the Promoter and any Objectors in the legislative process. As Private Bills are concerned only with a small number of individuals rather than the general public, the legislature cannot commit as significant an amount of time and resource to the enactment of Private Bills as it does to the enactment of Public Bills.

The Northern Ireland Assembly

6. As well as having due regard to the distinct nature of Private Bills, this submission has regard also to the particular characteristics of the Northern Ireland Assembly. Some of the particular characteristics which we have considered are:

a. the limits upon the legislative competence of the Assembly;

b. the need to ensure due consideration to human rights and equality issues;

c. the committee structure of the Assembly which requires permanent Departmental Committees to scrutinise Public Bills at the Committee Stage;

d. the various voting procedures of the Assembly.

Recommended Procedure and Commentary

Appendix A sets out a summary of our recommended procedure.

Appendix B provides a summary of obligations we believe should be placed upon promoters and objectors.

Appendix C provides a detailed commentary on our recommendations which are structured to address the questions raised by the Committee.

Law Society of Northern Ireland
January 2008

Law Society Crest

Appendix A : Law Society of Northern Ireland’s Recommended Procedure to enact Private Legislation

1. Prior to Introduction

The promoter should be required to:-

2. Preliminary Stage

On lodgement of a Bill with the Clerk of the Assembly, the promoter should be required to produce:-

The Assembly should establish a Standing Private Bill Committee, from which a Sub-Committee of 5 members should be drawn, with responsibility for taking the Preliminary & Committee stage of a Private Bill. At the Preliminary Stage the Sub-Committee should ensure compliance with the above requirements.

From lodgement of the Bill objectors have sixty days to lodge objections. Once lodged the promoter should be required to notify prospectively affected parties.

3. First Stage

4. Second Stage – Committee Stage

The designated Sub-Committee should take the Committee Stage of a Bill.

The Sub-Committee should be required to:

Promoters and objectors should have the right to be legally represented (at the discretion of the Chair, promoters and objectors may cross examine one another and call witnesses).

5. Third Stage – Re-introduction and Vote

Prior to re-introduction all MLAs may propose further amendments to the Bill as amended by the Private Bill Committee.

All Private Bills should be re-introduced by the Chair of the Sub-Committee responsible for that Bill. The Chair will be obliged to state reasons for any amendments made by the Committee.

Once re-introduced further amendments proposed to the Bill should be considered and voted upon. Once all further amendments have been considered, the motion “That the Bill do now pass” shall be debated and voted upon the result of which shall determine whether the Bill succeeds or fails.

6. Further Consideration

Once passed a Private Bill should be subject to the same requirements as a Public Bill under Standing Order 38.

Appendix B : Obligations Upon promoters and objectors

1. Obligations Upon a promoter

The obligations upon a promoter should be: -

2. Obligations Upon the Objectors

The obligations upon the objectors should be: -

Appendix C : Commentary on the Law Society of Northern Ireland’s Recommendations

1. A public bill is introduced by a Minister or a Member of the Assembly – how should a private bill be introduced and moved through its stages?

1.1 It is recommended that the Assembly establish a Standing Private Bill Committee with a membership of ten. From this Committee a Sub-Committee should be established with responsibility firstly for ensuring promoters and their Bills meet the preliminary criteria (described below) and secondly for taking the Second Stage of all Private Bills. Such a Sub-Committee would have a membership of five. Members of the Full Committee including the Chair who are considered to have a conflict of interest with a Bill, as defined by Paragraph 50 of the Members Code of Conduct would be ineligible for membership of any particular Sub-Committee.

1.2 It is recommended that the Chairperson of the appropriate Sub-Committee of the Private Bill Committee be responsible for introducing the Private Bill to the Assembly and for moving the Bill through its stages. The Chairperson is not to be responsible for representing the interests of the promoter but for ensuring that the Assembly and its membership are adequately informed of the purpose and content of the Private Bill and the implications of any amendments to it.

2. What steps should the Assembly expect that the promoter of a private bill has taken to ensure that full and detailed consultation has taken place with those individuals and / or organisations affected by the private bill?

2.1 The Assembly will wish to establish guidelines identifying prospectively affected individuals whom promoters are obliged to consult with on a proposal. For instance individuals who own or hold an interest in land that may be acquired or used compulsorily as a result of any Private Bill being enacted should be consulted with. On lodging a Private Bill with the Assembly the promoter would then be required to produce evidence that he/she has engaged in a constructive and meaningful consultation with affected parties. This may be evidenced through the production of evidence of how the promoter has taken account of the views of all affected parties in the final proposal he/she wishes to introduce to the Assembly. The promoter may also be required to provide minutes of any oral consultations he/she has held with affected parties along with any written submissions affected parties have made to the promoter.

3. A public bill has six stages to go through before it is passed by the Assembly. What stages should there be for a private bill? What time should be allowed between the stages?

3.1 It is recommended that the Assembly adopt a three stage legislative

procedure, with all Private Bills being required to meet certain preliminary requirements before being introduced to the Assembly.

3.2 At Preliminary Stage the Bill, its accompanying documents and the

activities of the promoter in developing the policy underpinning the Bill, including consideration of equality and human rights implications and his/her actions in consulting affected parties would be considered by a Sub Committee of the Private Bill Committee of the Assembly. To ensure compliance with preliminary requirements, accompanying documents should include a statement from the Speaker of the Assembly that the Bill is within the legislative competence of the Assembly and evidence that the promoter has complied with the requirements described above. The Sub-Committee should produce a report to be tabled to the Assembly of its determinations. Once a Bill has been lodged with the Assembly objections against the Bill may be lodged. The period within which objections may be lodged should run for sixty days after the lodgement of a Private Bill (It is recommended the Bill not be introduced until this period elapses). If the Bill satisfies all preliminary requirements it will then be timetabled for introduction to the Assembly.

3.3 The First Stage includes the Bill’s introduction to the Assembly and a debate on the general principles of the Bill. Prior to its introduction copies of the Bill and its Explanatory Memorandum should be made available to all MLAs at least one week in advance of the Bill’s introduction. The Chair of the Sub-Committee responsible for the Bill should table a report to the Assembly explaining that and how the Bill has satisfied the preliminary requirements of a Private Bill. The purpose of First Stage is to determine whether there is sufficient support to give effect to the general principles of the Bill. A debate should take place on the general principles of the Bill followed by a vote on a motion that the Bill proceed to Second Stage, MLAs opposed to the Bill may move an amendment to the motion stating reasons for the Bill not to proceed.

3.4 The Second Stage is the Committee Stage. Here the Private Bill Committee’s Sub-Committee will firstly review all evidence submitted in relation to the Bill. This includes evidence provided by the promoter and all objections lodged. The Sub-Committee may consult with affected parties as they see fit and may ask Government Departments, Committees of the Assembly and any other parties for their views upon the Bill. It is recommended at the Second Stage that the Committee have the discretion to appoint Special Advisers and call expert witnesses as required to ensure the Committee are fully informed of the implications of the promoter’s Bill. Once the Sub-Committee has gathered all appropriate evidence, with reference to the interests of the promoter, the objectors and the general public interest, it will review the Bill clause by clause. The Sub-Committee may make amendments to the Bill as it sees fit. The Sub-Committee may wish to consult with the promoter and objectors regarding any proposed amendments. Once the Sub-Committee has finalised an amended version of the Bill, the Sub-Committee should ensure copies of the Bill and Explanatory Memorandum as amended are deposited with the Assembly Clerk in time for inclusion on a Notice Paper circulated at least one week before the day appointed for the Third Stage. This is to ensure all individual MLAs are adequately informed of amendments the Sub-Committee has made to the Bill to enable other MLAs to propose amendments for consideration at the Third Stage.

3.4 Prior to the Third Stage of the Bill, it is recommended that individual

MLAs be permitted to lodge amendments to the Bill. These should be lodged with the Assembly Clerk in time for inclusion on a Notice Paper circulated on a day before the appointed day for the Bill’s Third Stage. Any such amendments would be considered during the Third Stage of the Bill. At the Third Stage it is recommended that the Chairperson of the Sub-Committee re-introduce the Bill as amended by the Sub-Committee to the Assembly. The Procedures Committee may wish to consider whether it would be prudent to oblige the Chairperson to provide reasons for amendments which the Sub - Committee has made at this stage and to demonstrate how the Committee have attempted to take on board the views of the promoter, objectors and the general public. Once the Chairperson has re-introduced the Bill and fulfilled this obligation, it is recommended that any amendments lodged by any individual MLA to the Bill as amended by the Sub–Committee then be considered in the order in which the relevant clauses and schedules stand in the Bill. A debate and a vote would then take place on each proposed amendment. It is recommended that once amendments have been considered and voted upon a debate upon the motion “That the Bill do now pass”, takes place and be voted upon.

Commentary

3.5 The above recommended procedure is designed to ensure that Private

Bills are afforded sufficient public scrutiny whilst not consuming a disproportionate amount of the Assembly’s time. The First Stage is an amalgamation of the First and Second Reading of a Public Bill. The Second Stage sees the Sub-Committee undertaking the same role of a Departmental Committee in taking the Committee Stage of a Public Bill i.e, gathering evidence and opinions. However it is recommended at the Second Stage the Sub-Committee also be required to carry out a similar role as the Assembly would in the Consideration Stage of a Public Bill, reviewing the Bill clause by clause and making amendments. Finally the Third Stage is very much an amalgamation of the Further Consideration and Final Stage of a Public Bill.

4. Unlike Public Bills, the Assembly and Members will have no prior knowledge or consultation on a Private Bill. Would it be appropriate therefore for the stage between introduction and second stage to include a period whereby the committee could carry out a preliminary consideration of the bill to ascertain if it meets the special requirements of a Private Bill and then report to the Assembly?

a. What criteria should a private bill meet i.e. should the promoter provide proof of need of the bill to the committee at this stage?

b. Should the Committee seek the views of those affected by the private bill at this stage? And if so, how and in what format should this be done?

4.1 It is recommended that Private Bills must satisfy the following criteria before they proceed to the First Stage of the suggested Legislative Procedure:

(i) A Private Bill must be in a publishable form and be accompanied by an Explanatory Memorandum

(ii) Evidence should be provided that a Private Bill is the most objectively justifiable mechanism for meeting a legitimate need of the promoters. This should include evidence from the promoter as to how the current law is insufficient to meet this need.

(iii) Evidence that the Bill is in fact exclusively private in nature. Shown by evidence that:

a. the Bill does not propose to amend or repeal any Public Act;

b. the Bill does not affect public policy;

c. the multiplicity of interest and magnitude of the area involved does not call for public legislation.

(iv) The promoter must also provide a statement by the Speaker of the Assembly declaring that the Bill is within the legislative competency of the Assembly.

(v) The promoter should be obliged to show that he/she has given adequate consideration to any equality and human rights implications of the proposal.

4.2 It recommended that at this stage the promoter also be required to produce evidence that he/she has engaged in constructive and meaningful consultation with affected parties. At this stage the promoter may also be required to produce evidence of how he/she intend to notify prospectively affected parties as to their right to object. It is recommended that stringent requirements be placed upon a promoter to ensure that prospectively affected parties have been effectively notified of the promoter’s intentions and of their right to object to his/her intentions, once the Bill has been lodged. Notification may be through a recorded delivery letter to specifically affected parties, notification to the general public may be through public notices and effective advertising of the promoter’s intention and of affected parties right to object. This should clearly state the deadline for objections and provide contact details of the Assembly.

4.3 It is recommended that at this stage the Sub-Committee ought not be obliged to actively seek the views of those affected, as they shall be obliged to do so at the Second Stage. The Sub-Committee at this stage may wish to consider if special characteristics of prospectively affected parties would create barriers to their participation in the Private Legislative Process. The Sub-Committee may also wish to contact consulted parties to ensure the consultation engaged in by the promoter was meaningful.

4.4 It is recommended that the Sub-Committee be required to produce a report on their determinations to be tabled before the Assembly. If the Sub Committee determine that the Bill meets the preliminary requirements of a Private Bill this report should be laid before the Assembly at the Bill’s First Stage. If the Sub-Committee determine that the Bill does not meet the preliminary requirements of a Private Bill time should be set aside for the Assembly to consider the report. If the Assembly disapprove of the Committee’s determinations they may overrule the Sub-Committee.

4.5 It is recommended at this Stage, as at the Committee Stage that the Sub-Committee has a discretionary power to appoint Special Advisers and to call expert witnesses as necessary to assist in their deliberations.

5. The second stage debate is on the general principles of the Bill – who will be responsible for outlining the main features of the Bill and represent the promoters viewpoint?

5.1 It is proposed that the Chairperson of the Sub-Committee outline the main features of the Private Bill. He/She should also be responsible for providing reasons for the Sub-Committee’s determinations at the preliminary stage. It is considered that the promoter be required to provide the Chairperson with a written statement as to why the Bill should be enacted, this statement should be read by the Chairperson of the Sub-Committee to the Assembly, once the Bill’s main features have been outlined. The Chairperson would have no role beyond this. Alternatively the Assembly could permit any MLA who wishes to speak on behalf of the promoter to do so.

6. Who, how and when can an objector lodge an objection to the private bill i.e. can an objection be lodged by post or email? When can objections no longer be accepted? Should there be a fee for the lodging of objections? Are there any criteria that an objection should meet?

6.1 It is recommended that all individuals and organisations with an interest likely to be adversely affected by the proposed Bill should have a right to object. It is recommended the Assembly require an objector to set out clearly in their objection how their interest would be adversely affected if the proposed Bill were to be enacted.

6.2 It is also recommended that objectors be required to ensure their written objection sets out clearly the nature of their objection and to which aspects of the Bill it relates. It is recommended that objections may be lodged in person, by ordinary post or by e-mail.

7. Should a Private Bill be referred to a specially designated Private Bill Committee or would it be more appropriate for it to be referred to the most relevant (in terms of subject matter) statutory departmental committee.

7.1 See paragraph 1.1

7.2 We have not recommended that responsibility for scrutiny of Private Bills be referred to the most relevant statutory Departmental Committee. We consider that the potential difficulties of conflicts of interest would outweigh the benefits. Furthermore it is likely that the subject matter of the vast majority of Private Bills would be most relevant to the Committee for the Department of Regional Development, which may result in overburdening that particular Committee.

7.3 This option is recommended to encourage the expertise of the membership of the Private Bill Committee in the scrutiny and procedure of Private Legislation to be developed through the accumulation of experience.

8. It is common practice elsewhere to allow promoters and objectors to be legally represented during the public evidence sessions of private bills committees. The role of the private bill committee (whether an existing statutory committee or a designated private bill committee) will be to adjudicate between the promoter and objectors – if there are any objections.
a. Should the promoter and objector(s) be allowed legal representation during the evidence gathering sessions of the private bill committee?
b. Should the private bill committee allow cross examination of objectors by the promoter and vice versa? Or should this be done through the chair?
c. How far should the promoter and objectors be allowed to go to prove their case i.e. should they be allowed to call for witnesses and show evidence?
d. Should the promoter and objector be allowed to use Counsel for the cross examination? Practice elsewhere indicated that objectors rarely bring Counsel with them to the committee. Are there any equality aspects that the Assembly should take note of in this situation?
e. What should be the role of the committee chairperson in such a situation?

8.1 (a) It is recommended that the promoter and the objector should both be afforded the right to legal representation. Legal representation would assist the promoter and objector(s) in articulating their arguments and ensure the evidence that they present is clear and succinct. Furthermore for members of the general public wishing to object, the prospect of appearing before an Assembly Committee may be daunting. To deny objector(s) the assistance of legal representation might therefore deter their participation in the legislative process. The Assembly will also wish to consider the provision of legal representation for objectors on low income.

8.2 (b) It is recommended that objectors and promoters be afforded the right to cross-examine one another. Cross-Examination is an important mechanism for testing evidence and affords the opposing party the ability to challenge any statement of fact in dispute. However it is recommended that this right not be absolute. At its discretion the Sub-Committee may require the objector or promoter to conduct cross-examination through the chair. This discretion should be exercised with regard to any special circumstances of an objector such as age or disability, which would make the prospect of cross-examination a disincentive for participation in the oral proceedings of the Sub-Committee.

