Private Bill Procedure: The Petitioner Experience

Private Bill Procedure: The Petitioner Experience INTRODUCTION That there is a Private Bill procedure in the Houses of Parliament is not, perhaps, generally known. Experience of it is even more limited, largely to the promoters of such a Bill, MPs and Peers, and lawyers who specialize in Parliamentary work. If at all, the acquaintance of members of the public is likely to be based on a one-off involvement as a result of being a petitioner against such a Bill (defined as one ‘conferring particular powers or benefits on any person or body of persons including individuals, local authorities, companies, or corporations’ Erskine May, 24th ed, p. 92). So how do petitioners find out about the procedure? How do they navigate their way through it? What do they find when they do so? This article is based on the experience of one group of petitioners against a particular Bill in January 2018—what was encouraging and what was disappointing. THE BILL The Bill in question was the Middle Level Bill. It was promoted by the Middle Level Commissioners and was presented to Parliament on 28 November 2016. The Middle Level is the central area of the Fens where Huntingdonshire, Cambridgeshire, and West Norfolk meet. In the mid-17th century, the area was drained by local landowners, headed by the Duke of Bedford, to provide farmland of outstanding quality (as it has turned out). The Middle Level Commissioners were set up to administer the Level and were given statutory duties and powers as both a drainage (as the process of drainage is continuous) and a navigation authority by a series of 18th- and 19th-century statutes. These changes obviously affected to a considerable extent those who lived and worked on the Fens as fishers, fowl catchers, reed cutters, and their and others use for boating. In acknowledgement of this, the legislation has permitted the non-commercial use of the Fens by boats without charge. As time has progressed, the commercial use of the Fens by boats has decreased and non-commercial including residential has increased. Broadly, the purpose of the Bill was to bring together the Commissioners’ powers and duties in one statute, to set up a boat registration system, to set up a charging system for those who make use of the Level, to extend the Commissioners’ powers over the Level waterways, to extend their bye-law making powers, and to give them powers to remove boats, which the Commissioners consider were there ‘without lawful authority’, sunk, or abandoned. ENTER THE PETITIONERS Broadly again, the Petitioners objected both to the Bill in principle and to particular clauses. They objected to the removal of the long established entitlement to use non-commercial boats on the Level without charge, pointed out that the Bill was largely unnecessary as what it provided for was mostly already legislated, that the Bill laid charges on boat users without any concurrent duty to provide services or any provision limiting the charges, objected to the width of jurisdiction over the waterways and of the bye-law making powers and the powers to remove boats in particular those which were the dwellings of their users. The Petitioners consisted of three boat users (including two dwellers), a representative of one Boating club (the March Cruising Club), and the NBTA (National Bargee Travellers Association). A sixth Petitioner, also a boat dweller, withdrew his petition because he was not confident that he would be able to cope with the Committee process due to his disability. It may be that if better information and support during the hearing had been provided (e.g. if such support exists information about it made more prominent), he would not have decided to withdraw. THE PROCEDURE The provisions for notification of the presentation of the Bill include notification by newspapers, notification by the promoters of those with interests in the land affected, as well as publication on the parliamentary websites. However, as it happens, none of the Petitioners learned about the Bill by any of these means. The NBTA had been looking out for the Bill as it had responded to a consultation in 2016 by the Commissioners on the issues subsequently raised in the Bill (that consultation itself had not been directed to the NBTA but had been learned about through another boating organization) and so became aware of its presentation to parliament. The other Petitioners were either alerted by the NBTA or alerted by communication among themselves. The main features of the procedure are as follows: – there is a period of 10 days allowed for the submission of petitions following the first reading of the Bill and its presentation to the House; – once listed for first reading, there will be no debate on the Bill on second reading unless an MP submits a ‘blocking motion’ (by shouting ‘object’); – a second reading with debate is then listed; – after that, if petitions have been submitted, the Bill is considered by an Opposed Bill Committee (OBC) (consisting of 4 MPs: two of the majority party and two not) in public hearing; – at the OBC hearing, the Committee first considers whether the need for the Bill is proved, and if it is, whether to accept or reject proposed amendments; – the hearing thereafter proceeds like a trial. The promoters open their case (usually by Counsel); call witnesses who are open to cross-examination by the petitioners; and the petitioners likewise may give evidence, call witnesses, and address the Committee. What witnesses are called depends on the decisions of the