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Hybrid Bills and Parliament: History, procedure and controversies

15 Oct 2023
UK Holocaust Memorial and Learning Centre Designed by David Adjaye and Ron Arad. ©Ministry of Housing, Communities & Local Government / Gov.UK
UK Holocaust Memorial and Learning Centre Designed by David Adjaye and Ron Arad. ©Ministry of Housing, Communities & Local Government / Gov.UK

Two of the UKs most contested current public projects, the HS2 rail line and the proposed Holocaust Memorial in Westminsters Victoria Tower Gardens, are both underpinned by a rare and sometimes controversial form of legislation: the Hybrid Bill. What are Hybrid Bills, what are they used for, how do they differ from Public and Private Bills, and what are the procedural and political consequences if a Bill is judged to be hybrid?

Paul Evans, Former House of Commons Clerk
,
Former House of Commons Clerk

Paul Evans

Paul Evans
Former House of Commons Clerk

Paul Evans CBE retired in August 2019 from the post of Clerk of Committees in the House of Commons, after 38 years working there. He was made a CBE in 2019.

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In May 2023 a slightly puzzling document was issued by Parliament, authored by a group of parliamentary officials calling themselves the ‘Examiners of Petitions for Private Bills’. It related to the Holocaust Memorial Bill, introduced to the Commons on 23 February. It throws an intriguing sidelight on an obscure corner of parliamentary procedure, which this post tries to explain.

Most people think of Parliament as primarily a machine for making laws. And most people think of laws as those which apply to all of us (potentially - not all of us all of the time). This general law is made in the form of ‘public and general Acts of Parliament’. The Bills which are considered by Parliament in the course of making such laws are known as ‘Public Bills'.

In the long view of history, however, the preoccupation of Parliament with the general law is relatively recent – essentially a late-19th- and more particularly 20th-century phenomenon. Before that, Parliament spent relatively little of its time making general law.

It did, though, still spend a lot of time in these golden olden days passing Acts of Parliament, but the bulk of these were private Acts rather than public and general ones. Private Acts granted, to individuals or corporate bodies, powers which were in excess of or in contradiction to the general law.

For example, such an Act might allow for the building of a bridge or a harbour, or the creation of a turnpike (in modern terms, toll) road. In the 17th and 18th centuries, Parliament spent much of its time legislating for the enclosure (privatisation, one might call it nowadays) of common land. Before divorce was recognised in general law it was necessary to obtain a private (or, more strictly, personal) Act to dissolve a marriage (which restricted divorce largely to the rich – between 1700 and 1857 there were only 314 such Acts passed).

Private legislation reached a peak with the onset of railway mania: in order to secure the right to lay a track across private lands, the undertaker had first to secure the route by means of a private Act. And since railways were the ‘dotcom’ bubble of the later 19th century and seen as a licence to print money, corruption of MPs and officials was rife (see Anthony Trollope/Charles Dickens/George Eliot passim).

During the same era Parliament also spent a significant portion of its time legislating to create municipal corporations of one kind and another, to administer the mushrooming conurbations of the industrial age, for which the old system of local government was inadequate.

The Bills which go on to become these private Acts of Parliament are known as ‘Private Bills’, and a whole separate set of Standing Orders in each House applies to them. The first (1844) and subsequent editions until the 1990s of Erskine May devoted something like a quarter to a third of their contents to explaining the highly complex intricacies of the system.

Private Bills are initiated by ‘promoters’, who must work through specially licensed lawyers known as ‘parliamentary agents’. In both Houses, if a Bill is given a Second Reading, persons or bodies which can demonstrate a locus standi (in other words, who are directly affected by the proposals in the Bill) have the right to petition against the Bill and to seek alterations to it. They plead their case before a committee of four Members, where they (and the promoter) may be represented by Counsel. The committee may reject a Bill outright, or it may amend it in line with the requests of petitioners. The Bill as agreed to by the committee must then be approved by the House.

When the new Palace of Westminster was being designed in the 1840s, the suite of rooms along the quarter-mile of its committee corridor were there principally to accommodate committees on Private Bills. Select Committees were relatively few and far between, and committees on Public Bills largely unknown (committee stages for Public Bills generally took place in Committee of the whole House and therefore in the Chamber).