8.3 (c) It is recommended that promoters and objectors be permitted to call witnesses. Allowing the calling of witnesses will help ensure that the Sub-Committee receives a broad insight into the implications of the Bill. Furthermore objectors may call as witnesses affected individuals who due to special circumstances were unable to raise objection through the standard procedure.

8.4 (d) The use of experienced advocates to undertake cross-examination should be permitted. The Law Society considers that solicitors are sufficiently skilled to undertake this work.

8.5 An issue over equality of arms between the parties may well arise. The exercise of the right to use an experienced advocate to put forward their position and to undertake cross-examination is dependent upon the availability of financial resources of the party. The Assembly will wish to consider what provisions should be introduced to ensure access to advocates for individuals on low incomes, to ensure equality of arms.

9. What should be the role of the Private Bill Committee if there are no objectors to the bills?

9.1 It is recommended that if no objections are lodged, the Sub-Committee’s role should be to ensure the protection of any identified interest and the public interest.

10. It is not normal practice for Assembly committees to make amendments in committee – an Assembly Committee reports to the Assembly with any proposals it may have for amendments to a bill. It is the Assembly which approves the amendments. This practice may prove problematic for private bills as it maybe difficult for the promoter to resist unwelcome amendments or to seek to support an amendment. To address this aspect a number of options open to the Assembly including allowing a private bill committee to make amendments; alternatively the Consideration stage may be limited to only amendments proposed by the private bill committee or the promoter but this would restrict the ability of MLAs to make amendments. Which of the options do you feel would be the best procedure for the Assembly or is there another option you feel would be more appropriate?

10.1 We recommend that the Sub-Committee of the Private Bill Committee be permitted to make amendments to any Private Bill. This option is preferred as it will enable the members of the Private Bill Committee to consult with objectors and promoters as to the effects of any proposed amendments. It is recommended that the Sub-Committee be obligated to ensure copies of the Bill as amended by the Sub-Committee are made available to all MLAs along with an amended Explanatory Memorandum. Furthermore it is recommended the Chairperson of the Sub-Committee be responsible for the introduction of the Bill as amended to the Assembly and be required to give reasons for amendments made.

11. Private Bill Committees elsewhere tend to be formed of a small number of members. If the Assembly decided on a designated private bill committee, how many members should serve on it and what rules should cover the operation and procedures of the committee.

11.1 At paragraph 1.1 we discuss membership of the Committee, and at paragraphs 8.1-8.4 we discuss the procedures of the Committee

12. It is expected that the private bill promoter will have to meet certain costs associated with the passage of a private bill through the Assembly. Costs to be charged to the promoter could cover items such as staff time and printing cost. What other costs do you think could be included? Do you think the promoter should also pay a one off fee?

12.1 It is recommended that the promoter bear all reasonable costs in relation to the Private Bill. In calculating reasonable costs the Assembly should take into account any economic benefit the promoter is likely to receive as a result of the Bill’s enactment, when relevant.

13. Should charitable organisations promoting a Private Bill have a reduced rate?

13.1 We recommend charitable organisations should have a reduced rate.

14. It is anticipated that those wishing to object to the Private Bill should also be charged a fee. In your opinion what level of fee is fair and equitable?

14.1 It is recommended that any fee charged to objectors be minimal. It is considered the levying of any substantial fee would act as a barrier to participation in the legislative process.

Letter from Alastair Lewis

Written Evidence from
the Society of Parliamentary Agents

16.1.08
The Society

The Society of Parliamentary Agents was formed in 1845 and represents the interests of “Roll A” Parliamentary Agents. The Society’s members promote and oppose private bills in the UK Parliament, and the Scottish Parliament. Every private bill in the UK and Scottish Parliaments in recent years has been promoted by a member of the Society. The invitation to give evidence to the Northern Ireland Assembly is greatly appreciated by the Society. The Society believes that opportunities such as this enable its members to offer their UK and Scottish experience with a view to helping to achieve improvements in the procedures.

Private Bills Generally in the UK and Scottish Parliaments

Although the Transport and Works Act 1992 and the Transport and Works (Scotland) Act 2007 have ensured that the days when there were many dozens of private bills deposited each year have now gone, there is still a significant number of private bills deposited, particularly in the UK Parliament, each year. Whilst being mainly of local concern, these Bills can be of great importance to the locality in question. The majority of private bills deposited in the UK Parliament are promoted by local authorities, and an example is the regular promotion of private legislation by London borough councils jointly.

There are currently 15 private bills before the UK Parliament, which is the largest number for some years. 11 of those Bills are promoted by local authorities (including four by the London Local Authorities), 2 are promoted by Transport for London, one by a market authority and one by a bank, the Northern Bank.

Key questions that committee on procedures seeks to explore

1. A public bill is introduced by a Minister or a Member of the Assembly – how should a private bill be introduced and moved through its stages?
Introduction of Bill

1.1 In the UK Parliament, a private bill is founded on the basis of a petition to Parliament. Standing Orders provide that petitions for private bills must be deposited on or before 27 November in each session. In practice, this means that all Bills are actually deposited on 27 November unless that happens to be a weekend. The petition itself is sealed by the promoter and a copy of the printed Bill is attached to the petition. The Bill is formally introduced in the following January.

1.2 In the Scottish Parliament, there is no petition, and the Bill can be introduced at any time. It is introduced by the promoter lodging the Bill with the Clerk, with book entries being made in the Parliament’s record of proceedings. This does not require the assistance of a Scottish Minister or an MSP.

1.3 In both cases, the introduction of the Bill is a book entry and does not require any involvement from a member. The use of a petition in the UK Parliament is purely a matter of form. The Scottish Model seems likely to be appropriate in relation to the NIA. There is no need for a petition, and because the number of private bills is likely to be relatively small, we see no reason why there should be a fixed date for the introduction of private bills. One of the historical reasons for the 27 November date in the UK Parliament was to ensure that those organisations who might be affected by private bills could be sure that they could check whether any new private legislation would have any effect on them. With Parliamentary information now so readily accessible through the internet in particular, we do not see why there should be any constraints on the date of introduction.

Moving Stages

4.5. In the UK Parliament, the question of who is responsible for moving stages of private bills depends on whether the bill in question is opposed. A good proportion of private bills in the UK Parliament is uncontroversial, and attract no opposition from members on the floor of the House in question. In such cases, the motion is moved by the Chairman of Ways and Means in the House of Commons and the Lord Chairman of Committees in the House of Lords. Neither of these individuals has any interest in the Bills themselves, but simply move the stages requisite to comply with the formalities on the floor of each House.

1.5 If a member indicates that he or she would like to speak on the debate, then the promoter of the Bill must identify a member to move the stage on its behalf. Normally, this will not present any difficulty, because promoters are likely to have identified and invited a member to do so before depositing the Bill, but there has been at least one case in the relatively recent past where a promoter found difficulties in finding a peer to move the second reading of a bill, and the bill eventually failed for that reason.

1.6 In Scotland, the private bill committee that is appointed to consider the Bill has a more active, custodial, role from the outset. The Committee Convenor takes responsibility for the formal moving of the stages of the Bill whether it is opposed or not. In opposed cases, the promoter is still required to find a member to speak in favour of the bill, but not to move the stage formally

1.7 There is advantage in requiring that the formal moving of a stage is carried out by a specified person who is not the member who speaks in favour of the Bill. This avoids the unsatisfactory position that a Bill may be delayed, or even fail, due to Members’ reluctance to sponsor a debate. How that is achieved depends to a great degree on what committee procedures are adopted by the Assembly. The Deputy Speaker might take on this responsibility if it is decided that the committee should take no part in moving the formal stages, otherwise it could be the committee chairman.

2. What steps should the Assembly expect that the promoter of a private bill has taken to ensure that full and detailed consultation has taken place with those individuals and/or organisation affected by the private bill

2.1 In the UK Parliament, there are no formal requirements relating to consultation in advance of the deposit of a Private Bill, but there are requirements relating to the advertisement of the Bill’s deposit at and around the time that it is done. This will normally include publication of two local newspaper notices and a notice in the London Gazette. Where Bills would have the effect of repealing provisions in other legislation which are specifically for the benefit of another party, then notices must be served on that party, and there are other notice requirements in Standing Orders. A local authority that promotes a private bill must pass a resolution under Section 239 of the Local Government Act 1972 and public notice is given of that meeting. None of these formal requirements amounts to what could be described as modern day consultation, and the level of consultation varies between different Bill promotions.

2.2 Similarly, in Scotland there are no prescribed requirements about the extent or form of consultation. However, the promoter is required to provide the committee with a report on the consultation that was undertaken before introduction. In turn, that in itself ensures that the promoter not only carries out a consultation exercise with the aim of ensuring that it is comprehensive enough to meet the approval of the committee, but it is also recorded in some detail.

2.3 Failure to consult properly in advance of the deposit of a Bill would inevitably lead to criticism and delay to the progress of the Bill so it is not something that is usually ignored by promoters. The majority of private bills are now promoted by public bodies, and consultation is something which they are used to doing at a local level in any event. In some cases, the effect of a private bill is unlikely to be felt by many, and in others it may be more difficult to draw appropriate consultation parameters. For example some of the more recent Private Bills promoted by local authorities in the UK Parliament have dealt with the issue of pedlars, who by their very nature are itinerant.

2.4 The Committee may also wish to consider the Transport and Works Act model[1] which requires that consultees must include the persons and bodies, specified in the Rules, who must be served with either a copy of the application or notice of it. The categories of person specified in the Transport and Works rules are of nature such that even if there were no such prescriptive requirements for Assembly Bills, a promoter might reasonably be expected to consult them. It may also be relevant that public sector promoters (who may be likely to form the majority of promoters) are always governed by the public law requirement to act reasonably.

3. A public bill has six stages to go through before it is passed by the Assembly. What stages should there be for a private bill? What time should be allowed between the stages?

3.1 The Scottish private bill procedure sets out a model for private bill procedure in a unicameral system. In many senses the UK Parliament model is irrelevant to the discussion, but there are features of it which have been adopted by Scotland and which are clearly of some importance.

3.2 The current Northern Ireland Assembly Standing Orders already provide (Standing Order 13 (1)) that Private Bills shall be subject to the same stages as those laid down for Public Bills.

3.3 In the UK Parliament, Private Bills usually go through the following stages –

House of Commons –

House of Lords -

3.4 The proceedings in the Scottish Parliament consist of the following stages –

Before the formal stages of the Bill –

Principal stages –

Each of the three stages in the Scottish procedure is broken down into more detailed stages as broadly indicated above.

3.5 The public bill procedure in the Northern Ireland Assembly is most similar in its structure to the House of Commons stages of a private bill in the UK Parliament. The second stage is akin to the Second Reading, the Committee Stage and Consideration Stage in both are similar and the only additional stage in the NIA procedure is the further consideration stage. The final stage is akin to the third reading of the Bill in the House of Commons. This flow of procedures works well in the UK Parliament and is relatively simple. The Scottish model probably appears more complex than it is in practice. Its main distinguishing feature is that it gives the Bill Committee much greater control over the procedures than does the Westminster model. We see no reason why the basic structure of the Public Bill stages in the NIA should not be followed in relation to private bills but the way the procedure works will be governed by what element of control is exercised by the Bill Committee (see later).

3.6 The paper asks for views on the amount of time that should be given between stages. One of the advantages of the private bill procedure in the UK Parliament, so far as promoters are concerned, is that it enables the promoter of the Bill to retain a significant say in the taking of the various stages of the Bill. That is particularly important when it comes to the committee stage, which in the case of an unopposed Bill will often require not only a good deal of time to prepare, but may also need a considerable care in terms of ensuring that the stage is taken at a time which is convenient to all parties, ensuring in particular that sufficient time is given for negotiations.

3.7 We have no particular views one way or the other on the length of time between first stage and second stage, but we would recommend the promoter of the Bill is given the opportunity to have some input as regards the date on which the committee stage is taken. It may well be that in some cases the promoter would wish to progress to the committee stage without any delay, particularly if there are few or no objections. In other cases the promoter may need a good number of weeks in order to ensure that everything is prepared properly. Objectors themselves may also require significant time to prepare their cases in opposition to the Bill. It is worth also considering the role, in Scotland, of assessors, who provide valuable assistance, with their expert knowledge. If assessors are to be used in the NIA process that would also have an effect on the timing of the committee stage. The timescales that are used in the planning inquiry process provide a useful basis for consideration of the period that should be allowed for preparing for an opposed committee.

3.8 We have no particularly strong views about the length of time between committee stage and consideration stage, and the remaining stages of the process.

4. Unlike public bills, the Assembly and Members will have no prior knowledge or consultation on a private bill. Would it be appropriate therefore for the stage between introduction and second stage to include a period whereby the committee could carry out a preliminary consideration of the bill to ascertain if it meets the special requirements of a private bill and then report to the Assembly?

a. What criteria should a private bill meet i.e. should the promoter provide proof of need of the bill to the committee at this stage?

4.1 The question what special criteria should a private bill must meet is a separate issue from whether a promoter can demonstrate a case of need for a bill fulfilling those criteria. The major consideration is whether the subject matter of the bill is appropriate for private legislation.

Appropriate subject matter

4.2 Put simply, the function of private legislation is to confer particular powers or benefits on a person or body of persons in excess of or in conflict with the general law.[2] In addition, there is a number of additional considerations such as the novelty or national importance of the provisions, which might result in a conclusion that they should be legislated for by public bill.[3] In the UK Parliament, there is no intervening stage between introduction and second reading, or indeed between second reading and committee stage. If there are questions about whether the subject matter of a private bill is appropriate, then the Speaker of the House of Commons can draw this to the attention of the Bill to the House on its second reading. Although this has not happened for a number of years in the UK Parliament, such issues may arise for example if a private bill contains matters which would more appropriately be dealt with as a matter of public policy in a Public Bill. The Speaker would normally take advice from his counsel on issues such as this. In that sense there is a certain level of scrutiny of a Bill, albeit not by members, between introduction and second reading. If the Speaker were to draw the special attention of the House to a Bill for the reason that he thought that it contained inappropriate subject matter, it would be unusual for the promoter of the Bill to continue with its promotion, and if he did the Bill could be lost on second reading in any event.

4.3 Although ultimately it should always be for members to decide whether or not a Bill contains appropriate subject matter, in reality such decisions will almost always be taken on the recommendation of a presiding member or deputy, or a committee, following advice from clerks and legal advisers. The relevant questions rarely call for detailed evidence gathering but it will be appropriate to allow promoters to make representations, not least because having expended money on preparing a bill the promoter should be responsible for seeking to make the case for it in procedural terms as well as on merit.

4.4 The fact is that there have been no recent cases in the UK Parliament and none in the Scottish Parliament where a private bill has not been allowed to proceed because the subject matter is inappropriate for a private bill. That is not to say that it would not happen again, but it would be fair to say that promoters of private legislation realise that it is important to ensure that they have taken advice on the issue first.

Legislative competence

4.5 The Assembly must ascertain whether a private bill would be competent legislation in terms of section 6 of the Northern Ireland Act 1998. The earlier this can be addressed, the less chance there is of wasting either the time of Assembly Members and their officials or a promoter’s money and effort. In Scotland this is addressed as a preliminary matter during the pre-introduction vetting (see 3.4) above). At that stage officials, including lawyers, look at competence on a prima facie basis. However, as it is almost entirely a legal issue, this aspect of the Scottish procedure works particularly well.

Procedural compliance

4.6 The Committee has not specifically asked for evidence about the procedures to be followed by promoters to notify the public of its proposals or how compliance is to be proved. We do not think detailed notice and similar requirements should be a matter for this evidence, but proof of compliance with whatever the requirements are is relevant to the early stage treatment of a private bill. The procedures in question will be administrative and straightforward to prove e.g. by the production of newspapers containing public notices. In the UK Parliament each House has an Examiner of Private Bills (one of the officials of the House) and shortly after bills are deposited each promoter proves procedural compliance to the Examiners. This will involve attendance by the Parliamentary Agent for the Bill with compliance being proved by production of documents and on evidence from responsible individuals either in person or by affidavit. Compliance having been proved, the Committee does not concern itself with these matters.

Committee procedure in Scotland

4.7. In Scotland, the preliminary stage deals with three main issues, namely –

4.8 The Scottish model therefore provides for the Committee to decide the issues of subject matter and competence and procedural compliance, on which they hear evidence from the promoter. These are however mainly legal issues and administrative matters and experience tells that the evidence can be formulaic. We think there is much to be said for adopting a procedure which (whether or not by a procedure similar to the UK Parliament) ensures that the Committee is not troubled with procedural and similar matters which can be dealt with by officials as a preliminary issue. That could leave the Committee with the function of deciding how to proceed in the event officials finding a non-compliance.

