Part 1 - Private Bills

Definition of a Private Bill

1.1         A Bill is a draft Act. A Bill introduced in the Scottish Parliament contains the text that will, if the Bill is passed and enacted, become part of the statute law as an Act of the Scottish Parliament.

1.2         A Private Bill “is a Bill introduced for the purpose of obtaining for an individual person, body corporate or unincorporated association of persons (“the promoter”) particular powers or benefits in excess of, or in conflict with, the general law, and includes a Bill relating to the estate, property, status or style, or otherwise relating to the personal affairs, of the promoter” (Rule 9A.1.1). The definition of a Private Bill, therefore, includes what are sometimes known as “personal Bills”.

1.3         Private Bills differ from Public Bills and are subject to substantially different procedures. Public Bills may be introduced by a Minister in the Scottish Government, an individual MSP, or a committee convener, and vary widely in their scale and subject-matter – but what they have in common is that their purpose is to alter or clarify the public and general law.[1]  As such, they are subject to a process that is entirely parliamentary in character and in which only MSPs, elected to serve the public interest, participate. Private Bills are different in that they involve measures sought in the private interests of the promoter, and to which others may object, also in a private capacity. The role of the Parliament remains to legislate but, because of the nature of the issues at stake, it is also to arbitrate between competing private interests. That calls for procedures that are both parliamentary and quasi-judicial in character.

1.4         Private Bills are subject to a three-stage process that is explained in detail in Part 5. A graphic overview is provided in Annex A.

Devolution and the limits of legislative competence

1.5         Before the establishment of the Scottish Parliament in 1999, most private legislation affecting Scotland was subject to the procedures established by, and under, the Private Legislation Procedure (Scotland) Act 1936. Other UK private legislation (including some that applied in part to Scotland) was, and still is, subject to the Private Bill Standing Orders of the two Houses of Parliament at Westminster.

1.6         Paragraph 5 of Schedule 8 to the Scotland Act 1998 amended the 1936 Act so that the procedures it provides are no longer available for a Private Bill “wholly within the legislative competence of the Scottish Parliament”. As a result, Private Bills dealing solely with devolved matters can only be introduced into the Scottish Parliament, where they will be subject to the procedures described in this Guidance. However, Scottish Private Bills that deal wholly or in part with reserved matters (as defined in Schedule 5 to the Scotland Act 1998), or would otherwise be outside the Parliament’s legislative competence, must continue to use the 1936 Act system – that is, they proceed by way of a “draft Provisional Order” subject to confirmation by a Bill introduced in the Westminster Parliament.

1.7         For these reasons, prospective promoters are advised to ensure that everything they seek by way of a Private Bill would be within the Scottish Parliament’s legislative competence before embarking on the process described in this Guidance. They should also be aware that any Private Bill introduced in the Scottish Parliament will be subject to various legislative competence tests before, during and after its passage through the Parliament. First, it may only be introduced if accompanied by two statements on legislative competence, one by the promoter (under section 31(1) of the Scotland Act 1998) and one by the Presiding Officer (under section 31(2)).  Secondly, if passed by the Parliament, it could be subject to challenge by the Advocate General, the Lord Advocate or the Attorney General, who have the power (under section 33 of the Act) to prevent it being submitted for Royal Assent until any doubts about legislative competence have been resolved. Finally, even if it is enacted, it may be overturned by the courts on the basis of section 29(1) of the Act, which states that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”.

1.8         The Parliament’s legislative competence is defined according to five criteria (set out in section 29(2)):

·        the Parliament can only legislate for or in relation to Scotland

·        it cannot legislate in relation to the “reserved matters” set out in Schedule 5 to the 1998 Act (only the UK Parliament can legislate on those reserved matters)

·        it cannot modify certain enactments set out in Schedule 4 to the Scotland Act 1998 (which include the Human Rights Act 1998 and certain provisions of the Acts of Union and the European Communities Act 1972)

·        its legislation must be compatible with the European Convention on Human Rights and with European Community law, and

·        it cannot remove the Lord Advocate from his or her position as head of the system for criminal prosecutions and the investigation of deaths.