promoters and the petitioners; – at the conclusion of the evidence and addresses, the Committee considers in private and then gives its decision as to whether the Bill is proved, what amendments it accepts and takes undertakings from the promoters, if any; – the Bill returns to the Commons for Report and third reading (when further amendments may be proposed by MPs); and – it is then sent to the House of Lords. WHAT HAPPENED? In this particular case, the Bill was found proved, but in view of the objections raised by the Petitioners, the promoters themselves proposed significant amendments to the Bill and offered undertakings all of which the Committee accepted while rejecting the petitioners’ amendments (although at least one of the accepted amendments had been suggested by Parliamentary Counsel to the Committee and had been agreed by both sides. The assistance of Parliamentary Counsel is gratefully acknowledged by the Petitioners). HOW THE PETITIONERS NAVIGATED? The Petitioners were without legal representation, although they had some legal assistance from a retired barrister with some Parliamentary experience and familiarity with the issues (this will not always or even usually be the case), and were able to assist with the drafting of amendments and be present to help at the hearing. Otherwise, the Petitioners had to rely on what they read, their own wit, and the assistance of the Private Bill Office. In this instance, the Petitioners were both knowledgeable and articulate about the issues involved (in the view of this writer, the retired barrister), and the NBTA had experience both of litigation and of extensive research into other Private Bill Committee hearings including one concerning another navigation authority (again, this will not always be the case). Moreover, the Petitioners had been able to meet during the Bill process to discuss the wording of their Petitions, their proposed amendments, the contents of their submissions to the Committee, and the approach they would adopt during the hearing. Most petitioners will need the assistance of the Private Bill Office. The experience of these Petitioners was that the staff of that office were helpful, friendly, and approachable through the entire process, liaised when needed, and responded promptly to requests for information and assistance. Assuming this to be the tradition of the Private Bill Office, all petitioners would be greatly helped by the Office in dealing with what, on any view, for most would be an unfamiliar and awe-inspiring experience. A tip-petitioners would be well advised to obtain passes from the Private Bill office enabling them to go to the head of the queue for entry into the Houses of Parliament. CONCLUSIONS AND PROPOSALS The procedure is undoubtedly a challenging experience for those unfamiliar with the worlds of Parliament and the courtroom (which would be so for most petitioners). It is made easier by the availability of written guidance and by the assistance of those who administer it. Courtesy and patience from the Committee is also necessary (as was the case). The procedure has the merit of enabling the voice of the public to be heard and listened to in relation to the contents of a Bill (it is thought that Public Bills would also benefit from a similar procedure). Apart from the above, the following points occur to the Petitioners: – getting the wording of the Petition right, both to ensure that the format was correct and to capture and explain the objections to the Bill, was one of the most difficult parts of the process. It is observed that the House of Lords petition form is much simpler than that of the House of Commons. – the petitioning period was too short and insufficiently advertised. The Promoters should be required to make far greater efforts to reach those who are directly and specially affected and the petitioning period increased. – meeting the 10-day timescale for submitting a Petition was also difficult because Petitions could only be submitted by the petitioner in person, by an MP, or by a parliamentary agent. Most of the Petitioners against this Bill had therefore to travel some 100 miles or so from their Fenland homes to deposit their petitions. It is observed that the House of Lords procedure permits submission of the Petition by email (and post). – without an MP on side and available there is no debate on the Bill at second reading. Assuming the debate to be necessary, why could it not be sufficient for a debate to be listed that petitions have been submitted? – the Petitioners consider that the hearing cannot be described as a level playing field. The promoters of the Bill are normally represented by experienced Counsel, a provision which is out of reach of most members of the public. Despite the advantages possessed by these Petitioners, referred to in the previous section of this article, they still struggled to counter some of the points made by the promoters and ended up feeling that they had not conveyed all of their arguments effectively. This can only be remedied by an extension of the legal aid system – the Committee itself has no power to call witnesses and is dependent on who the parties decide to call. For example, in this case, the Petitioners would have liked to question the MLC’s accountant on the amounts actually spent on assisting navigation as opposed to drainage/flood protection—but he was not called—and the witness who was called professed himself unable to answer questions on the accounts. There was nothing the Petitioners or the Committee could do to require