Need

4.9 The paper also asks whether the promoter should provide proof of the need of the Bill to the committee at this early stage. As mentioned above, in Scotland, the preliminary stage, enables the committee to decide whether to agree to the general principles of the Bill. This goes further than the UK Parliament second reading approval in principle in that the Committee may require evidence from the promoter. The Scottish rules also allow for objections to be to the principle of a bill, and these are also dealt with at the preliminary stage. By contrast, in the UK Parliament, the committee which considers the Bill deals with both the principle and the detail. Petitioners against Private Bills in the UK Parliament can petition against the preamble of the Bill as a whole, or against particular clauses, or both. The committee will hear the whole case of each petitioner usually in one go, although that is up to the Committee and it could deal with principle separately. I

4.10 An issue to take into account, if the preliminary stage were to include an opportunity for objectors to run a case against the principle, is the need to avoid duplication. It would not be efficient if an objector could object to principle at one stage and then, if the committee were to decide the general principle of the Bill has been proved, to make the same case in greater detail at the next stage..

4.11 So far as the promoter is concerned, if a stage is to be introduced in the NIA procedure when the Committee specifically considers whether to approve the principles of the Bill, the Society would advocate the promoter of the Bill being given an active role. We believe Committees would benefit if the promoter were able to put forward his case to the committee, this rather than the inquisitorial approach that applies in Scotland, whereby the only way that the promoter can put his case across is in response to the committee’s questions. The Society’s suggestion would be that the promoter would put his case forward, then respond to the questions of the committee, and the committee would call on any objectors from whom they wished to hear, including ministers and other public bodies. Objectors’ evidence should be restricted only to the principle and not the details of their cases at this stage.

a. Should the committee seek the views of those affected by the private bill at this stage? And if so, how and in what format should this be done?

4.12 The reference to seeking views suggests something different from hearing objections. The Committee will have before it the result of whatever consultation the promoter has carried out. The Committee will also know the number and nature of any objections. Whether further evidence should be heard at this stage must depend on (i) the adequacy of the consultation and (ii) the scope of objections, and if to principle whether they are taken at this stage or later, because the Committee would not wish to pre-empt any decision on an objection. Our preference would be for this to be kept as simple as possible so far as objectors are concerned (which would argue for their arguments all to be deal with at the Committee stage) and for rules to leave the seeking of more general views to the Committee’s discretion rather than being prescriptive.

5. The second stage debate is on the general principles of the Bill – who will be responsible for outlining the main features of the bill and represent the promoters’ viewpoint?

5.1 it should be noted that in the UK Parliament not every private bill is debated on the floor of the House of Commons or the House of Lords. Many private bills are uncontroversial in nature and do not attract objections from Members or peers. The Bill for a recent Northern Ireland private Act (The National Trust (Northern Ireland) Act 2007) is a case in point. There were no debates at all on that Bill on the floor of either the House of Commons or the House of Lords. Nonetheless, a promoter of a private bill should always ensure that he has the support of at least one member in each House before introducing a Bill, just in case a debate is needed. In the case of a Bill promoted by a local authority, this will quite often be a local Member of Parliament or a peer with local connections. It might be more difficult for corporate promoters to find a member to sponsor their Bill, but quite often the type of Bill promoted by a company will be uncontroversial in any event.

5.2 If a debate on the Bill were required in the NIA on a similar basis (as would fit with the current Standing Orders), then it should be for the promoter of the Bill to secure the assistance of a member of the Assembly to outline the main features of the Bill and represent the promoters’ viewpoint. We do not take the view that this is a matter for a minister. Given the nature of private legislation, ministers may not have any concerns about a private Bill. In that event it seems logical that their only role should be to tell this to the Assembly.

5.3 We have mentioned above the issue of who should be responsible for the formal moving of stages on the floor of the Assembly. Our suggestion is that consideration should be given to providing that the task falls to a senior presiding member such as the Deputy Speaker, or to the chairman of the committee on the Bill.

5.4 It is to be expected that the procedure will to some extent depend upon the nature and extent of any enquiries by the Committee in advance of the Second Stage. If the Committee has had a formal role to play before the debate, particularly. in taking evidence of need, the Assembly will wish to be informed. However, with second stage as a simple debate by the Assembly, there seems advantage in leaving it as a simple political debate, leaving the case on the merits to be decided separately by the Committee after hearing detailed evidence.

6. Who, how and when can an objector lodge an objection to the private bill i.e. can an objection be lodged by post or e-mail? When can objections no longer be accepted? Should there be a fee for the lodging of objections? Are there any criteria that an objection should meet?

6.1 In the UK Parliament, petitions have to be lodged in person at the appropriate private bill office. This has the benefit of ensuring that there is an accurate record of whether or not a petition has been lodged on time. The difficulty with enabling petitions to be lodged by post are obvious in that there may be delays in the postal system, that the document may be lost internally and sent to the wrong department and there may be arguments over whether or not the document was posted properly, which could be difficult to prove either way.

6.2 The Scottish Parliament allows objections to be e-mailed, couriered or posted. Hard copies of any emailed objection must be lodged in writing within seven days.

6.3 Although the UK Parliament system works well, there has been a certain amount of consternation from some unrepresented objectors that they cannot lodge petitions by email and that they have to attend Parliament in person, or rely on the services of their local MP or an agent. Some greater flexibility may be desirable. It seems reasonable that an objector should be able to rely on the postal service, if he wants, but at his own risk of misdelivery. Email could also be useful to the NIA as providing a fast method of reliable delivery. However, an emailed document lacks integrity, so although the emailed copy could be all that is required by any relevant deadline, the Society suggests that (as in Scotland and in comparable procedures in England) the email should be followed by a hard copy. This could theoretically have a resource implication for the NIA because it might wish to check e-mail versions against hard copies to ensure consistency. Alternatively, promoters could undertake that task and report any inconsistencies to the clerks.

6.4 Whatever rules are decided, we have no doubt that promoters and objectors alike will welcome published guidance with clear instructions e.g. specifying that any objections sent by post use the recorded delivery service.

6.5 It is worth noting that in the UK Parliament, the rules as to the lodging of late petitions are enforced rigidly. There has only been one case in recent years where a late petition has been allowed to stand.

6.6 There are procedures in the UK Parliament which allow standing orders to be relaxed, and although we have not been asked directly to comment on this particular aspect, it is probably something which is worth considering at the evidence sessions, and in particular considering whether the procedures committee should itself have powers to enable standing orders relating to private business to be relaxed or dispensed with in certain circumstances.

6.7 In terms of the length of time which should be allowed for objections to be submitted, in the UK Parliament private bills are deposited on 27 November and the period within which petitions can be deposited runs from the first reading (usually on or around 21 January) until 30 January in the Commons and 6 February in the Lords. Effectively, therefore, a petitioner has between 64 and 71 days after deposit to petition against a private Bill in the UK Parliament. In the Scottish Parliament, there is a 60 day period for the lodging of objections. It is also worth looking at other statutory objection periods, most notably under the Transport and Works Act 1992 and the Transport and Works (Scotland) Act 2007, both of which provide for a period of 42 days from the date of the making of the application for an order to the expiry of the objection period. We think a 42 day period strikes an appropriate balance between the need to allow objectors to consider the Bill properly and to enable progress on the Bill to be made relatively soon after it is deposited.

6.8 In terms of a fee for objections, this really is a matter for the Assembly itself. The fee in both the UK Parliament and the Scottish Parliament is £20. Objections against Transport and Works Act Orders do not need to be accompanied by a fee at all. There is an argument that those affected by a Bill should not have to pay a fee, and that is particularly the case where, for example, the Bill would authorise the compulsory acquisition of the objector’s land. There is also a case for seeking to deter frivolous objections The important thing is to ensure that if there is a fee it should not be prohibitive.

6.9 The standard criteria which we believe should be met by an objection are reflected in the UK Parliament and Scottish Parliament rules. The objection should contain the name and address of the objector, should be dated, and it should set out briefly all the grounds for the objection. These grounds should not be capable of amendment (as is the case with both the UK and Scottish Parliaments).

6.10 There is one particular aspect of the requirements for private bill petitions in the UK Parliament which is of great use, namely the express requirement that the Petitioner is required to explain, albeit briefly, his standing (i.e. why he believes he has a right to petition) in the form of a paragraph alleging why he is specially and directly affected by the Bill’s proposals. A prospective petitioner who cannot demonstrate this is not entitled to petition and, although the petition is not automatically disallowed, there is a procedure for petitions to be disallowed on successful challenge by promoters. The Scottish Parliament’s rules are not as explicit and there is no prescribed method of challenge.

6.11 The Society recommends the inclusion of specific rules providing that objectors to private bills must be able to show that they are specially and directly affected by the proposals. This is consistent with the nature of a private bill, which affects particular persons and areas, not the public at large. There is therefore no reason why the general public should be entitled to object to a private Bill which is not relevant to them. Representative groups could be entitled to object as representing relevant, affected, interests. The UK Parliament has detailed standing orders dealing with this.

6.12 Assuming a rule of this sort, a means of challenge such as that applying in the UK Parliament could be particularly helpful in cases where there is some doubt as to whether the petitioner is sufficiently affected by the proposals in the bill. . There is nothing in the background paper which suggests that there will be any mechanism in the NIA procedures to enable the standing of objectors to be challenged. Whilst the procedure is relatively rarely used in the UK Parliament, it has certainly not been disregarded and Parliament has usually taken the view that promoters of private bills should police the standing orders vigilantly to ensure that Parliament does not need to deal with objections which are frivolous or trivial, or are submitted by persons who have no proper interest in the subject matter of the Bill.

6.13 In the House of Commons a special committee known as the Court of Referees deals with challenges to standing and in the House of Lords the issue is dealt with by the bill committee itself. There is merit in the former in that disposal of objections in advance of hearings means that hearing time can often be drastically reduced. The difficulty with the Lords’ approach is that the promoter, the petitioners and the committee have to gear themselves up for a full hearing, in case the locus challenge is unsuccessful. We would recommend that if the NIA is contemplating a procedure whereby the standing of petitioners can be challenged, then it is done by way of a separate committee stage before the main committee stage, and at an early stage in the Bill’s progress, as soon as possible after the objection period has expired.

7. Should a private bill be referred to a specially designated private bill committee or would it be more appropriate for it to be referred to the most relevant (in terms of subject matter) statutory departmental committee.

7.1 In the House of Commons, private bills are dealt with by one of two types of Committee. If petitions lodged against the Bill have not been withdrawn by the time the Bill starts its Committee stage, then the Bill is considered by a Select Committee of Members of Parliament. The members chosen are always from the back benches, and none has a constituency interest in the Bill. That means that if a Bill were promoted by the London borough councils, for example, no London Member of Parliament could sit on a Select Committee on the Bill. This is important, because the committee will sit in a quasi judicial capacity, weighing up the evidence of the promoters against that of the petitioners. If there were any hint that there might be some bias in the make-up of the committee, then it would be of disadvantage to all concerned.

7.2 In the House of Commons, Bills which are unopposed by petition are dealt with by an unopposed Bill Committee whose members are drawn from a panel that is constituted at the beginning of each Parliament. The actual membership of each committee will take into account any members’ interests. The procedure has the distinct advantage that its members have considerable experience in dealing with Private Bills and, whilst it might be difficult for the NIA to establish such a panel because the membership is so much smaller, this advantage might make the panel approach desirable for the NIA. We expand on this later in this note.

7.3 We take the view, especially in any case where there are objections to the Bill, that it would not be appropriate for a departmental committee to consider a private Bill. Even if Members with constituency interests were required not to sit, the fact that the Committee’s target department might have some interest in the Bill does not in itself mean that the Committee would be in any more informed a position regarding the specifics of the Bill than would Members generally. We recommend that the committee on a private Bill should be specially selected, with particular attention being paid to members’ interests.

8. It is common practice elsewhere to allow promoters and objectors to be legally represented during the public evidence sessions of private bills committees. The role of the private bill committee (whether an existing statutory committee or a designated private bill committee) will be to adjudicate between the promoter and objectors – if there are any objections.
a. Should the promoter and objector(s) be allowed legal representation during the evidence gathering sessions of the private bill committee?

8.1 We take the view that legal representation should be allowed. A private bill is different from a Government or Executive Bill in the sense that it directly affects, not the public interest represented by Assembly Members but the private interests of the promoter and any objectors. The promoter has to prove the need for the Bill, possibly in the face of opposition from objectors in committee, while objectors will be specially affected in ways that can include the compulsory purchase of their property. Often the Bill itself will contain very complicated legal principles which a lay promoter may find difficult to convey to the Committee and which may be even more difficult for a lay objector. It cannot be assumed that every promoter of a private bill will necessarily be a skilled advocate for his cause or be used to public speaking and giving evidence. The same may be even truer of objectors. It is arguable that depriving the parties of legal representation may infringe their Article 6 rights under ECHR.

8.2 To allow legal representation presupposes that the proceedings may be to some degree adversarial, or in some other way permit the parties to make their own cases in their own way. The alternative of an inquisitorial process, with all questions being asked of witnesses by the committee, does not really allow for a contribution by representatives. We take the view that if the committee proceedings were left to an entirely inquisitorial approach then the parties (and particularly the promoter) may not get the opportunity to put their cases to the Committee. The Committee would no doubt wish to frame questions so as to draw out all relevant information, but experience from Scotland suggests that this can lead to a case being put in a less than straightforward way because it has to be put within the constraints of Committee questions.

b. Should the private bill committee allow cross-examination of objectors by the promoter and vice versa? Or should this be done through the chair?

8.3 In similar proceedings elsewhere in the UK (the UK Parliament, the Scottish Parliament at Consideration Stage and Transport and Works Order inquiries in both England and Wales and Scotland) direct cross-examination of promoters’ and objectors’ witnesses is allowed. Where an objector simply makes a statement to a committee, then questions can be put to him through the chair. In effect, this normally turns into direct cross-examination in any event. The system works well and the only real disadvantage can be that sometimes the proceedings are prolonged where cross-examination is unnecessarily long. It must be said that this is almost invariably the case where the objector is not legally represented and takes the opportunity to question witnesses on matters which are not directly relevant. An advocate will know only too well that lengthy cross-examination is unlikely to endear his client to the committee. An important role of the chairman is to ensure that cross-examination is kept within reasonable bounds.

c. How far should the promoter and objectors be allowed to go to prove their case i.e. should they be allowed to call for witnesses and show evidence?

8.4 Unlike public Bills, which are by definition mainly concerned with policy on a given topic, private bills are first and foremost concerned with facts. Rather than hearing statements of policy, therefore, Committees’ prime concern will be to establish underlying, often complex, facts. It is therefore very important that the evidence-gathering process should be effective. It is also an essential aspect of the parties being permitted to make their cases to the Committee, since a case cannot be properly demonstrated on the basis of submissions alone and unsupported by evidence. For these reasons we believe it is very important that promoters and objectors should be allowed to call witnesses in their favour when promoting and objecting to private bills. It is worth noting that the UK Parliament has only very recently changed its own procedures in relation to Public Bills, enabling witnesses to appear before Public Bill Committees to give evidence in relation to Bills, so in one sense this is a growing concept.

8.5 In terms of private bill promotions, it is the evidence of the witnesses which more often than not is the key to the decision making of the committee. If the promoters are required to provide evidence under oath to support or justify their proposals, then the committee can test it and objectors are able to dissect the evidence fully in cross-examination. Again, Article 6 ECHR rights may also be an issue here. Depriving either party of the ability to call evidence may give rise to questions over compatibility.

d. Should the promoter and objector be allowed to use counsel for the cross-examination? Practice elsewhere indicated that objectors rarely bring counsel with them to the committee. Are there any equality aspects that the Assembly should take note of in this situation?

8.6 We start with the general principle that every person, promoter or objector, should have the freedom to choose the most competent legal representative he can secure to put forward his case. This again touches on Article 6 principles. This principle holds true in all other forums, from courts to public inquiries.