1.9         While many of the limits on legislative competence are clear-cut, others may be subject to differences of interpretation. Whether the provisions of a Bill are within the legislative competence of the Parliament may be a matter of debate throughout the process of considering the Bill.  The precise boundaries of the Parliament’s powers to legislate can ultimately be decided only by the courts.

“Works” Bills

1.10      As well as defining Private Bills in general, the standing orders also identify a special category of such Bills – namely Bills that either seek to authorise the construction or alteration of certain classes of works (as listed in Annex B), or seek to authorise the compulsory acquisition or use of any land or buildings.  Such Bills – Bills to which Rule 9A.1.1A applies – are sometimes known as “works Bills”.

1.11      Works Private Bills are subject to a number of specific additional requirements, as follows.

1.12      Firstly, they may only be introduced if the promoter has first consulted the following bodies (known as “mandatory consultees”):

·        Scottish Natural Heritage

·        the Scottish Environment Protection Agency

·        Historic Environment Scotland

·        the local planning authority or authorities (which may include a National Park Authority).

1.13      The type of consultation required, and the relevant timescales, are set out in Annex C.

1.14      As well as being consulted by the promoter before introduction, the mandatory consultees have a right to make statements to the Parliament, after introduction, for example, if they have concerns about the adequacy of the consultation that was undertaken by the promoter.  Such statements may be made during the same 60-day period, beginning on the day after the Bill is introduced, during which objections may be lodged – although a statement by a mandatory consultee is not itself treated as an objection (Rule 9A.6A).

1.15      Secondly, various additional accompanying documents are required at the time a works Bill is introduced – namely, an Estimate of Expense and Funding Statement, maps, plans, sections and books of references, and an Environmental Statement.  (These are explained in more detail in Part 2.) 

1.16      Thirdly, there are additional restrictions on which MSPs may be members of the Private Bill Committee established to consider a works Bill (as explained further in Part 4).

1.17      Finally, such a Committee has the option of having an independent assessor appointed to carry out much of the detailed scrutiny at Consideration Stage – including, in particular:

·        making recommendations on how the objections are to be grouped, which objectors should be appointed lead objectors, and whether the evidence taken should be written or oral

·        taking that evidence, including through oral hearings, and reporting on it to the Committee.

1.18      The role of the assessor is explained further in Part 4.

Transport and Works (Scotland) Act 2007

1.19      Most of the Private Bills introduced in the first two sessions of the Parliament (1999-2003 and 2003-07) were Bills to authorise major infrastructure projects, such as railways or tram lines – and so would fall within the current definition of a works Bill.  However, at the end of its second session, the Parliament passed a Bill aimed at creating a new, non-parliamentary process for scrutinising transport-related development projects. 

1.20      This Bill, enacted as the Transport and Works (Scotland) Act 2007, allows promoters to apply to the Scottish Ministers for an order authorising the construction or operation of a railway, tramway, other guided transport system, trolley vehicle system or inland waterway.  Such an application is subject to a process that has many similarities with the Private Bill process – there are obligations on promoters to advertise, notify and consult in advance; persons whose interests may be affected have a right to object; and inquiries may be held at which the promoter and objectors have the opportunity to be heard – but which are established by the Scottish Government rather than by the Parliament. 

1.21      Accordingly, any promoter considering introducing a works Private Bill should first consider whether the statutory authority should instead be obtained via an order under the 2007 Act.  Further information about the application of the Act and the processes involved can be obtained from Transport Scotland[2].

1.22      The Parliament’s Private Bill process continues to make provision for consideration of works Bills, as there may be developments that fit that definition (i.e. the definition set out in Rule 9A.1.1A) but to which the 2007 Act does not apply.  However, works Bills are now much less likely to arise, and the focus of this Guidance is on non-works Private Bills.



[1] Some Public Bills, introduced by Ministers, combine provisions of this character (altering or clarifying the public and general law) with provisions that adversely affect the interests of certain individuals or organisations in a manner different to other individuals or organisations in the same category or class. These Hybrid Bills are subject to separate procedures both from normal Public Bills and from Private Bills – see Chapter 9C of the Parliament’s standing orders and the separate Guidance on Hybrid Bills.

[2] Contact details for further information are available on the Transport Scotland website at: http://www.transportscotland.gov.uk/transport-and-works-scotland

 

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