attendance. – unlike in the House itself, there appears to be no procedure for making objections or raising points of information during a party’s speech when it appears an error has been made. So when the promoter’s Counsel was informing the Committee of the boating clubs support for the Bill, a Petitioner who was present at the relevant club meeting was unable to object at that point that the members had not been allowed to express a view on the Bill (although he did attempt to raise the matter by sending a note to a member of the Committee which was (correctly) ruled out of order by the chairman). – it was also felt that the promoters have an unfair advantage in that they (through their Counsel or representative) address the Committee both at the opening and at the closing of the hearing and are thus able to respond to the petitioners’ arguments and propose amendments without the petitioners having the opportunity to reply (it is acknowledged that the proposer opening and closing is the normal procedure during debates in the House—nevertheless the procedures are not the same and it is felt the Committee should have all available argument before it). A solution would be for the petitioners to close. – unlike in the House itself, the debate among members leading to decisions is conducted in private—which means the parties are unaware as to how the decisions are made and have no opportunity to make any representations on perceived flaws in the reasoning or mistakes as to fact. For example, one of the clauses of the Bill, in the Petitioners’ view, directly contradicts the provisions of the Data Protection Act 1998. Yet there was no attempt to explain to the Petitioners why their proposals to amend or delete that clause were not accepted. At the least, it would assist if reasons were given so that the parties would then have the opportunity to argue there was an error at subsequent stages (it is observed that in administrative law more and more the giving of reasons is regarded as an essential part of a proper decision making process cf ‘Administrative Law’ by Paul Craig, 2016, 8th ed, 369–70, para 12–038). At present, the only hint of what the reasons were occurs if a member of the Committee speaks at the Report/third reading stage as happened in this case. THE END On the whole, however and as indicated by the history set out above, the Petitioners considered that their attendance at the hearing was well worthwhile and would encourage other petitioners to do the same. Attention to the points made above would be welcome. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Private Bill Procedure: The Petitioner Experience

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Oxford University Press
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© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
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0144-3593
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Abstract

INTRODUCTION That there is a Private Bill procedure in the Houses of Parliament is not, perhaps, generally known. Experience of it is even more limited, largely to the promoters of such a Bill, MPs and Peers, and lawyers who specialize in Parliamentary work. If at all, the acquaintance of members of the public is likely to be based on a one-off involvement as a result of being a petitioner against such a Bill (defined as one ‘conferring particular powers or benefits on any person or body of persons including individuals, local authorities, companies, or corporations’ Erskine May, 24th ed, p. 92). So how do petitioners find out about the procedure? How do they navigate their way through it? What do they find when they do so? This article is based on the experience of one group of petitioners against a particular Bill in January 2018—what was encouraging and what was disappointing. THE BILL The Bill in question was the Middle Level Bill. It was promoted by the Middle Level Commissioners and was presented to Parliament on 28 November 2016. The Middle Level is the central area of the Fens where Huntingdonshire, Cambridgeshire, and West Norfolk meet. In the mid-17th century, the area was drained by local landowners, headed by the Duke of Bedford, to provide farmland of outstanding quality (as it has turned out). The Middle Level Commissioners were set up to administer the Level and were given statutory duties and powers as both a drainage (as the process of drainage is continuous) and a navigation authority by a series of 18th- and 19th-century statutes. These changes obviously affected to a considerable extent those who lived and worked on the Fens as fishers, fowl catchers, reed cutters, and their and others use for boating. In acknowledgement of this, the legislation has permitted the non-commercial use of the Fens by boats without charge. As time has progressed, the commercial use of the Fens by boats has decreased and non-commercial including residential has increased. Broadly, the purpose of the Bill was to bring together the Commissioners’ powers and duties in one statute, to set up a boat registration system, to set up a charging system for those who make use of the Level, to extend the Commissioners’ powers over the Level waterways, to extend their bye-law making powers, and to give them powers to remove boats, which the Commissioners consider were there ‘without lawful authority’, sunk, or abandoned. ENTER THE PETITIONERS Broadly again, the Petitioners objected both to the Bill in principle and to particular clauses. They objected to the removal of the long established entitlement