8.7 Our experience is that whilst it is true that objectors in person rarely use counsel, and often find themselves up against counsel, that does not necessarily have any real bearing on the outcome of the proceedings. Committee members are astute enough to realise that unless they provide objectors with all the assistance that they possibly can, then arguments may be raised about equality of arms and possibly even human rights. We refer to previous answers relating to the right to legal representation per se, and in particular in cases where there are matters of complicated law which may require the expertise of specialist counsel to be able to explain them to the committee. In the case of promoters, we certainly take the view that they should be able to call on the services of counsel if they wish to do so. The promotion of a private bill is not a trivial matter, and quite often very significant resources will have been put into the promotion and the subject matter of the promotion itself and the project behind the promotion. Similarly, the issues at stake for objectors may be very significant. We take the view that promoters and objectors should not be precluded from obtaining what they consider to be the best form of legal representation whether it be in terms of the specialist knowledge of counsel or his skills in presenting the case.

8.8 In terms of equality, our experience has been that generally speaking in both the UK and Scottish Parliaments there have been few complaints about equality of arms. The committees before whom we have appeared have generally been exceptionally good at putting objectors at ease and ensuring that the objector knows that the committee considers the cases of all those who appear before it equally seriously. It is worth noting that in some cases the employment of counsel by one party may even backfire, for example in a simple case which could be dealt with by a solicitor advocate, or by the promoter in person. Committees have been known to make clear their views, even though impliedly, that the services of counsel may well not have been required in that particular instance.

e. What should be the role of the committee chairperson in such a situation?

8.9 In principle, the role of the chairperson should be to ensure that there is a fair balance between the parties. As mentioned above, the committee chairperson would normally ensure that it is made quite clear to the unrepresented objector that his views will be taken seriously and that the committee understands how difficult it might be for the objector, particularly if they are not used to appearing in a public forum. A very good example of how well objectors can be treated is to be found throughout the Hybrid Bill House of Commons committee proceedings on the Crossrail Bill which is currently still in Parliament. A large number of unrepresented individuals appeared before the Select Committee and it was very noticeable that they were treated with a considerable amount of respect by the members and that they were always put at ease by the chairman. In many cases it was plainly obvious that the committee were taking a real interest in the individuals’ cases and that is borne out by some of the decisions that the committee made. Many Scottish examples could also be given.

9. What should be the role of the private bill committee if there are no objectors to the bills?

9.1 We have already mentioned above the role of unopposed Bill committees in the House of Commons in the UK Parliament. They are drawn from a panel of members appointed at the beginning of each Parliament. The NIA might wish to consider going down this route for unopposed Bills, but we understand that this might not be a viable proposition given the number of Assembly Members in total, and the fact that there may well not be very many Private Bills .

9.2 Having said that, even if the Bill is to be considered by a specially designated committee, the burden should still fall on the promoter to prove the need for the legislation, if necessarily by evidence, in front of the committee. It will be the role of the committee to decide whether the case of need has been made out.

9.3 The Committee may also wish to probe, seeking answers to its own questions. Our experience in the UK Parliament in both the House of Commons and the House of Lords is that the committee itself makes it clear to the promoters and petitioners from the outset what are the particular aspects of the Bill about which it has questions. The Scottish procedure is more formalised, with Committees producing papers of specific questions. A disadvantage for the promoters is that they often do not know what those concerns are until the committee proceedings have actually started, so they have to be prepared for questions on any matter arising within the scope of the Bill. This means preparing witnesses to come to the committee to give evidence. Whilst this might be seen as being inconvenient for promoters, we do think it is a necessary aspect of the proceedings.

9.4 The procedure taken before the unopposed committees in the UK Parliament is as follows. Usually the promoter through his agent would introduce the Bill by describing what it does and describing the problem which it intends to address. The agent might well call a witness to deal with the generality of the Bill, and in particular explain the problems that are at hand. The committee would normally then adopt an inquisitorial approach and ask questions of the witness and of the agent on the legal aspects and the factual background. Quite often the proceedings are short, and they are informal in nature. Nonetheless, the committee has the ability to reject the Bill if it is not satisfied that the promoter has provided sufficient evidence to prove the need for it, and it has the ability to amend the Bill either at the request of the promoter, or off its own bat.

10. It is not normal practice for Assembly committees to make amendments in committee – an Assembly Committee reports to the Assembly with any proposals it may have for amendments to a bill. It is the Assembly which approves the amendments. This practice may prove problematic for private bills as it may be difficult for the promoter to resist unwelcome amendments or to seek to support an amendment. To address this aspect a number of options open to Assembly including allowing a private Bill committee to make amendments; alternatively the consideration stage may be limited to only amendments proposed by the private bill committee or the promoter but this would restrict the ability of MLA’s to make amendments. Which of the options do you feel would be the best procedure for the Assembly or it there another option you feel would be more appropriate?

10.1 We take the view that the UK Parliament model serves well. The committee (whether it be an opposed select committee or an unopposed Bill committee) in both Houses has the ability itself to make amendments to the Bill whether at the behest of promoters, or objectors, or of its own volition. The equivalent Scottish procedure is similar, with amendments being made by the Committee itself.

10.2 Giving the committee the ability to amend does not mean that Members generally need be deprived of all opportunity to do so. In the House of Commons, any Member of Parliament can table amendments to the Bill on consideration stage (if there is a consideration stage). It should be noted that in the House of Commons consideration stage is only required if the Bill has been amended in committee. If it has not, then the scope for members to submit amendments to the Bill on the floor of the House is severely limited. In the House of Lords, amendments can be tabled by any peer on third reading, although it is rarely done.

10.3 We think that there is a strong argument for the committee which has actually heard all of the evidence itself being the forum which has the prime ability to amend a Bill. There is a distinction to be drawn between private legislation and government legislation in this regard, particularly because of the evidence-based justification for a private bill. That is particularly so if the committee has heard from objectors. If an objector appears before the committee, and secures an amendment to protect his interests, having persuaded the committee of his case on the evidence, it is the Committee that will be in pole position to determine whether amendments are required and it follows that a private bill committee should be able to amend the Bill themselves.

10.4 The approach that we advocate (i.e. enabling the committee to make amendments at committee stage and Members to table amendments at the consideration stage) could result in an amendment made by the committee could be reversed on the floor of the Assembly. If the Assembly takes that course, it will do so in the knowledge that it is moving against the findings of its own committee.

10.5 In our view the consideration stage should give the Assembly the opportunity to review the whole of the Bill – so should not be limited in terms of the amendments that Members may table – but should not become a re-run of the Committee proceedings and should re-visit the second stage approval of general principle only in light of the Committee proceedings and amendments. It would be for the Chair to seek to avoid duplication of this sort.. It would be the responsibility of the promoter of the Bill to seek sufficient support amongst Assembly Members to object to any amendments tabled at the behest of objectors. This is the situation which has worked for many years in the UK Parliament and on balance seems to work well.

11. Private bill committees elsewhere tend to be formed of a small number of members. If the Assembly decided on a designated private bill committee, how many members should serve on it and what rules should cover the operation and procedures of the committee?

11.1 This question engages the possibility of the Assembly setting up a panel of the sort which we have described above in relation to unopposed Bill committees in the House of Commons. That panel consists of some 16 members and each private bill Committee is considered by a committee of five members drawn from that panel. If the number of Private Bills affecting Northern Ireland remains at the same sort of level that has been set over the last few years (i.e. very few) then we think that this system could work equally well in the NIA. The panel approach is slightly different from what may be behind Question 11, namely that there should be a single private bill Committee to deal with all Private Bills. The benefit of a panel is that any problems in relation to local interests would not arise. For example, a private bill might be promoted by a local authority an have an effect on a local area. It would be inappropriate, we would submit, for a local member to serve on the committee that dealt with the Bill. If the committee was to be drawn from a panel, then that member could easily be excluded.

11.2 In terms of pure practicality, a large committee would result in a large number of Members having to assimilate what could be significant amounts of evidence. In the interests of efficiency and minimising the burden on the Assembly, it seems desirable to keep numbers to the minimum reasonably necessary to perform the committee’s functions. A fluctuating number (as can happen with public bill committees) would not be workable.

11.3 Whatever selection process is chosen, the committee should be constituted of an odd number of members (we would suggest 5, which allows for occasional absences) and that its decisions should be made by simple majority.

12. It is expected that the private bill promoter will have to meet certain costs associated with the passage of a private bill through the Assembly. Costs to be charged to the promoter could cover items such as staff time and printing cost. What other costs do you think could be included? Do you think the promoter should also pay a one off fee?

12.1 It is obviously of great importance for a promoter to know how much a Bill will cost to promote, or at least the order of cost that should be budgeted for. This is not an easy question to answer, because of course a promoter can never be sure what level of opposition will arise. It is therefore beneficial to promoters that the UK Parliament charges a fixed fee for the promotion of private bills. The fee is justifiable in the sense that there are still a fair number of Private Bills in Parliament and the fees undoubtedly do go to meeting the overall expenditure of Parliament in dealing with them. The fee charged by the UK Parliament for the promotion of a private Bill to Royal Assent is £16,000. This covers the UK Parliament’s own expenses – staff fees, provision of committee room for the committee stage – but not printing costs (printing being in any case the responsibility of the promoter and carried out outside Parliament) or fees for shorthand writers and transcripts of the committee proceedings.

12.2 In Scotland, there is a fee of £5,000 which we understand is intended to cover the costs of in house staff time, and promoters are also required to give an undertaking to pay the separate costs of printing, transcription of evidence and committee establishment costs. Those fees can be considerable.

12.3 Given the number of private bills which are likely to go before the NIA, we understand that it would be more difficult to set a fixed fee based upon the overall staff costs devoted towards Private Bills. We do not think a one off fee should cover the costs of the printing of a Bill. That is something which should be paid for separately by the promoter. However we do think that if a fee is to be charged to cover staff time and other expenditure incurred by the Assembly, then it should be a fixed fee based upon an assessment of the staff time taken up for the promotion of an average Private Bill.

13. Should a charitable organisation promoting a private bill have a reduced rate?

The Society believes that, following the UK and Scottish models, charitable and other not for profit organisations should be allowed to pay a reduced rate. It seems desirable to incorporate a measure of discretion. While the reduced rate could catch all registered charities, not every not for profit organisation will be deserving of the reduced rate. Local authorities, for example, are not included in the charity reduction for the UK Parliament.

14. It is anticipated that those wishing to object to the private bill should also be charged a fee. In your opinion what level of fee is fair and equitable?

We think this should be a matter for the Assembly. In the UK Parliament and the Scottish Parliament the fee is £20.00.

[1] See the Transport and Works (Applications and Objections Procedure)(England and Wales) Rules 2006 (SI 2006/1466) and the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 (SSI 2007/570)

[2] See Erskine May Parliamentary Practice 23rd edn p. 965.

[3] Op cit. There is a helpful discussion in chapter 37.

The National Trust Header

Ms Stella McArdle
Clerk, Committee on Procedures
Room 430
Parliament Buildings
BELFAST
BT4 3XX

E-mail
Direct Tel
Your Ref
Our Ref
Date

diane.ruddock@nationaltrust.org.uk
028 9751 2301


28 January 2008

Dear Stella,

Committee Inquiry into Private Legislation

I am pleased to enclose a written submission from the National Trust to assist the Committee on Procedures in its Inquiry into Private Legislation.

I also confirm that we will be happy to provide a briefing to the Committee at a time of your convenience on Wednesday 20 February 2008. Those attending the Committee will by myself and my colleague Graham Thompson.

Please contact me if you require any further details ahead of the hearing.

Yours sincerely

Diane Ruddock
Policy and Campaigns Manager

Written Evidence from
the National Trust

The Natioanl Trust logo

1. Introduction

The National Trust is pleased to offer evidence to the Committee on Procedures to assist its inquiry into private legislation. This paper covers:

2. Background to the National Trust

The National Trust is an independent environmental and conservation charity founded in 1895 to preserve places of historic interest and natural beauty permanently for the benefit of the nation. The National Trust, which covers England, Wales and Northern Ireland, has over 3.5 million members, including more than 46,000 members in Northern Ireland.

The National Trust is the largest conservation charity in Northern Ireland and actively promotes the protection of our natural, built and cultural heritage. The Trust protects and provides access to some of the finest coast and countryside, historic houses, gardens and industrial heritage in Northern Ireland.

The National Trust also works proactively with a number of government departments and agencies, and other partners across the business and voluntary sector to promote a well-protected, healthy environment and heritage assets which are valued and enjoyed by all.

The National Trust derives its statutory basis from the National Trust Act 1907, and subsequent Acts from 1907-1971, while in Northern Ireland the National Trust Act (Northern Ireland) 1946 brought NI legislation into line with that in England and Wales.

3. Recent experience of Private Legislation

The National Trust undertook a review of its governance structures in 2002-2003 to ensure that its structures were effective and fit for purpose for the 21st century.

Prior to this review, the Trust’s overall governing body (i.e. Trustee body) was the National Trust ‘Council’ As a result of the review, a new smaller trustee body was established, ‘the Board of Trustees’ and the role of the ‘Council’ was modified.

A summary of the new roles as provided in the governance review is set out below:

The Board of Trustees is responsible for the running of the charity and for making sure that the organisation works as well as possible to deliver its core purposes. The majority of the Board of Trustees are Council members

The Council appoints the Trustees and makes sure they discharge their responsibilities properly. The Council is made up of 52 members: 26 elected by the members of the National Trust and 26 appointed by organisations whose interests coincide in some way with those of the National Trust. It is this mix of elected and appointed members that ensures that the Trust takes full account of the wider interests of the nation, for whose benefit it exists. The breadth of experience and perspective which this brings also enables the Council to fulfil its role of holding the Board of Trustees to account and to act as the Trust’s conscience in delivering its statutory purposes.

The changes to the governance structures were given effect through a scheme promoted by the Charity Commission: the Charities (National Trust) Order 2005 (‘the Scheme’).

However, the existing National Trust legislation in Northern Ireland (the 1946 Act) refers specifically to the ‘Council’, in relation to certain key decisions being taken which would now be taken by the Board of Trustees under the Charity Commission Scheme. It was therefore essential to bring the Trust’s Northern Ireland legislation into line with the Scheme. However the Scheme cannot amend Northern Ireland legislation (the Charity Commission has no power to do that) and the only way to achieve the above objective was for there to be a Northern Ireland Bill. This decision was taken in consultation with the Charity Commission.

The mechanism used to take this forward was a private bill. The Trust appointed Parliamentary Agents Winckworth Sherwood to draft the bill and to assist in steering the process through Westminster. This was a short and simple piece of legislation. As well as making provision for the change described above, the draft bill was also designed to remove a prohibition on Trust tenants in Northern Ireland becoming members of the Trust’s Council (a similar provision had already been enacted for England and Wales in the Scheme).

At the outset, the Trust consulted with the Department for Social Development in Northern Ireland and with Environment and Heritage Service. We also wrote to all Northern Ireland MPs to advise them of the process and offering further information.

In accordance with Parliamentary Standing Orders the Bill was presented to members of the National Trust at its AGM in Cheltenham in November 2006 and a resolution calling for its introduction to Parliament was approved by the requisite majority of three fourths of the members present in person or by proxy and voting at the meeting.

Later that month the Bill was presented to Parliament by our Parliamentary Agents. A short appointment was held in the Houses of Parliament at which our Parliamentary Agents proved that the Trust had complied with all Parliamentary Standing Orders.

Our intention to bring forward the private bill was advertised in the London Gazette, as required, and a period for objections was allowed. During this phase, there was one enquiry for further information, which we fulfilled, but there were no formal objections.

The bill then had its first and second readings in the House of Commons and proceeded to the committee stage. This could not take place unless the Attorney General first certified that the draft bill was for the public benefit. The Attorney General certified that he was satisfied on this point. There then followed a hearing on 9th May 2007 before the House of Commons Unopposed Private Bills Committee. Our Parliamentary Agent appeared before the Committee accompanied by senior employees of the Trust and described the Bill and its purpose to the Committee. He then called the Trust’s employees as witnesses and answered questions from various members of the Committee. The Committee decided to let the bill pass without any substantial amendments. The bill then had its third reading in the House of Commons.

