by Rod Ainsworth
Several large-scale infrastructure and development projects have in recent times involved the promotion of private Acts of Parliament. The Channel tunnel and related proposals for a high-speed rail link and new terminal at King’s Cross have been some of the more controversial examples. There is always a risk, as a landowner or occupier, of being on the receiving end of a petition for a private bill and there is also the risk, therefore, that instead of the relatively familiar territory of planning applications, council committees, appeals, section 52 agreements and public inquiries, the landowner/developer or his potential advisers are suddenly confronted by the strange new world of the “first house”, “second house”, “blocking motions”, “second house undertakings” and “opposed committees”.
The wide range of powers available through private bills has contributed to suspicions that the procedure is being abused. Many of the objectors to the proposed high-speed rail link from the Channel tunnel to London have complained, for example, that British Rail’s private bill will avoid the need for a planning application and public inquiry at which, they felt, their views could be better expressed. British Rail argued in response that “Parliamentary Bills are the normal method of obtaining powers for railway construction works” and that “the Parliamentary process allows the interest of all parties to be fully and fairly considered: the local community which is affected, as well as the travelling public and the taxpayer.” Quite so, but a new railway is surely very similar in principle to a new road — and a full public inquiry is normal in the case of new road proposals.
Those who suspect that the real motive behind the promotion of a private bill is a desire to force proposals through without allowing objectors a say can take some comfort from the fact that the private bill procedure can be as unpredictable for promoters as for anyone else.
In 1989 a number of Labour members of Parliament who objected to proposals in some private bills (the Associated British Ports (Number 2) Bill and the Killingholme Cargo Terminal Bill) which they considered might facilitate the import of South African coal, adopted the tactic of objecting as a matter of course to all private bills, including those which had nothing whatsoever to do with the bills to which the MPs objected. An emergency “revival motion” had to be passed in order to save those bills which would otherwise have been innocent victims of these delaying tactics.
Most bills have to be deposited in Parliament before November 27 in any particular year. The King’s Cross Bill, deposited in the 1988-89 session, illustrates the likely series of events. First, the Parliamentary agents acting for the promoter — British Rail — wrote and notified all those likely to be affected by the Bill that it had been deposited.
The promoter’s Parliamentary agents provided background information about the proposals and outlined the procedure for objecting. In the case of King’s Cross those objectors most substantially affected by the Bill chose to appoint Parliamentary agents to advise and represent them. Many others, however, objected in person or instructed a solicitor to do this for them.
Once deposited, a private bill begins its passage through either the House of Commons or the House of Lords, which then becomes its “first house”. The King’s Cross Bill, like most controversial bills, began in the Commons. A bill must pass through the same stages in both Houses as would a public bill — first reading (which for private bills is a formality), second reading, committee, report and third reading.
Usually, in the case of bills commencing their passage in the House of Commons, any objections must be lodged before the January 30 following the deposit of the bill. The deadlines are not absolute. In the case of the King’s Cross Bill the date was pushed back on several occasions to allow for the very large numbers wishing to object.
In fact, it cannot be assumed that everyone who wishes to object will be able to: there is a significant difference from the position with a planning appeal. In the case of planning appeals the Secretary of State and his inspectors by and large adopt the approach of considering, subject to general principles of natural justice, relevant representations from anyone wishing to make them. In the case of private bills, however, there are complex rules governing precisely who does and who does not have locus standi to petition against a bill. Some obvious categories have locus standi — owners of land which will be compulsorily acquired if the bill goes ahead, for example. In the case of King’s Cross, even though the Bill affected a number of listed buildings, English Heritage were ruled not to have locus standi.
Assuming that he can survive the promoter’s attempts to challenge his locus, it is at the committee stage that an objector’s case will be heard. The nature of the committee stage varies, depending on whether the bill is opposed or not. If the bill is opposed then a special “opposed committee” is formed whose members have no direct interest in the subject-matter of the bill.
Here one finds oneself on slightly more familiar ground. The opposed committee will hear the case in favour of, and objections to, the bill. Evidence is presented for both sides and there is cross-examination of witnesses by counsel on behalf of the promoters and objectors. An opposed committee differs, however, from a public inquiry in many significant respects. First, the members of the committee do not as a rule have any expertise or experience in the matters to be discussed. Second, members of Parliament have other pressing duties to perform and can lose patience with lengthy, detailed and technical proceedings in an opposed committee. At the committee stage of a bill in 1986 which proposed some changes to Felixstowe Dock, for example, some members simply refused to continue sitting on the committee, thus threatening to bring the whole process to a juddering halt. On the plus side, the decision-making of a committee is at least speedy and there is no question of waiting for months while reports are written and decisions taken. A committee deliberates in private for a few minutes and then gives its decision, normally with only the briefest of reasons.
The comparative absence of rules governing how members of Parliament make up their minds about a matter is one of the more surprising features of the private bill procedure for anyone more used to the world of planning appeals.
At any time during the reading of a private bill a member can object to the bill for whatever reason he or she likes. If the promoters cannot persuade the member to withdraw this “block”, then the bill will either be significantly delayed or the promoter must muster the support of at least 100 members of Parliament to force a closure motion and to enable the bill to proceed. The blocking tactics already referred to by some MPs in 1989 led to intensive lobbying by the promoters of some individual bills to persuade the members in question to allow those to proceed. That lobbying included, for example, in the case of one bill, arranging for representatives of sympathetic trade unions to meet individual members of Parliament to try to convince them of its merits, and involved the promoters in a last-minute dash around the hotels at the party conference in order to meet the last-objecting member of Parliament and persuade him to withdraw his “block”.
Very few promoters can be confident of being able to muster the support of 100 members of Parliament at the necessary time or of surviving unscathed through an opposed committee: promoters will, therefore, always seek so far as possible to compromise with objectors. During the resulting negotiations the promoter is likely to offer a “second house undertaking”.
By this device a promoter undertakes, in effect, not to question an objection in the second house on the basis that it had not previously been raised in the first house where the parties are in negotiations with a view to overcoming that objection. It enables an objector to try to reach a compromise and, in the meantime, to keep his powder dry.
The promoter’s objective is always, if at all possible, to have negotiated away all objections by the time the committee stage is reached. If he succeeds then all that is then necessary is to prove the “preamble” to the bill. In other words, to demonstrate the basic justification for it.
Assuming that all objections can be overcome and that the bill successfully negotiates all its various stages in both first and second houses, then the weary promoter has one major consolation: he can normally expect to have completed the whole process and have obtained Royal Assent to the private bill within a year from his original petition.
A recent report from a Joint Committee of both Houses on Private Bill Procedure (HL paper 97: HC 625) resulted in a far-reaching recommendation that in cases where the more important issues were planning considerations, private bill procedures should be replaced with a “normal” public inquiry. Attractive though that suggestion may be to many objectors and their consultants, it was not accepted by the Government. Although in a recent statement in the House of Commons Sir Geoffrey Howe gave an assurance that the Government would look at the “obscure and procedural” private bill procedure with “a real sense of urgency and with some care”, it is safest for the time being to assume that the risk referred to in the introduction to this article, of encountering and having to deal with a private bill, will remain.
