COMMITTEE ON PROCEDURES

OFFICIAL REPORT
(Hansard)

Inquiry into Private Legislation

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 ) Scottish Parliament
Ms Jane Sutherland )

Mr Alan Sandall ) House of Commons

Mrs Alison Gorlov ) Society of Parliamentary Agents
Mr Alastair Lewis )
Mr Robert Owen )

Mr Graham Thompson ) National Trust
Ms Diane Ruddock )

Mr Damien McMahon ) Derry City Council

Mr Donald Eakin ) The Law Society
Mr Alan Hunter )

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?

Mr David Cullum (Scottish Parliament):

I will say a few words to start.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

We are happy to answer questions.

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?

Mr Cullum:

Is that the cost to the Parliament or to the promoter?

The Chairperson:

I am referring to the total cost. Is it possible to estimate that cost?

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.

The Chairperson:

That is big money.

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.

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?

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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

Mr W Clarke:

What type of private Bills are being introduced?

Mr Cullum:

There are no private Bills before Parliament at the moment.

Mr W Clarke:

You are getting a rest from them.

The Chairperson:

How many Bills have come before the Parliament apart from the one big Bill?

Mr Cullum:

Ten.

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?

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?

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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 —

The Chairperson:

Mervyn, are you advocating another form of taxation? [Laughter.]

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.

The Chairperson:

Mervyn, are you curious or suspicious?

Mr Storey:

I suppose it is a combination of both.

Mr Cullum:

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

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.

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.

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.

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.

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.

Mr Storey:

It would have been difficult to maintain a quorum.

Mr Cullum:

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

Mr Storey:

That is a bad idea.

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.

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.

Mr W Clarke:

What sort of Bills are being worked on at present?

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.

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.

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?

Mr Sandall:

Mr Sandall:

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

The Chairperson:

Do Westminster Committees impose limitations on the number of witnesses that they can call or questions that they can ask?

Mr Sandall:

The normal practice is to allow both parties to call whoever they wish.

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.

The Chairperson:

Alan, thank you for your attendance and for your useful presentation.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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?

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.

Mr Brolly:

Yes.

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.

Mr Brolly:

Does that apply to a person or to a firm?

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.

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.

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.

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.

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.

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.

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.

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.

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?

Mrs Gorlov:

Something of that order.

Mr McQuillan:

How much would it cost to put such a Bill through Parliament?

Mr Owen:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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

The Chairperson:

Thank you to Diane and Graham for that presentation.

Mr McQuillan:

How long did the whole process take?

Mr Thompson:

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

Ms Ruddock:

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

Mr Storey:

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

It took less than a year.

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?

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.

The Chairperson:

Thank you.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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

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.

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.

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.

Mr McClarty:

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

Mr Brolly:

How do you know it was free?

The Chairperson:

There is a first time for everything.

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.

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.

The Chairperson:

That is because you did not get your local Act through. [Laughter.]

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.

Mr Brolly:

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

Mr McMahon:

I feel I do nothing else. [Laughter.]

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?

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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?

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.

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.

The Law Society has a fair amount of expertise in that. [Laughter.]

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.

The Chairperson:

Thank you. We appreciate your taking the time to attend today.

COMMITTEE ON PROCEDURES

OFFICIAL REPORT (Hansard)

Inquiry into Private Legislation

20 February 2008

Members present for all or part of the proceedings:

Witnesses:

The Chairperson (Lord Morrow):

Mr David Cullum (Scottish Parliament):

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Storey:

Ms Jane Sutherland (Scottish Parliament):

Mr Cullum:

Mr W Clarke:

Mr Cullum:

Mr W Clarke:

Mr Cullum:

Mr W Clarke:

The Chairperson:

Mr Cullum:

Mr Brolly:

Mr Cullum:

Mr Brolly:

Mr Cullum:

Ms Sutherland:

Mr Brolly:

Mr Cullum:

The Chairperson:

Mr Cullum:

Mr McQuillan:

Ms Sutherland:

Mr McQuillan:

Mr Cullum:

Ms Sutherland:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Ms Sutherland:

The Chairperson:

Ms Sutherland:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

Mr Sutherland:

Mr Storey:

The Chairperson:

Mr Storey:

The Chairperson:

Mr Storey:

Mr Cullum:

Mr Storey:

Mr Cullum:

Mr Storey:

Mr Cullum:

Ms Sutherland:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Cullum:

The Chairperson:

Mr Storey:

OFFICIAL REPORT
(Hansard)