The bill then proceeded to the first and second readings in the House of Lords during June 2007 without challenge. Again it was necessary for the Attorney General to certify that he was satisfied that the bill was for public benefit. At the committee stage, on 5th July 2007 the bill was again presented by our Parliamentary Agents and was passed with minor drafting amendments proposed by the Trust. The bill then had its third reading in the Lords and was returned to the Commons for approval of the Lords amendments. Immediately following such approval the bill received the Royal Assent on 26th July 2007, to become the National Trust (Northern Ireland) Act 2007.

4. Response to Committee’s questions

Based on our, albeit straightforward, experience, we would offer the following comments to the Committee’s questions:

4.1 How should a private bill be introduced and moved through its stages?

4.2 Ensuring full and detailed consultation

4.3 Number of stages and timing

4.4 Should there be a preliminary consideration of the bill?

a) criteria: the promoter should be able to demonstrate the need for the bill at the point of introduction; no facility should exist to bring forward a private bill if the matter could be addressed through public legislation.

b) seeking the views of those affected: if the promoter can demonstrate that he has consulted with bodies likely to be affected, there should not be a need for a Committee to seek these views at this proposed preliminary stage. Any objectors could have the right to be heard at the later committee stage.

4.5 Second stage debate – who will be responsible for outlining main features and representing the promoter?

4.6 How/when can an objector lodge and objection?

- When a private bill is advertised prior to introduction, there should be an opportunity for interested bodies to lodge objections in writing, within a specified, time period. This time period should be sufficient to allow for an adequate exchange of information between the promoter and the objector. Any fee for lodging objections should be fair and proportionate, not excessive. We would suggest that to avoid frivolous or vexatious objections, any objections should relate specifically to the technical and factual nature of the bill being proposed. (In other words, an individual should not be allowed to lodge an objection based solely on opposition in principle to the promoter’s organisation or its principles.)

4.7 Referral to a designated committee or a departmental committee?

4.8 Objections

4.9 Role of private bill committee if there are no objectors?

4.10 Dealing with amendments

4.11 Nature of a private bill committee

4.12 Costs

4.13 Reduction of fees for charitably organisations?

4.14 Fees for objectors

5. Conclusion

We hope that the comments above will help the Committee in its deliberations. We are happy to provide further elaboration in oral evidence.

For further information, please contact:

Diane Ruddock
Policy and Campaigns Manager
The National Trust
Rowallane
Saintfield
Ballynahinch
Co. Down
BT24 7LH

DDI 028 9751 2301
Mob 07802 185521

25th January 2008

Written Evidence from the
Department for Regional Development

Central Management Branch
Room 413a
Clarence Court
10-18 Adelaide Street
Belfast
BT2 8GB.

Stella McArdle
Clerk to the Committee on Procedures
Committee Office Room 430
Parliament Buildings
BELFAST
BT4 3XX

Telephone:
Facsimile:
Email:
Your reference:
Our reference:

(028 905) 41140
(028 905) 40064
rodney.archer@drdni.gov.uk


5 February 2008

Dear Stella

You wrote to Alan Doherty on 21 November on behalf of the Committee on Procedures’ Inquiry seeking a written brief from DRD in relation to Private Legislation. In particular you asked the Department to provide views following problems encountered by the Scottish Executive in relation to transport schemes requiring Private Legislation.

Please find briefing material cleared by the Minister for Regional Development, which I hope this is of assistance.

RODNEY ARCHER
(on behalf of)
Assembly Liaison Officer

Written Evidence from the
Department for Regional Development

Background:

Over the last 3 years, 7 Private Bills were used to progress a number of public transport infrastructure schemes in Scotland. These schemes included a tram scheme in Edinburgh and 6 rail schemes (opening disused lines, extended existing routes and improvements to Waverly Station).

The problems encountered were:

The Scottish Parliament decided that this was not an appropriate approach to deliver public transport infrastructure proposals and recommended the introduction of new legislation.

The Transport and Works (Scotland) Act 2007 was put in place on 29/12/07. This Act:

The link below refers to Transport and Works (Scotland) Act 2007

http://www.scotland.gov.uk/Topics/Transport/TAWS

DRD Position

The Department is not aware of any transport projects currently that are likely to result in a request for private legislation through the private procedure:

The Department is aware that the Transport and Works Act 1992 gives the Secretary of State the power to make orders regarding the carrying out of works which interfere with rights of navigation in waters around England and Wales and understands that this power would be usable for non transport related projects. In Northern Ireland both roads legislation and legislation relating to Northern Ireland Railways allow construction, for example bridges and tunnels, that would interfere with navigation, provided that any revised or new watercourse is navigable “in a reasonably convenient manner” by vessels of a kind accustomed to using the waterway.

Written Evidence from the
Scottish Parliament

Private Bills Procedure

Thank you for inviting Jane and I to give evidence to you this morning. My name is David Cullum and I am the Head of the Private Bills Unit at the Scottish Parliament. My colleague Jane Sutherland was Clerk to two Private Bill Committees during Session 2 - the Edinburgh Tram Line One Bill Committee and the Edinburgh Airport Rail Link Bill Committee. Personally I have been involved with every Private Bill that has gone through the Parliament. I was heavily involved at the outset in drafting the guidance we use and putting the procedures into place. That procedure and guidance has been developed over the years to take account of experiences and learning. We have tried to take a flexible approach particularly when selecting the evidence taking procedure to be used to meet the demands of the Bill. Our Standing Orders are helpfully vague in that area.

Before a Private Bill is introduced there is considerable contact between the Private Bills Unit and the promoter as to the requirements that must be met for a Bill to be introduced.

This pre introduction contact is vital in ensuring that the promoter understands what will be required of them during the Parliament’s consideration of their Bill. Contact with potential promoters begins many months before any Private Bill is introduced. At meetings with promoters, clerks aim to anticipate areas of committee inquiry and ensure that as much information as possible was provided in the Accompanying Documents. For example the first draft Promoters Memorandum for the Airdrie to Bathgate Railway Bill was around 7 pages, the lodged version ran to 79. A lot of information that the promoter might not have wanted to provide was added, particularly to justify the approach taken and decisions made. All of this was with a view to giving information to the Committee as well as to those people affected by the proposals - potential objectors.

One of the lessons learned from early Private Bills was that effective consultation and communication between potential promoters and possible objectors is essential. A good relationship between the promoter and possible objectors can result in fewer objections, more realistic expectations from both parties and less entrenched views. As a result of early experience the guidance on Private Bills was strengthened to require promoters to provide a lot more information about the nature and tenor of their consultations with affected parties. Requiring detailed information such as what changes were made as a result of consultation helps promoters to understand that consultation must be meaningful. In addition, we have mandatory consultees, mainly statutory bodies.

Private Bills can be introduced by an individual person, a company or a group of people. The purpose of a Private Bill is to enable the promoter to obtain powers or benefits that are in addition to or in conflict with the general law. Private Bills allow promoters to do things which would otherwise be unlawful and thus open to challenge in the courts.

The fee to introduce a Private Bill is currently set at £5,000 although a reduced fee of £1,250 is available where the Bill relates to a charitable purpose or is introduced by an individual.

The promoter is also required to pay for certain costs which may arise during the Bill’s Consideration by Parliament. These include:

The promoter lodges the Bill along with accompanying documents which include explanatory notes, policy memorandum, and any other required documents at the Parliament. The accompanying documents must give full explanation of and background details to the purpose of the Bill along with details of the scheme it intends to promote.

If I may I will digress a little here into comments about drafting, as your clerk indicated this would be of interest to you.

All the large Bills that we received were drafted by individuals from firms who had previously been accredited by Westminster as Parliamentary Agents. They were all entitled to draft and lodge Private Bills at Westminster. Our drafting requirements are substantially different from Westminster and our procedures differ greatly so we did not mirror the need for accreditation.

I have had a lot of experience in considering draft Bills and working with Parliamentary lawyers we offered substantial comment to promoters in the run up to introduction. For the later Bills these comments were supplemented with suggestions for additional provisions based on our experience of earlier Bills. We took, in effect, an incremental approach and when one committee amended Bills to require certain protections to be added, future promoters were required to follow suit or justify why they were not doing so.

This pre introduction scrutiny, which is very time consuming, did however reduce the number of formal amendments required and I am also fairly sure it also reduced the number of objections received to these later Bills. I will return to objections shortly.

The promoter must personally notify any person or group of persons that may be considered to be affected by the Bill and provide the opportunity for consultation regarding the proposed Bill.

There is a 60-day period from introduction during which objections to the Bill must be lodged.

Anyone can object to a Private Bill although there a number of criteria which an objector must meet including setting out clearly why the objector opposes the Bill and how they would be adversely affected. At the end of 60 days, the clerks determine the admissibility of all the objections lodged.

There is a fee of £20 to lodge an objection. The £20 fee was agreed by Parliament in November 2000 and its purpose is to encourage individuals who have similar concerns to lodge one objection covering the same points rather than each individual objecting on their own. It is the issues arising from the objections that are important to the Private Bill Committee, not the quantity of objections.

Another lesson learned was the importance of providing concise relevant information to objectors and managing their expectations about the Private Bill process. Throughout the Private Bill process the clerks meet with objectors to inform them of what to expect at the next stage, and what may be required of them. The clerks are not there to assist the objectors in preparing their contributions but to ensure that they understand the procedures to be followed so they can make better decisions about what they wish to do.

The approach to meeting objectors developed and grew as we processed the Bills. In handling the final Private Bill last session, the Airdrie to Bathgate railway line, we met with objectors before they had even objected. We organised local meetings for those who had engaged with the Promoter prior to introduction and spoke to them at some length. We shared our experiences with them of earlier Bills. The number of objections ultimately received to that Bill was less than 50% of even the Promoter’s most optimistic earlier assessment.

We also insisted that the Promoter and objectors open a dialogue and try to resolve objections without the need for the Committee and ultimately Parliament to do so. We required periodic updates from the Promoter on how these discussions were going and we were not slow to intervene when matters stalled or reached impasse. But we took no sides being equally firm with both.

A Private Bill Committee consisting of 5 MSPs is convened to consider and report to Parliament on the Private Bill. These 5 members cannot reside in or represent the area affected by the Bill. Unlike other subject or mandatory Committees, the members on Private Bill Committee should be neutral and impartial in their deliberations and must base their decisions in Committee solely on the evidence presented to them. Party political considerations can play no part in the committee’s decision making – and we had some interesting examples around that requirement. The 5 members are required to make a declaration to this effect at the first meeting of the Private Bill Committee.

One of the Committee’s main roles is to arbitrate between the interests of the promoter and objectors. In doing so they are acting in a judicial capacity – determining rights. I think all committees on occasion found that aspect quite difficult.

There are 4 stages in the private bills procedure – the Objection period, Preliminary Stage, Consideration Stage (during which there is Phase 1 and then Phase 2) and Final Stage.

Preliminary Stage

After the Committee is established, on a motion of the Parliament, Preliminary Stage begins.

During Preliminary Stage, the Committee’s role is to report to Parliament on two issues, namely, whether the Parliament should agree to the Bill’s general principles, and whether it should agree that the Bill is appropriate to proceed as a Private Bill. The Committee is also required to give preliminary consideration to objections at this Stage.

In considering the general principles of the Bill, the Committee considers the Bill as a whole. The Committee takes oral evidence, especially if there are any doubts about the general principles. The Promoter was given an opportunity to explain their position. Committees also heard from objectors, particularly those who were opposing the Bill as a whole.

The Committee consider whether the Bill conforms to the definition of a Private Bill and whether accompanying documents conform to our rules, and that they are sufficiently detailed to allow proper scrutiny of the Bill (the lever we use to require improvements at the pre introduction stage)

The third role of the Committee is to give preliminary consideration to any objections lodged and to decide on the objector’s right to be heard at the Consideration Stage. This is limited to the Committee satisfying itself that each objection is based on a reasonable claim that the Bill would clearly adversely affect the objector’s interests. This test is higher than that applied by the clerks at the end of the objection period. In all the Bills considered not one objection was allowed to proceed which opposed the Bill as a whole - in effect such an objection would be opposing the general principles.

Once the Committee has completed its consideration it will report to Parliament. The report recommends whether the general principles of the Bill should be agreed to and whether the Bill should proceed as a Private Bill.

After publication of the report a Preliminary Stage Debate is held on a motion lodged in the name of the Convener of the Committee. If agreed to the Bill will proceed to Consideration Stage, if not agreed to the Bill falls. All such motions to date have been agreed.

Consideration Stage

The overall purpose of Consideration Stage is to consider the detail of the Bill. There are two distinct phases within this, the first involves the assessor or the Committee meeting in a quasi-judicial capacity to hear evidence on all outstanding objections to the Bill and any other outstanding issue. The second phase involves the Committee meeting in a legislative capacity to consider and dispose of any amendments to the Bill.

At the beginning of the Consideration Stage, the Committee and assessor must agree from whom to hear evidence, either oral evidence, written evidence or both. All objectors had a right to be heard.

The Committee agrees the witnesses allowed to give evidence and determines the order of proceedings. In later Bills to reduce the burden on members they delegated the hearing of evidence to an Independent Assessor. (We used a retired reporter to public inquiries for this task [Professor Hugh Begg]).

The primary benefit of using an Assessor was described as the capacity to “reduce the burden on MSPs in dealing with what are at times highly complex and technical matters”, while also enabling the process to be conducted more efficiently.

Once the Phase 1, the hearing of evidence - has been completed, the assessor reports to the Committee on the evidence given and with recommendations on whether to uphold or dismiss each objection on the basis of the evidence that the assessor considers appropriate. The Committee considers the assessor’s report and recommendations and then publishes its Consideration Stage report with the assessor report as an annexe. Where the assessor made recommendations these were adopted by the committee in all cases.

We allowed legal representation by all parties. In practice only the Promoter and Corporate objectors used representatives. However we went to great lengths to keep the proceedings user friendly. We required full written disclosure of all evidence in advance including giving parties an opportunity to respond to the other side’s written evidence. No deviation from the terms of the written evidence was then permitted. We also refused to allow any adjournments of hearings once scheduled. Parties knew that if they wanted to negotiate and settle they had an immoveable deadline. Finally we time limited opening and closing statements to not more than 10 minutes per party.

The process of taking evidence is essentially the same whether before the committee or an assessor. The Promoter’s witnesses would be taken first but as they have submitted detailed written statements any examination of them is brief. Objectors can then cross examine witnesses based on issues emerging in their responses to the written evidence. Finally the Promoter can re-examine witnesses in relation only to points arising from cross examination. If there are any objectors, they can at this point present their own cases following the same procedure. They too will be expected to have minimal examination in chief and cross examination by the Promoter is also limited to matters in dispute from the written exchanges. The Committee or Assessor can ask witnesses any questions at any time.

In addition for the later Bills the clerks and I held and chaired what we termed mediation meetings. We brought both sides together and required disclosure of outstanding issues. Just putting parties together in a controlled environment was hugely beneficial. We know this led to a number of agreements and it also reduced the length of evidence given. Throughout we insisted on focussed relevant contributions and committee chairs and the assessor all stopped repetitions and irrelevant contributions.

The Committee’s report either upholds or dismisses, either in whole or part each outstanding objection. The Committee also makes recommendations for amendments at Phase 2 of Consideration Stage based on its decisions on objections.

At Phase 2 only Committee members may lodge amendments to the Bill. The Promoter has no rights to initiate anything. In practice we instructed the Promoter on what was required and they produced drafts to our satisfaction for members of the committee to lodge. On occasions they were most unhappy at some amendments but they always complied (eventually).

Final Stage

At Final Stage the whole Parliament considers the Bill.

Any member of the Parliament may propose an amendment at Final Stage. The proceedings on amendments are similar to those at Consideration Stage, except that all members may vote.

Amendments which the Promoter did not like and which conflicted with the Committee’s report were opposed by the committee convener on behalf of the Promoter. This was seen as a role the convener had to undertake although they were not obliged to eventually vote against the amendment. In practice this worked as the Bills all had government backing. It might be different this session were we to get a large Private Bill.

After debate Parliament votes on whether to pass the Bill. If agreed the Bill is passed and receives Royal Assent. If not agreed to the Bill falls.

For completeness I should add that we now have in Scotland a Transport and Works Act in place. The effect of this is that most construction projects which previously required a Private Bill follow a new procedure with minimal Parliamentary involvement. I am told however that I am not yet completely off the hook and at least one major project has not yet been ruled out as a potential Private Bill.

