Part One: Private Bills
Definition of a Private Bill
1.1 A Private Bill, according to Rule 9A.1.1 of the Standing Orders of the Scottish Parliament, “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”. The definition of a Private Bill, therefore, includes what are sometimes known as “personal Bills”.
1.2 Private Bills differ from Public Bills and are subject to substantially different procedures (see Part Five). Although Public Bills may be introduced by a Minister of the Scottish Government, an individual Member of the Scottish Parliament, or a committee convener, and range from major Bills of Scottish Government policy to small amending Bills, Budget Bills and Bills to tidy up the statute book, commonly they all involve only changes to the general law and matters of public policy. 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.
Devolution and the limits of legislative competence
1.3 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.
1.4 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 Standing Orders and in this Guidance. However, Scottish Private Bills that deal in part with reserved matters (as defined in Schedule 5 to the Scotland Act 1998) must continue to use the 1936 Act system and the General Orders thereunder – that is, they proceed by way of a “draft Provisional Order” subject to confirmation by a Bill introduced in the Westminster Parliament.
1.5 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) 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”.
1.6 Prospective promoters of transport developments should also give consideration to under which procedure, the Parliament’s Private Bill process or the Scottish Government’s transport and works process, they will be promoting their proposal.
Layout and presentation
1.7 Although the procedures are different, Private Bills in the Scottish Parliament are very similar, in terms of layout, structure and the conventions of legislative drafting, to Public Bills. This is because all Bills that are enacted become Acts of the Scottish Parliament (ASPs), and ASPs are not distinguished, in terms of presentation, according to the type of Bill from which they originate. In particular, private ASPs are numbered in the same single series as public ASPs.1
1.8 Scottish Private Bills are therefore almost identical in appearance to Scottish Public Bills. The layout of Scottish Bills, although broadly similar to that adopted by both Houses of Parliament at Westminster, is different in a number of respects. In particular, they are printed on a distinctive purple paper.
1.9 Standing Orders require Private Bills to be in “proper form” (Rule 9A.1.4). The Presiding Officer has made a determination of “proper form” which, together with recommendations on the content of Bills, is reproduced at Annexes B and C (see also paragraphs 2.8 and 2.9).
1.10 Users of this Guidance who are unaccustomed to dealing with primary legislation may find it useful to familiarise themselves with the information given in Annex C, which explains the structure of Private Bills and certain common features of drafting.
1 The numbering of ASPs is currently established by article 4 of the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (SI 1999/1379).