to use non-commercial boats on the Level without charge, pointed out that the Bill was largely unnecessary as what it provided for was mostly already legislated, that the Bill laid charges on boat users without any concurrent duty to provide services or any provision limiting the charges, objected to the width of jurisdiction over the waterways and of the bye-law making powers and the powers to remove boats in particular those which were the dwellings of their users. The Petitioners consisted of three boat users (including two dwellers), a representative of one Boating club (the March Cruising Club), and the NBTA (National Bargee Travellers Association). A sixth Petitioner, also a boat dweller, withdrew his petition because he was not confident that he would be able to cope with the Committee process due to his disability. It may be that if better information and support during the hearing had been provided (e.g. if such support exists information about it made more prominent), he would not have decided to withdraw. THE PROCEDURE The provisions for notification of the presentation of the Bill include notification by newspapers, notification by the promoters of those with interests in the land affected, as well as publication on the parliamentary websites. However, as it happens, none of the Petitioners learned about the Bill by any of these means. The NBTA had been looking out for the Bill as it had responded to a consultation in 2016 by the Commissioners on the issues subsequently raised in the Bill (that consultation itself had not been directed to the NBTA but had been learned about through another boating organization) and so became aware of its presentation to parliament. The other Petitioners were either alerted by the NBTA or alerted by communication among themselves. The main features of the procedure are as follows: – there is a period of 10 days allowed for the submission of petitions following the first reading of the Bill and its presentation to the House; – once listed for first reading, there will be no debate on the Bill on second reading unless an MP submits a ‘blocking motion’ (by shouting ‘object’); – a second reading with debate is then listed; – after that, if petitions have been submitted, the Bill is considered by an Opposed Bill Committee (OBC) (consisting of 4 MPs: two of the majority party and two not) in public hearing; – at the OBC hearing, the Committee first considers whether the need for the Bill is proved, and if it is, whether to accept or reject proposed amendments; – the hearing thereafter proceeds like a trial. The promoters open their case (usually by Counsel); call witnesses who are open to cross-examination by the petitioners; and the petitioners likewise may give evidence, call witnesses, and address the Committee. What witnesses are called depends on the decisions of the promoters and the petitioners; – at the conclusion of the evidence and addresses, the Committee considers in private and then gives its decision as to whether the Bill is proved, what amendments it accepts and takes undertakings from the promoters, if any; – the Bill returns to the Commons for Report and third reading (when further amendments may be proposed by MPs); and – it is then sent to the House of Lords. WHAT HAPPENED? In this particular case, the Bill was found proved, but in view of the objections raised by the Petitioners, the promoters themselves proposed significant amendments to the Bill and offered undertakings all of which the Committee accepted while rejecting the petitioners’ amendments (although at least one of the accepted amendments had been suggested by Parliamentary Counsel to the Committee and had been agreed by both sides. The assistance of Parliamentary Counsel is gratefully acknowledged by the Petitioners). HOW THE PETITIONERS NAVIGATED? The Petitioners were without legal representation, although they had some legal assistance from a retired barrister with some Parliamentary experience and familiarity with the issues (this will not always or even usually be the case), and were able to assist with the drafting of amendments and be present to help at the hearing. Otherwise, the Petitioners had to rely on what they read, their own wit, and the assistance of the Private Bill Office. In this instance, the Petitioners were both knowledgeable and articulate about the issues involved (in the view of this writer, the retired barrister), and the NBTA had experience both of litigation and of extensive research into other Private Bill Committee hearings including one concerning another navigation authority (again, this will not always be the case). Moreover, the Petitioners had been able to meet during the Bill process to discuss the wording of their Petitions, their proposed amendments, the contents of their submissions to the Committee, and the approach they would adopt during the hearing. Most petitioners will need the assistance of the Private Bill Office. The experience of these Petitioners was that the staff of that office were helpful, friendly, and approachable through the entire process, liaised when needed, and responded promptly to requests for information and assistance. Assuming this to be the tradition of the Private Bill Office, all petitioners would be greatly helped by the Office in dealing with what, on any view, for most would be an unfamiliar and awe-inspiring experience. A tip-petitioners would be well advised to obtain passes from the Private Bill office enabling them to go to the head of the queue for entry into the Houses of Parliament. CONCLUSIONS