Other reference information:
Private Bill Process Flowchart

Private Bill Process Flowchart

Written Evidence from the
House of Commons

Note by David Doig (Clerk of Bills, House of Commons)
Introduction

This note is submitted in response to your letter of 21 November 2007 inviting me to attend the meeting of the Committee on Procedures on Wednesday 20 February 2008 to give a briefing on Private Legislation.

In compiling it, I have assumed that you do not require a detailed description of private bill procedure at Westminster. Such a description is readily available in, for example, Erskine May. There is also a comprehensive Manual of Private Bill Procedure, which is primarily for the benefit of those engaged on a day to day basis in the handling of private business. I would be happy to make available a copy of the Manual if you would find it of interest.

Instead, I have focussed on responding to the key questions set out in the annex to your letter.

Before I do so, it is perhaps worth pointing out that the volume of private legislation at Westminster has steadily declined over recent years, falling to an average of between 3 and 10 bills per session – usually at the lower end of that spectrum. This decline is due to a number of factors, chief amongst which was the passing of the Transport and Works Act 1992 (which introduced new and largely non-Parliamentary machinery for handling certain kinds of infrastructure projects which would previously have required authorisation by private bill). It may be of interest to the Committee that, by coincidence, one of the private bills introduced in the current session (2007-08) is the Northern Bank Bill, a measure which, in order to give effect to its main purpose - the regularisation of the Bank’s takeover by a Danish bank - amends legislation on the Northern Ireland statute book.

Key Questions

1. Any piece of legislation requires, if it is to be piloted onto the statute book, a Member who takes responsibility for its Parliamentary process. His or her principal tasks are to speak in favour of the bill, to respond to amendments, and to fix the dates for the various stages of the bill. This so called “Member in charge” will be a Minister in the case of a Government (or Executive) bill and a backbencher in the case of a private Member’s (or backbench) bill. The role of the Member in charge applies equally to both public and private bills. The difference is that, in the case of a private bill, it is for the promoter to identify and approach a suitable Member to take on the role. Where there is an obvious local aspect to the bill, this will usually be the (or one of the) Members with a constituency interest. In other cases the promoters may have to seek out a Member known to have some other connection with the subject matter of the bill, such as a history of public campaigning or expression of views. The Member in charge of a private bill acts on behalf of the promoter, who takes the initiative in proposing dates for the various Parliamentary stages, but otherwise fulfils the same functions as his or her counterpart in relation to a public bill. It is not procedurally necessary for a private bill to be formally presented by or, more accurately, in the name of a Member (and indeed this is not the case at Westminster). But equally there is no reason why such a requirement should not be imposed if it were thought appropriate.

2. Before a private bill can proceed it is reasonable to expect that the promoter will have taken all reasonable steps to draw the bill’s provisions to the attention of those individuals and organisations potentially affected (and, in particular, adversely affected) by them. The main purpose of this obligation (which at Westminster is buttressed by a whole series of detailed requirements set out in Standing Orders, including the placing of newspaper advertisements) is to ensure that those who feel that their private interests will, or might be, harmed by the bill have an adequate opportunity to register their objections. There is no express duty under the Westminster Standing Orders for the promoters to carry out a formal consultation procedure. But in practice, the promoters will normally engage with potential objectors at an early stage in order to establish whether their concerns can be addressed, and if possible accommodated, before the bill is formally introduced. It is ultimately in the interests of all concerned if this degree of agreement can be reached in advance of the start of Parliamentary proceedings, in order to smooth the passage of the bill and to minimise the resource implications in terms of time and costs. Of course, there is no reason why Standing Orders should not formally require promoters to carry out a full consultation procedure before the bill is allowed to be introduced.

3. It is reasonable to assume that a private bill should have a minimum of five stages: formal introduction; second reading stage; committee; report/consideration (further revising stage for all Members); and third reading. There is no standard guide to the interval between stages. But the Assembly might feel that there should be at least a two weeks’ gap, with a longer period required between second reading and committee stage and, perhaps, between the committee and further revising stage. A smaller than two weeks’ interval between the second revising stage and third reading might be thought acceptable.

4. Inserting between introduction and second stage a procedure whereby the committee carried out a preliminary consideration of the bill to determine its appropriateness as a private bill would risk pre-empting and duplicating the committee stage proper, as well as adding an unnecessary additional stage to the process. Any test of appropriateness would be better carried out at the pre-introduction stage, with the responsible Assembly officer forming a view on the basis of legal advice and precedent and, if necessary, making a recommendation for a ruling to the Speaker. The matters raised in questions 4(a) and (b) are best dealt with by the committee on the bill at the committee stage itself.

(a) The promoter should be required to show that there is a need for the bill and that its objects could not be achieved except by primary legislation (not through the planning system, for example).

(b) The committee on the bill is the appropriate forum in which objectors can put their case and, if necessary, propose amendments (see Question 8).

5. The Member in charge of the bill, as described in answer to Question 1, should fulfil this function.

6. The Assembly will need to draw up detailed rules, perhaps enshrined in Standing Orders, covering the procedure for lodging objections to private bills. To answer the specific points raised:

7. The case for referring private bills to the relevant departmental committee is not persuasive. The role of the committee on a private bill is to ensure due process and to exercise a quasi-judicial function in adjudicating between the competing claims of promoters and objectors. Expertise in the subject matter of the bill is not therefore a relevant requirement. (Nor, incidentally, is local knowledge; indeed, at Westminster Members with a constituency interest in a private bill are debarred from serving on the committee scrutinizing it.)

(a) Given the quasi-judicial role of the committee on the bill, there is a good case for allowing both the promoter and objectors legal representation (which at Westminster involves Counsel leading the questioning).

(b) Again, given the quasi-judicial nature of the proceedings, cross-examination of objectors by Counsel for the promoters, and vice versa, would seem to be appropriate. But this does not preclude the Chairman and other members of the committee from intervening with questions of their own.

(c) The parties should be able to call witnesses and produce evidence in support of their case. The committee should also be able to hear the views of the relevant government departments.

(d) and (e) See answer to (b) above. The role of the chairman, in addition to ensuring that the proceedings are conducted fairly in a general sense, includes the duty to satisfy himself or herself that there is, as far as possible, “equality of arms” between promoter and objectors. In particular, given the fact that, by and large, the objectors are likely to be less well resourced and self-confident than the promoters, the chair should stand ready to intervene if, for example, he or she feels that a relevant point is not being put across to the committee with the clarity which it merits.

Nothing said in answer to points (a) to (e) above should be taken as excluding the possibility that the Assembly might prefer to establish a system under which the committee on the bill operates within a non-legal framework, without the use of Counsel- in other words on the same basis as the statutory departmental committees. In considering that option, however, the Assembly will need to consider the implications for the resourcing of the committee, in terms both of staffing and access to advice (which will almost certainly need to include legal advice).

8. The principal role of the committee where there are no objectors should be to satisfy itself that the case for the bill has been made out (in particular that there is no way of achieving the bill’s objectives other than by primary legislation.)

9. There is no obviously correct approach here. There could be advantage in allowing the committee to make amendments directly to the bill so that at the consideration stage Assembly members can see exactly what has been agreed (which will often be the result of concessions by the promoters to the objectors). Whether or not that approach is adopted, there is little merit in limiting the ability to table amendments on consideration to members of the bill committee or the promoters. Any bill, private or public, is the property of the Assembly as a whole and it would be invidious if only certain Members could seek to amend it.

10. As a general guide, the smaller the size of the committee, the more effective it is likely to be in carrying out its role. At Westminster, Private Bill Committees are usually made up of four Members, including a Chairman. It is suggested that this is the sort of figure the Assembly might wish to go for. As regards procedure, the basic principles by which scrutiny committees generally operate are equally relevant to committees on private bills. Chief amongst these are: the pre-eminent role of the Chair; the observance of due process; and the ability to adopt an agreed, informal approach when appropriate in order to facilitate the reaching of formal conclusions. The Assembly will need to decide the circumstances, if any, in which the Chairman votes. One option is for the Chairman to vote once only (either at the same time as the rest of the committee, or in the form of a casting vote when the other Members are tied). Alternatively, the Chairman could be empowered to vote twice, once with the rest of the committee and again, if necessary, to break any deadlock. The option chosen will, of course, depend to some extent on whether the committee is composed of an even or an odd number of Members. A particular issue arises in relation to the membership of the committee. This relates to the question whether Members with a constituency interest in the subject matter of the bill should be debarred from serving on the committee (see answer to Question 7).

11. It is reasonable for the promoters of a private bill to pay a fee in recognition of the additional costs to which they will put the Assembly. Some of these costs (such as staff time) are largely notional since the personnel in question are paid the same irrespective of any extra work arising from the handling of private legislation. Other costs, such as printing, may be more directly identifiable. The Assembly will wish to consider whether the administrative effort required to attribute (where possible) additional costs to specific private bills is worth incurring, or whether it would be simpler to adopt a system of fixed rate fees.

12. There is a good case for such a concessionary rate in these circumstances.

13. See answer to Question 6.

February 2008

Opening Statement of the
Law Society of Northern Ireland
Law Society Crest

20/02/08

1. Introductions – Donald Eakin Law Society President, Alan Hunter Law Society Chief Executive.

2. Firstly we would like to thank you for inviting the Law Society to provide consideration to the issues before the Committee today. This undoubtedly will be the first of many such interactions between the Law Society and the Assembly and we wish to assure you that we are happy to assist the Assembly as is appropriate.

3. In researching and developing our proposed procedure we have sought to ensure that;

a. strong regard is given to due process;

b. procedural fairness is established between the promoter and objector;

c. the special circumstances of any individual do not hinder their participation in the legislative process;

d. strong regard is given to the equality and human rights implications of any Private Bill; and

e. the procedure is time and cost efficient.

4. I intend now to briefly outline the Law Society’s proposed procedure for the enactment of Private Legislation. Once I have finished we will be happy to address any questions the Committee has.

5. Our proposed procedure for the enactment of private legislation consists of four stages, with the Preliminary Stage taking place prior to introduction of a Bill to the Assembly.

6. An important element of our proposal is that the Assembly establish a permanent Private Bill Committee from which ad hoc Sub Committees with responsibility for the scrutiny of any particular Private Bill will be established. Such Sub Committees would be established on the lodgement of a Private Bill and would take the Preliminary and Second Stage of a Private Bill. Sub Committees should be composed of five members of the Private Bill Committee one of whom would act as chair and all of whom would have no conflict of interest with the relevant Private Bill.

7. This Committee system is proposed as it allows the expertise of members of the permanent Private Bill Committee to develop over time whilst avoiding members scrutinising Bills with which they have a conflict of interest.

Preliminary Stage

8. On lodging a Bill with the Assembly we propose that the promoter be required to comply with a number of preliminary requirements. Firstly the promoter should provide a copy of the Bill and Explanatory Memorandum both in publishable form. Secondly the Promoter should provide evidence that the Bill is exclusively private in content. Thirdly the promoter should provide evidence that the Bill is intended to meet a genuine need of the promoter’s and that the Private Bill is the most appropriate mechanism available to meet that need. Fourthly the promoter should provide evidence that they have carried out a consultation exercise with prospectively affected parties, and that they have paid due regard to the views expressed by those consulted. Fifthly the promoter should provide evidence that they have given adequate consideration to any equality or human rights implications of their proposed Bill. The promoter should also provide a declaration from the Speaker of the Assembly that the proposed Bill is within the Assembly’s legislative competence, including that the Bill is compliant with the European Convention on Human Rights and is non-discriminatory. Finally the promoter should provide the Assembly with evidence of how he intends to notify prospectively affected parties of their right to object and how they can do so. From the date of the Bill’s lodgement objectors should have sixty days in which to lodge an objection.

9. Once a Sub Committee has been formed it will meet to consider if the promoter has complied with all preliminary requirements just discussed. If the Sub Committee find the promoter has complied with all preliminary requirements they will produce a report explaining the basis of their determination and the Chair will submit the Bill to the Speaker for introduction to the Assembly. If the Sub Committee determine that a promoter has not complied with all preliminary requirements they will produce a report explaining such and will table this report before the Assembly for approval.

First Stage

10. The First Stage of our proposed procedure includes the introduction of the Bill to the Assembly by the Sub Committee Chair and a debate on the general principles of the Bill. One week prior to the introduction copies of the Bill, its Explanatory Memorandum and copies of the Sub Committee’s preliminary report should be made available to all MLAs. The Sub Committee’s preliminary report will provide background information to facilitate informed debate on the Bill’s general principles.

11. On introduction to the Assembly the Chair of the Sub Committee will explain the content of the Bill and table a motion that the Bill proceed to Second Stage. MLAs opposed to the Bill’s advancement may move an amendment to the motion stating reasons for the Bill not to proceed.

Second Stage

12. At Second Stage the Sub Committee will firstly review all evidence submitted in relation to the Bill. This includes evidence provided by the promoter, all objections lodged and any further submissions. To assist them in their deliberations the Sub Committee may appoint a Special Adviser.

13. The Sub Committee should hold oral evidence sessions to assist them in reviewing a Private Bill. It is recommended that the Sub Committee be required to invite the promoter to provide oral evidence. As regards objectors it is recommended that the Sub Committee should group objectors of a similar nature and invite a range of objectors representing such groups to ensure they fully understand the nature of all objections lodged against the Bill. Both promoter and objector should be allowed to be legally represented and to cross-examine one another. It is also proposed that they both be permitted to call witnesses. However the Sub Committee should have discretion to refuse to hear a witness, to be exercised when it is considered necessary to do so.

14. During oral evidence sessions the Sub Committee should pay particular regard to ensuring procedural fairness between the promoter and the objector.

15. The Sub Committee should also pay due regard to the special circumstances of any objector which may inhibit their participation in the Sub Committee’s proceedings. For instance where special circumstances such as an objector’s age or disability would make the prospect of cross-examination a disincentive for their participation, the Sub Committee should direct that cross-examination be through the Chair.

16. Once the Sub-Committee has gathered all appropriate evidence, with reference to the interests of the promoter, the objectors and the general public it will review the Bill clause by clause. It is proposed that the Sub-Committee be permitted to amend the Bill as it sees fit. Once the Sub-Committee has decided upon an amended version of the Bill, the Sub-Committee will ensure copies of the Bill as amended and a revised Explanatory Memorandum are deposited with the Assembly Clerk in time for inclusion on a Notice Paper circulated at least one week before the day appointed for the Bill’s Third Stage.

Third Stage

17. Prior to the Bill’s Third Stage it is recommended that individual MLAs be permitted to propose further amendments to the amended version of the Bill. At the Third Stage it is recommended that the Chairperson of the Sub-Committee re-introduce the amended version of the Bill to the Assembly. The Committee on Procedures may wish to consider whether it would be prudent to oblige the Chairperson to provide reasons for amendments made to the Bill by the Sub Committee and to demonstrate how the Sub Committee has taken on board the views of the promoter, objectors and the general public interest. Once the Bill has been re-introduced it is recommended that any further amendments proposed to the Bill then be considered and voted upon. Once all such amendments have been considered and voted upon the Assembly should debate the motion “That the Bill do now pass”. The result of this vote will then determine whether the Bill succeeds or fails.

18. Once a Private Bill has been passed by the Assembly it should be subject to the same requirements as a Public Bill under Standing Order 38.

Concluding Comments

19. In our proposed procedure we have sought to pay due regard to human rights concerns and to ensuring procedural fairness for both the promoter and objector. A main concern of the Law Society is to ensure the participation of individuals who due to special circumstances such as age or disability are prevented from participating fully in the process of Private Legislation. I would therefore like to finish by stressing the need to ensure that such individuals are firstly adequately informed of their right to raise an objection, secondly that adequate provision is made to assist such individuals in raising their objection and finally that procedures ensure that such individuals are able to participate equally in the Sub Committee’s evidence proceedings.

Proposed Procedure

Proposed Procedure

Written Evidence from
Derry City Council

Introduction

1. I am the City Secretary and Solicitor to Derry City Council, a position newly created in 1991 and I am the first incumbent. This is a position that remains unique in local government in Northern Ireland. I am a solicitor of some 24 years standing and worked in private practice for some five years, followed by almost three years as a legal adviser to all HPSS bodies in Northern Ireland. I also provide legal advice and legal services to a range of associated bodies and organisations and to other borough and district Councils, on a regular but ad hoc basis upon request.

2. There exists recent experience in Derry City Council of addressing issues relating to private legislation, but from the perspective of seeking to have a piece of private legislation, namely, the Brooke’s Park (Londonderry) Act 1899, repealed. This experience is set out in greater detail below.

3. The Committee’s Terms of reference for this Inquiry refers to private legislation. It is important to be clear on the distinction between public and private legislation. As a general rule, any measure, the object of which is to alter the general law or that deals with public revenues, with the general administration of justice or with the constitution or composition of local authorities, councils or other public authorities should be introduced as a Public Bill in the assembly; whereas any measure that confers powers or benefits on a particular person or body should be introduced as a Private Bill.

4. It is also important to distinguish between three species of private legislation, namely, Local Acts, Private Acts and Personal Acts. The first of these confers powers on a local authority or Council; the second confers powers on a corporate body such as a bank or harbour authority, while the last confers powers on a private individual.

Local Acts

5. Quite a number of Local Acts affecting local government authorities in Northern Ireland were passed by both Parliament at Westminster and by the former Northern Ireland Parliament. Many of these are still in force, such as, the Londonderry Corporation Act 1931. This activity was particularly prevalent in the period prior to local government re-organisation in 1973 and particularly in respect of the then Londonderry and Belfast Corporations. However, with the wholesale transfer of powers and functions away from local government in 1973, the scope, or need, for Local Acts was vastly reduced and, in any event, very often powers that might have been conferred on a particular Council under a Local Act, were granted or amended by statutory rule after 1973.

Private Acts

6. These, traditionally, were required to authorise the construction of works and to confer the necessary ancillary powers for that purpose, notably, powers to compulsorily acquire land in connection with railways, tramways, canals, harbour works and marinas, and so on. The other main use for Private Acts was to confer general powers on corporate bodies: a relatively recent example is the Ulster Bank Act 1992 passed in Westminster. However, there is no reason why, in the former category of Private Acts, such projects could not be authorised under Ministerial Order pursuant to a Public Act vesting the necessary enabling powers in the Minister.

Personal Acts

7. Today, any perceived need for these Acts will be extremely rare relating, as they do, to the personal affairs of an individual. In the 20 year period from 1977 to 1997, only six Personal Acts were enacted at Westminster, all of which were marriage-enabling Acts, that is, Acts authorising the marriage of persons within prohibited degrees of affinity. Any need for Personal Acts in even those limited circumstances was greatly reduced by the enactment of the Marriage (Prohibited Degrees of Relationship) Act 1986 – a Public Act.

Local Government

8. Turning specifically to the position of local government and private legislation in Northern Ireland, Sections 101-103 of the Local government Act (Northern Ireland) 1972 provide a power to all Councils in Northern Ireland to promote, or oppose, any Local or Personal Bill so long as the Council is satisfied that it is expedient to do so, subject to the Council passing a Special Resolution to do so, at two separate stages, that is a vote in favour of the Resolution to promote or oppose a Local Bill, passed by not less than two thirds of the Councillors present at a specially convened meeting of the Council of which not less than 10 days’ notice had been published in two newspapers circulating in the district of the Council, in addition to the normal notice required to convene a meeting of the Council.

9. Following re-organisation of local government in England and Wales in 1972, DoE in that jurisdiction recognised the need to rationalise the vast amount of Local Acts that were in existence. This was because, in many cases, Local Acts had been overtaken by general law contained in Public Acts because they were no longer applicable in modern circumstances either because the powers contained in Local Acts were spent or because their legislative provisions represented the type of law that Parliament was not now inclined to enact. DoE in Northern Ireland commenced on a similar rationalisation process around 1990 but this was never completed.

10. The Joint Committee on Private Bill Procedure, in a report in 1988, made a number of interesting proposals that might interest this Inquiry:

(1) it proposed changes in practice to reduce the volume of private business coming to Parliament -

(2) it proposed the establishment of a non-Parliamentary authorisation (Ministerial Orders) procedure for certain types of proposals for which private legislation was currently required – harbour measures, railways, and so on;

(3) Parliamentary procedures for Private Bills should be streamlined and improved

For ‘Parliament’, the Committee might agree, it is entirely possible to read ‘Northern Ireland Assembly’ (subject always to the subject matter of the Public or private bill in question being within the legislative competence of the Assembly).

The effect of these deliberations and proposals over the past 20 years in England and Wales has been that, in practice, the promotion of private legislation by local authorities is now rare. Further, in practice, in Northern Ireland, there have been no Local Acts enacted in relation to any Council in Northern Ireland for a considerable number of years and none enacted, to my knowledge, since 1973 when the last major re-organisation of local government occurred in Northern Ireland.

Derry City Council and Private Legislation

11. The existence of the Brooke’s Park (Londonderry) Act 1899 has, on more than one occasion, caused a meritorious development proposal to be aborted or not pursued. It also led to a major judicial review proceeding in the High Court in the mid-1980s, the outcome of which was an inability of the City Council to build new civic offices in Brooke Park and prevented those offices being built in a new location for 10 years. However, the catalyst that caused the City Council to seriously consider promoting a Local Bill to repeal the 1899 Private Act was that the Act prevented the Council from granting an interest in part of the land that fell within the ambit of the Act to the then Western Health and Social Services Board due to a restriction imposed by the Act on the use to which the land could be put. The Board had wished to develop a new generation health and social care facility on the site to serve the west bank of the Foyle. This experience was instructive as it necessitated the Council addressing many of the issues that will engage the Committee in this Inquiry:

(1) Method

In order to have the Private Act of 1899 repealed, the Council would have been required to promote a Local Bill to do so, pursuant to its power contained in Section 101 of the Local Government Act (Northern Ireland) 1972;

However, the full range of the potential avenues open to the Council to achieve this objective were as follows –

The Council determined to pursue further the option of promoting a Local Bill at Westminster.

(2) Timescale

The Council took advice from Sharpe Pritchard, Solicitors and Parliamentary Agents in London. It became apparent that the likely timescale to achieve enactment of the repealing Local Act was 15 months, subject to the Council starting its processes immediately in March or April in order to meet the deadline to have the Local Bill deposited in Westminster by 28 November. If this date were to have been missed a further 12 months would have been added onto the timescale. The timescale of 15 months was also subject to there being no objection or little objection of substance. If this were not the case, and substantive objection were received, the timescale would have been considerably prolonged – by up to 2-3 years.

(2) Costs

The costs of the exercise were estimated, at the upper end, if substantive objections were received, to be in the region of £150,000. However, if the Local Bill were relatively simple to draft and there was little or no opposition or objection, the estimated costs were in the region of £60,000. (In both cases, these figures were inclusive of Parliamentary fees in the region of £25,000).

(3) Consultation

For a local Council in Northern Ireland to resolve to promote, or oppose, a Local Bill, it must hold two specially convened meetings of the Council, at different stages of the process, of which at least 10 days’ notice has been advertised in newspapers circulating in the district of the Council, stating the business to be transacted at the meeting, in addition to the normal notice required to be given to lawfully convene a meeting of the Council. In addition, if the necessary Special Resolution is adopted by the Council, the Council must publish certain prescribed Notices in local newspapers and in the Belfast Gazette on or before 11 December, giving a concise summary of the purposes of the Bill and state that, on or after 4 December, a copy of the Bill will be available for inspection and a copy obtained. Further, since, in all likelihood, a decision, or proposed decision of a Council in Northern Ireland to promote a Local Bill, either to seek the making of local or private legislative provision or to repeal existing local or private legislative provision will probably be regarded as a policy decision, the Council will be required to equality-proof the decision even to the extent of conducting a full-blown Equality Impact Assessment and the rigorous consultation requirements that will involve.

(4) Parliamentary Agents

Had Derry City Council proceeded with its proposal for a Local Act to repeal the Private Act of 1899, it would have retained the services of Parliamentary Agents. This is the invariable practice in Westminster although, I understand, it may not be the case in Leinster House. My own view is that there is undoubted merit in availing of the services of specialised lawyers in such an enterprise to act as the agents of the promoters of a Local or Private Bill; indeed, it seems to me inevitable that such agents would appear and offer their services to promoters. Of course, if, as is likely, the volume of private Bills coming to the Assembly would be fairly minimal, there could well be no market for such services in Northern Ireland. However, in those circumstances, promoters would inevitably seek the services of their solicitors in any event. The fact that, in Westminster at least, Parliamentary Agents can be held personally liable for any non-compliance with the Standing Orders of whatever House of Parliament is dealing with a particular Local or Private Bill seems to me to be a very important factor in favour of such agents.

Nothing further occurs.

Damien J. McMahon, LLB.,
City Solicitor
Derry.

February 2008

Written Evidence from the
National Trust

Written Evidence from the National Trust

Appendix 4

Other Papers

Research and Library Servioces

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Research Paper 103
15 February 2008

Procedures Governing Private
Legislation in Other Legislatures

Claire Cassidy

This briefing paper is intended to facilitate Members in their understanding and consideration of procedures governing Private Legislation. It outlines procedures on Private Legislation in other legislatures and highlights any potential issues for consideration.

Library Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.

1. Introduction

Private legislation is widely recognised as a complex area however it should not be confused with private members’ bills which are public bills. According to Erskine May private legislation is,[1]

A special kind of legislation for conferring particular powers or benefits on any persons or body of persons-including individuals, local authorities, companies, or corporation-in excess of or in conflict with the general law. As such, it is to be distinguished from public general legislation, which is applicable to the general community and is treated differently in Parliament.

This paper outlines the procedures governing private legislation in the UK Parliament, the Dail Éireann and the Seanad Éireann, the Scottish Parliament and the Parliament in Canada. Each section outlines the exact processes a private bill would pass through in the respective Legislature. Finally, from these procedures potential issues for consideration will be detailed to facilitate Members with their consideration on this matter.

2. UK Parliament

All private bills in the UK Parliament are founded on a petition in the House of Commons with half the bills being allotted to the House of Commons and half to the House of Lords. The subsequent proceedings and standing orders upon private bills in the two Houses are therefore similar in nature.[2]

The procedure involved when passing a private bill in the UK Parliament is summarised in the diagram provided at Annex A. It follows a chronological order of events in preparing for a typical private bill. These are outlined below.

2.1 Petitions for Private Bill

2.2 Compliance with Standing Orders

2.3 Presentation of a Bill

2.4 Passage of Private Bill

2.1 Petitions for Private Bill

Standing Orders 38 and 39 of the House of Commons outline the procedures for deposits of bills. For every private bill, in whichever House it is eventually presented, a petition signed by the parties who are promoters of the bill, must be deposited in the Private Bill Office of the House of Commons before 27 November in each year, with a copy of the proposed bill annexed. A printed copy of every such bill must also be deposited on or before the same date in the Office of the Clerk of the Parliaments in the House of Lords.[3]

The drafting of private bills and their conduct through the two Houses is a complex process, and the promoters entrust it to a firm of parliamentary agents, who are the legal representatives of the promoters for the purpose of dealing with Parliament. There are several firms who have satisfied the Speaker with their knowledge of private bill procedure and who alone may accept fees for taking a bill through Parliament.[4]

Copies of the bill must to be deposited with various interested authorities and made available to Members and Officers of the House. Members of the public may purchase copies of bills from parliamentary agents. In cases where public works are to be constructed for example, railways, roads or bridges Government Departments must also be notified.[5]

2.2 Compliance with Standing Orders

There are a number of requirements which must be complied with before a private bill can be presented and these are laid out in the Standing Orders for each House. The Officials who ensure the requirements are adhered to are the Examiners, the Clerks of Bills for each House. The requirements to be complied with before the presentation of the bill are arranged in the following order:[6]

Compliance with the standing orders must be proven with respect to every private bill.[7]

2.3 Presentation of a Bill

Standing Order 163[8] of the House of Commons outlines the procedures involved in the presentation of a bill. Where, in respect of a petition for a private bill, the Examiner has reported that the standing orders have been complied with, the bill itself must be presented to the House on 21 January. A private bill is presented to the House by being deposited in the Private Bill Office. It must be laid upon the Table of the House by the clerk in that office on the next sitting day.[9]

2.4 Passage of Private Bill

The passage of private bills in the UK Parliament is subjected to a number of stages which are outlined below.

(i) First and Second Reading

(ii) Committee Stage

(iii) Consideration and Third Reading

(iv) Passing to the House of Lords

(i) First and Second Reading

The Chairman of the Ways and Means in the Commons and the Lord Chairman of Committees in the Lords decide which bills start in the Commons and which in the Lords.[10]

Standing Order 166 of the House of Commons describes how a private bill is deemed to have been read the first time by being ‘laid on the Table of the House’. It is then recorded as having been read the first time and ordered to be read a second time. Standing Order 170 states there must not be fewer than four days between the first and second reading of a private bill.[11]

The second reading of a private bill takes the form of a debate. Since a private bill is founded upon allegations of fact which have not yet been proved, in agreeing to its second reading the House affirms the principle of the bill conditionally. If the second reading is agreed to without division and the Examiners are content all Standing Orders have been adhered to up until this point, a private bill stands referred under Standing Order 109 to the Committee of Selection.[12]

A bill may be referred to the Examiners and may not be allowed to proceed until compliance with standing orders has occurred or the Standing Orders Committee has resolved that such requirements are no longer needed.[13]

The next process in which a private bill may pass through is determined by whether or not a petition[14] has been lodged against the bill. Any individual or group of individuals or organisation directly affected by the provisions of a private bill may petition against it.

As a private bill starts in one House and then passes through the other House, a petitioner may lodge a petition in either House or both. However each House has a separate format for petitioning therefore petitions should be addressed to the appropriate House. A petition cannot be deposited until the bill has been formally presented to the House. Petitions against bills starting in the Commons should be lodged on or before the 30 January, 10 days after the first reading of the bill on the 21 January. A £20 fee is charged to the petitioners on the presentation of a petition against a bill.[15]

(ii) Committee Stage

At this point the bill is either committed to the Unopposed Bill Committee or the Opposed Bill Committee. If there are no petitions against a bill it is referred to an unopposed bill committee consisting of 5 members. These members are the Chairman or one of the Deputy Chairmen of Ways and Means and 4 members from a panel nominated by the Committee of Selection at the beginning of every session. Standing Order 132 governs the constitution of the committee on unopposed bills.[16]

Proceedings in the committee on unopposed bills are briefer and less formal than those of a committee on opposed bills. However because there are no opponents to the bill this committee has capacity to ensure, in its consideration of the provisions of the bill, that the interests of the public are properly safeguarded and that the bill conforms with the standing orders of the House.[17]

As was mentioned earlier, the bill may be committed to the Opposed Bill Committee however this will only occur if there has been a petition presented against the bill in accordance with Standing Order 171A. Committees on opposed bills consist of 4 impartial Members. One of the first proceedings of this committee would be to call upon all parties involved with the bill to give evidence. For example, agents in support of a petition against a bill may appear before the committee to present their arguments.[18]

The traditional procedure adopted by a private bill committee, when the principle of the bill was opposed by petitioners, was to consider first the preamble of the bill and subsequently go through the individual clauses. Recently however many committees have followed a more flexible procedure allowing them to deal first with the points contested by the petitioners, which may relate partly to the preamble and partly to individual clauses and to take decisions on such matters before passing onto the unopposed clauses.[19]

In either case, whether the bill has been committed to an unopposed bill committee or an opposed bill committee, the committee will sit in a semi-judicial capacity. The function of the committee will be to decide whether and in what form the bill should proceed and to consider whether the case for having a bill has been made. The case will either be proved or not proved.

If the case has not been proved this is tantamount to rejection of the whole bill. If the case has been proved, the committee states that the declared purpose of the bill has been established as proper. It will then consider whether any amendment is necessary, for example if it appears that the promoters have asked for excessive powers the committee may look to limit the scope of the bill.[20]

(iii) Consideration and Third Reading

After the committee stage the bill is reprinted if it has been amended, and is put down again “after prayers” at the beginning of the sitting. If a bill has not been amended, it is ordered to be read the third time. The third reading will normally follow a few days later.[21]

Any amendments made by the House on the consideration of a bill, or verbal amendments on the third reading, are entered by the clerk in the Private Bill Office upon the House copy of the bill. When this stage has been completed a private bill is sent to the House of Lords after being endorsed by the Clerk of the House.[22]

With private bills, it is normal for any that have not been completed before the end of the session to be “suspended”. If the promoters apply, the House may decide to permit a bill to proceed in the next session.[23]

(iv) Passing to the House of Lords

The bill then goes to the Lords, where it goes through much the same process. If the Lords amend the bill the Commons must consider their amendments. The bill is then ready to receive the Royal Assent. Proceedings on Royal Assent to private Acts are identical with those for public and general Acts.[24]

3. ROI

The Standing Orders of the Dail and Seanad governing Private Business (1939) state,[25]

Every bill promoted for the particular interest or benefit of any person or locality as distinguished from a measure of public policy shall be treated as a private bill.