AND PROPOSALS The procedure is undoubtedly a challenging experience for those unfamiliar with the worlds of Parliament and the courtroom (which would be so for most petitioners). It is made easier by the availability of written guidance and by the assistance of those who administer it. Courtesy and patience from the Committee is also necessary (as was the case). The procedure has the merit of enabling the voice of the public to be heard and listened to in relation to the contents of a Bill (it is thought that Public Bills would also benefit from a similar procedure). Apart from the above, the following points occur to the Petitioners: – getting the wording of the Petition right, both to ensure that the format was correct and to capture and explain the objections to the Bill, was one of the most difficult parts of the process. It is observed that the House of Lords petition form is much simpler than that of the House of Commons. – the petitioning period was too short and insufficiently advertised. The Promoters should be required to make far greater efforts to reach those who are directly and specially affected and the petitioning period increased. – meeting the 10-day timescale for submitting a Petition was also difficult because Petitions could only be submitted by the petitioner in person, by an MP, or by a parliamentary agent. Most of the Petitioners against this Bill had therefore to travel some 100 miles or so from their Fenland homes to deposit their petitions. It is observed that the House of Lords procedure permits submission of the Petition by email (and post). – without an MP on side and available there is no debate on the Bill at second reading. Assuming the debate to be necessary, why could it not be sufficient for a debate to be listed that petitions have been submitted? – the Petitioners consider that the hearing cannot be described as a level playing field. The promoters of the Bill are normally represented by experienced Counsel, a provision which is out of reach of most members of the public. Despite the advantages possessed by these Petitioners, referred to in the previous section of this article, they still struggled to counter some of the points made by the promoters and ended up feeling that they had not conveyed all of their arguments effectively. This can only be remedied by an extension of the legal aid system – the Committee itself has no power to call witnesses and is dependent on who the parties decide to call. For example, in this case, the Petitioners would have liked to question the MLC’s accountant on the amounts actually spent on assisting navigation as opposed to drainage/flood protection—but he was not called—and the witness who was called professed himself unable to answer questions on the accounts. There was nothing the Petitioners or the Committee could do to require attendance. – unlike in the House itself, there appears to be no procedure for making objections or raising points of information during a party’s speech when it appears an error has been made. So when the promoter’s Counsel was informing the Committee of the boating clubs support for the Bill, a Petitioner who was present at the relevant club meeting was unable to object at that point that the members had not been allowed to express a view on the Bill (although he did attempt to raise the matter by sending a note to a member of the Committee which was (correctly) ruled out of order by the chairman). – it was also felt that the promoters have an unfair advantage in that they (through their Counsel or representative) address the Committee both at the opening and at the closing of the hearing and are thus able to respond to the petitioners’ arguments and propose amendments without the petitioners having the opportunity to reply (it is acknowledged that the proposer opening and closing is the normal procedure during debates in the House—nevertheless the procedures are not the same and it is felt the Committee should have all available argument before it). A solution would be for the petitioners to close. – unlike in the House itself, the debate among members leading to decisions is conducted in private—which means the parties are unaware as to how the decisions are made and have no opportunity to make any representations on perceived flaws in the reasoning or mistakes as to fact. For example, one of the clauses of the Bill, in the Petitioners’ view, directly contradicts the provisions of the Data Protection Act 1998. Yet there was no attempt to explain to the Petitioners why their proposals to amend or delete that clause were not accepted. At the least, it would assist if reasons were given so that the parties would then have the opportunity to argue there was an error at subsequent stages (it is observed that in administrative law more and more the giving of reasons is regarded as an essential part of a proper decision making process cf ‘Administrative Law’ by Paul Craig, 2016, 8th ed, 369–70, para 12–038). At present, the only hint of what the reasons were occurs if a member of the Committee speaks at the Report/third reading stage as happened in this case. THE END On the whole, however and as indicated by the history set out above, the Petitioners considered that their attendance at the hearing was well worthwhile and would encourage other petitioners to do the same. Attention to the points made above would be welcome. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Statute Law ReviewOxford University Press

Published: May 1, 2018

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