The procedures involved when passing a private bill in the Dail or Seanad follow a chronological order of events which are broadly categorised below (Also see Annex B).

3.1 Promotion of Bill

In the Oireachtas Éireann, proceedings begin with the promotion of a private bill. A notice is published in a number of local newspapers and any documents relating to the bill, for example plans, references or maps are deposited in such places outlined in Standing Order 17. Copies of the bill should then be deposited in the Private Bill Office.[26]

3.2 Examination of Bill

Examiners will then scrutinise the proposed private bill along with the relevant documents to ensure they comply with standing orders. If the Examiner has reported non-compliance with the standing orders, the report will be referred to the Joint Committee on Standing Orders. If the Examiner has reported compliance to both Houses, the bill can be laid upon the Table of the Seanad.[27]

3.3 Passage of Bill

The passage of private bills in the Oireachtas Éireann is subjected to a number of stages which are outlined below.

(i) First & Second Stage - First and Second Reading

(ii) Third Stage - Committee

(iii) Fourth Stage - Report

(iv) Fifth Stage

(i) First and Second Reading

Once the bill is laid upon the Table of the Seanad it is deemed to be read the First Time. The Second Stage of the bill takes the form of a debate which will determine if the bill proceeds any further. The Dail’s concurrence on the motion is then requested.[28]

Petitions against a private bill can be deposited in the Private Bill Office no later than two weeks after the bill has passed the Second Stage in the Seanad.[29]

(ii) Third Stage

Once the Dail has concurred with the motion, the Seanad will refer the bill to the Joint Committee specifically established to consider the bill. The purpose of this Committee is to consider the bill, calling on promoters or objectors of the bill to give evidence before them. After the Committee has considered all the evidence, it then prepares a report on the proposed bill.[30]

(iii) Fourth Stage

Once the Committee has completed their report it is laid upon the Table of both Houses. This is to enable a Member if they so wish, to put down any amendments to the bill. At this stage the Speaker in the Seanad may rule that such amendments be considered by the former Joint Committee on the bill. If this occurs the Committee will consider any amendments and then report back to both Houses.[31]

(iv) Fifth Stage

No amendment shall be made in the Fifth Stage so once the bill has passed this stage in the Seanad, it is sent to the Dail. At this point the Fourth and Fifth Stage will be taken as the earlier Stages will have been deemed to have been passed. If the Dail amends the bill in any way, it will be passed back to the Seanad. [32]

When the bill has finally been passed by both Houses it will be printed ready for the President’s Signature, then translated into Irish or English as the case may be.

4. Scotland

The Rules that provide the procedural framework for the passage of private bills in the Scottish Parliament are set out in chapter 9A of the Standing Orders. A private bill according to Rule 9A.1.1 of the Standing Orders is,[33]

A Bill introduced for the purpose of obtaining for an individual person, body corporate or unincorporated association of persons (“the promoter”) particular powers or benefits in excess of or in conflict with the general law, and includes a bill relating to the estate, property, status or style, or otherwise relating to the personal affairs, of the promoter.

A Private Bill to which this paragraph applies is a Private Bill which seeks to authorise the construction or alteration of such classes of works as may be determined by the Presiding Officer or a Private Bill which seeks to authorise the compulsory acquisition or use of any land or buildings.

Private bills are different to public bills in that they involve measures sought in the private interests of the promoter and to which others may object also in a private capacity. The role of the Parliament remains to legislate but, because of the nature of the issues in question it is also to decide between competing private interests. Therefore the procedures that have been put in place regarding private bills are both parliamentary and quasi-judicial in character.[34]

The procedures involved when passing a private bill in the Scottish Parliament can be seen in the diagram provided at Annex C. It follows a chronological order of events in preparing for a typical bill being introduced to the passing of the bill itself. The chronological order is:

4.1 Preparations for Introduction of a Private Bill

The procedures prior to a private bill being lodged for introduction include the arrangements for notification and advertisement, as well as the requirements in relation to accompanying documents to the bill. The purpose of this is to indicate the expectations of a Private Bill Committee and also to minimise the delay of a Bill passage.[35]

The procedures involved in the preparation for the introduction of a private bill all lead up to the actual introduction of the bill itself. The bill is introduced by being lodged with the Clerk and must be signed by, or on behalf of the promoter. The signed bill should therefore be lodged in hard copy either in person by the promoter or by post. At the time the bill is introduced, the promoter must also pay whatever fee for introduction of the bill has been determined by the Scottish Parliament Corporate Body (SPCB).[36]

If the private bill relates to charitable, religious, educational, literary or scientific purposes whereby no profit or advantage is derived, or is promoted by a person other than a local authority, who appear unlikely to derive substantial personal or corporate gain a fee of £1250 will be charged. Any other bill which doesn’t fall within the areas mentioned will be charged a fee of £5000.[37]

4.2 Lodging of Objections

Under the Standing Orders of the Scottish Parliament, any individual or group of individuals have the right to object. Rule 9A.6.1 states: [38]

An individual person who, or a body corporate or unincorporated association of persons which, considers that his, her or its interests would be adversely affected by a Private Bill introduced in the Parliament (an “objector”) may lodge an objection to the Private Bill during the objection period.

Under these Standing Orders “the objection period” is a period of 60 days following the bill being introduced. The Standing Orders relating to the lodging of an objection also explain in detail the admissibility of objections, the means by which an objector can lodge an objection and also the lodging fee. [39]

4.3 Private Bill Committee

Within the 60 day objection period, formal steps are taken to establish a Private Bill Committee. Like other committees of the Scottish Parliament, a Private Bill Committee is established by a resolution of the Parliament. If there are two or more private bills in progress at the same time, it is expected that separate committees will be established for each. However there may be occasions when it is appropriate to establish a single committee to deal with two or more closely related private bills introduced at around the same time.[40]

The Standing Orders of the Scottish Parliament relating to a Private Bill Committee discuss in detail the establishment, remit, duration and membership of such a committee. There are various constraints discussed regarding membership, for example a Member of the Scottish Parliament (MSP) may not be appointed to a committee if they live within an area in which works are proposed to be authorised by, or under the bill. Quorum and attendance at meetings and clerks to the committee are also discussed in detail. [41]

4.4 Stages of a Bill

Private bills in the Scottish Parliament are subjected to a three stage process which are:

(i) Preliminary Stage

(ii) Consideration Stage

(iii) Final Stage.

(i) Preliminary Stage

This stage begins once the bill has been printed and a Private Bill Committee established. The committee’s role is to produce a report on whether to recommend to the Parliament that the general principles of the bill should be agreed to and the bill should proceed as a private bill. After the Preliminary Stage Report has been published, the Parliamentary Bureau will recommend a time in the Parliament’s Business Programme for a Preliminary Stage debate.

The Preliminary Stage debate takes place on a motion, reflecting the recommendations of the report. If a motion is agreed to by the Parliament the bill proceeds to Consideration Stage, if such a motion is not agreed to, the bill falls.[42]

(ii) Consideration Stage

If the bill is approved by Parliament at the Preliminary Stage debate it will then proceed on to Consideration Stage. The overall purpose of Consideration Stage is to consider the detail of the bill. This stage has two distinct phases, the first involves the committee meeting in a quasi-judicial capacity to hear evidence on the bill and on objections to it.[43]

The second phase involves the committee meeting in a legislative capacity to consider and dispose of any amendments. If any amendment is agreed to, the bill must be re-printed in the amended form. There must be an interval of at least 5 sitting days between each phase of the Consideration Stage.[44]

(iii) Final Stage

Final Stage takes place at a meeting of the Parliament. If the bill has been amended at Consideration Stage, there must be 9 whole sitting days between the last day at that Stage and the day on which Final Stage takes place. Amendments for Final Stage may be lodged as soon as the Consideration Stage in completed. After proceedings on the amendments at the Final Stage are concluded, the Parliament must decide whether to pass the bill.[45]

The Convenor of the Private Bill Committee moves the motion and a general debate on the bill may take place. If there is a division on the motion to pass the bill, the result is only valid if at least a quarter of MSPs vote. If the majority votes against the bill, or the result is invalid, the bill falls. A bill once passed, may be submitted for Royal Assent after the expiry of a 4 week period in which the bill is subject to legal challenge. The Presiding Officer may then submit the bill for Royal Assent.[46]

5. Procedures Governing Private Legislation in the Parliament of Canada

Procedures governing private legislation in the Parliament of Canada are based on the Westminster model whereby they must have three separate readings and be given a detailed study by a committee. In the Canadian Parliament, private bills can originate in either the House of Commons or the Senate. Private bills are subject to special rules in both Houses of Parliament and they must meet certain parliamentary requirements that distinguish them procedurally from all other types of bills.[47]

A petition must be filed with the Clerk of Petitions who agrees that it conforms to the Standing Orders of the House of Commons and the practices of the House. One such requirement is that notice of the bill must be published in the Canada Gazette.[48]

Once the petition for a private bill has been received an Official of the House acting as the Examiner of Petitions for Private Bills, examines it to ensure that the requirements have been met regarding notice and the number of times it has been published in the Canada Gazette. If the petition has not met certain requirements, it is sent to the Standing Committee on Procedure and House Affairs for further examination before being put before the House.[49]

Following first reading, it is ordered for second reading and is considered during Private Members’ Business followed by passage by the Senate. If the Senate has requested any amendments these must pass through the House of Commons before being passed for Royal Assent.[50]

Four fundamental principles underlie and define private bill procedure in the Canadian Parliament which are set out in the Standing Orders.[51] These are:

6. Issues For Consideration

There are a number of issues which could potentially be considered when reviewing the procedures governing private bills in other legislatures, some of which are outlined below.

Since promoters of a private bill are making an attempt to change the law privately for their own interests, it could be argued they should be required to pay a fee relating to the cost of processing a private bill. The Scottish Consumer Council highlighted in their evidence on private legislation submitted to the Scottish Procedures Committee, such a system may provide an incentive for promoters to try to meet objections by negotiation thereby avoiding a lengthy hearing.[52]

If a fee for lodging an objection to a private bill was established this may deter certain individuals from objecting to a bill. However, establishing such a fee may also be viewed as discriminatory. The requirement to pay a fee for an objection may be viewed as infringement of the human rights of potential objectors, who have a right to a fair hearing in the determination of their civil rights under the Human Rights Act 1998.[53] It may also be argued charging no fee for objecting to a bill may encourage more objectors to voice their concerns which may have an adverse affect on the length and cost of processing a bill.

In the Scottish Parliament during the cross examination of a bill at committee stage, the objector and/or the promoter are invited to give evidence. However it is a matter for the promoter and the objector to decide whether or not to employ legal representation to appear for them but there is no obligation to do so. It is expected however that each party that does choose this form of representation will bear the cost of doing so.

ANNEX A Procedures in UK Parliament governing Private Bills

ANNEX A Procedures in UK Parliament governing Private Bills

ANNEX B Procedures in ROI governing Private Bills

ANNEX B Procedures in ROI governing Private Bills

ANNEX C Procedures in Scottish Parliament governing Private Bills

ANNEX C Procedures in Scottish Parliament governing Private Bills

[1]McKay, W.R. 23rd Ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament. Butterworths. London: 2004 Pg 965

[2]McKay, W.R. 23rd Ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament. Butterworths. London: 2004 Pg 1053

[3] House of Commons Fact sheet on Private Bills, February 2005 Pg 2 http://www.parliament.uk/documents/upload/L04.pdf

[4] Ibid, Pg 2

[5] Ibid, Pg 2

[6]McKay, W.R. 23rd Ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament. Butterworths. London: 2004 Pg 982

[7] Ibid, Pg 982

[8] Standing Order 163. House of Commons Standing Orders – Private Business 2005 http://www.publications.parliament.uk/pa/cm200506/cmstords/441/pvtbs25.htm

[9] McKay, W.R. 23rd Ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament. Butterworths. London: 2004, Pg 1014

[10] House of Commons Fact sheet on Private Bills, February 2005 Pg 4 http://www.parliament.uk/documents/upload/L04.pdf

[11] Standing Order 170. House of Commons Standing Orders – Private Business 2005 http://www.publications.parliament.uk/pa/cm200506/cmstords/441/pvtbs25.htm#a192

[12]McKay, W.R. 23rd Ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament. Butterworths. London: 2004, 1023

[13] Ibid, Pg 1020

[14]A petition is a summary of objections to a private bill. It is a request to the House of Commons for petitioners to be allowed to argue their case.

[15] Guidance on how to Petition against a Private Bill in the House of Commons, Pg 4 http://www.parliament.uk/documents/upload/CommonsPetitioningKit.pdf

[16] House of Commons Fact sheet on Private Bills, February 2005 Pg 4 http://www.parliament.uk/documents/upload/L04.pdf

[17]McKay, W.R. 23rd Ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament. Butterworths. London: 2004 Pg 1032

[18] Ibid, 1034

[19] Id

[20] Id

[21] House of Commons Fact sheet on Private Bills, February 2005 Pg 5 http://www.parliament.uk/documents/upload/L04.pdf

[22]McKay, W.R. 23rd Ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament. Butterworths. London: 2004 Pg 1047

[23] House of Commons Fact sheet on Private Bills, February 2005 Pg 6 http://www.parliament.uk/documents/upload/L04.pdf

[24]McKay, W.R. 23rd Ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament. Butterworths. London: 2004, Pg 1067

[25] Standing Orders of the Dail and Seanad governing Private Business 1939

[26] nformation on Private Bill Procedure in the Oireachtas Éireann gained by correspondence with

[27] Ibid, Pg 5

[28] Ibid, Pg 6

[29] Ibid

[30] Ibid, Pg 8

[31] Ibid, Pg 11

[32] Ibid, Pg 12

[33] Rule 9A.1.1. Standing Orders of the Scottish Parliament, 2007 http://www.scottish.parliament.uk/business/so/sto-4.htm#9a

[34] The Scottish Parliaments Guidance on Private Bills, Para 1.2 http://www.scottish.parliament.uk/business/bills/billguidance/gprb-1.htm#1_6

[35] Ibid, Para 2.1

[36] Ibid, Para 2.56

[37] Ibid

[38] Rule 9A.6.1. Standing Orders of the Scottish Parliament, 2007 http://www.scottish.parliament.uk/business/so/sto-4.htm#9a

[39] Ibid, Rule 9A.6.2

[40] The Scottish Parliament’s Guidance on Private Bills, Para 4.1 http://www.scottish.parliament.uk/business/bills/billguidance/gprb-1.htm#P499_43157

[41] Ibid, Para 4.7

[42] Ibid

[43] Ibid

[44] Ibid

[45] Ibid

[46] Ibid, Para 5.71

[47] Marleau, R. & Montpetit, C. House of Commons Procedure and Practice. Cheneliere McGraw-Hill, Canada 2000 http://www.parl.gc.ca/MarleauMontpetit/DocumentViewer.aspx?DocId=1001&Sec=Ch23&Seq=1&Lang=E

[48] The Canada Gazette is a periodical publication of the Government.

[49] Ibid

[50] Ibid

[51] Chapter XV Standing Orders of the House of Commons of the Canadian Parliament 2005 http://www.parl.gc.ca/Sites/ASOII/19_ASOII_Chap15-e.html#TOC_048

[52] Procedures Committee Report on Private Legislation in the Scottish Parliament, 2000 http://www.scottish.parliament.uk/business/committees/historic/procedures/reports-00/prr00-02-01.htm

[53] Article 6, Human Rights Act 1998 http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_3#sch1

[54] Information gained from the written submission of the Clerk of Bills in the House of Commons

[55] The Scottish Parliament’s Guidance on Private Bills, Para 2.3 http://www.scottish.parliament.uk/business/bills/billguidance/gprb-1.htm#P499_43157