Gradually but remorselessly, these Acts of local or individual character have been replaced by general law:

  • Divorce was removed from the ambit of private legislation by the Matrimonial Causes Act 1857 (although between 1980 and 1987 six personal Acts were passed to enable particular pairs of step-relations and pairs of in-laws to marry each other in contradiction of the then‑law – which has since been altered).

  • The last turnpike Act was in 1872.

  • Local authorities were legislated for generally in their modern form in the Local Government Act 1888 and many subsequent Acts.

  • Extending the King’s Highway was facilitated by various forms of compulsory purchase legislation, and major infrastructure projects were eventually largely removed from the private legislation system under the Transport and Works Act 1992 (shortly after the passing of the Act which provided for the construction of a second Severn crossing and allowed the concessionaire to charge tolls). The Transport and Works Act 1992 replaced the parliamentary Private Bill procedures with a system of public inquiries and a single vote on principle in Parliament, and the Planning Act 2008 extended this principle.

What was once a torrent of private legislation has now dried to a trickle, and become an obscure and overgrown backwater of the work of the two Houses. But it still remains in vestigial form. There are currently just three Private Bills progressing through Parliament: the Bishop’s Stortford Cemetery Bill, the City of London (Markets) Bill and the Royal Albert Hall Bill.

Certain Bills, however, contain provisions characteristic of both public and private legislation. This is generally where the provisions of a Bill can be shown to affect some members of a defined class of persons (including corporate ‘persons’) differently when compared with other members of the same class. (So, when the Government wanted to nationalise Northern Rock, for example, it produced a Bill – the Banking (Special Provisions) Bill – which gave it a general rather than a specific power, partly in order to avoid hybridity issues.)

These so-called ‘hybrid’ Bills are relatively rare. Most recent significant examples are of Government-sponsored Bills for the construction of new railways (Crossrail, HS1 and three phases of HS2), which self-evidently affect some property owners along the proposed route adversely in comparison with property owners elsewhere. In fact, like most Hybrid Bills in recent times, these Bills were to all intents and purposes Government-sponsored Private Bills, since the only ‘public’ element was the decision to undertake the project with (or in the case of the Channel Tunnel, without) Government financial support.

Where it appears that a Bill may be hybrid in some of its provisions, it is referred, on publication after its First Reading, to the aforementioned Examiners of Petitions. If they report that the private legislation Standing Orders ought to apply to any of its provisions, it is referred after its Second Reading to a Select Committee appointed for the purpose. The Bill then essentially passes through a version of the private legislation procedure, with the full panoply of petitions, hearings with Counsel and petitioners, etc. The Committee may amend the Bill, and may make a report on it as well. When the Bill has undergone this process, after being reported to the House, it progresses in the same way as a Public Bill. As with any Bill, it must repeat all this in the House of Lords.

These private-legislation-style Select Committee stages of a Hybrid Bill may prolong its parliamentary career significantly:

  • The Crossrail Bill was introduced to the Commons in February 2005 and received its Royal Assent only in July 2008, after the Commons Committee had received 464 petitions against the Bill and the Lords a further 113.

  • The Channel Tunnel Rail Link Bill (HS1) was introduced in November 1994 and received Royal Assent in November 1996 – this was a relatively fast journey.

Hybridity, then, makes the business of getting a Bill through Parliament much more laborious.

If this comes as a surprise to Government, it can have political implications and unforeseen consequences, as we can see from the notorious case of the Aircraft and Shipbuilding Industries Bill in the mid-1970s, which generated enormous procedural controversy and a bitter parliamentary procedural war.

In 1976 the Labour Government had lost its small majority in the House and was now teetering on the brink of defeat. In the 1975-76 Session it reintroduced the Aircraft and Shipbuilding Industries Bill which nationalised parts of these industries (the ‘parts’ is important).

The Bill, which had originally been introduced in the previous Session, but which had run out of time at Prorogation, received its Second Reading and was committed to a Standing (Public Bill) Committee which reported it on 13 May 1976.

On 25 May, a Conservative MP (the late Robin Maxwell-Hyslop) raised a point of order on a petition which, he claimed, made clear that the Bill was prima facie ‘hybrid’ – it affected different owners in the aircraft and shipbuilding industries differently. Although the Speaker ruled that it was not, Maxwell-Hyslop then presented further evidence and the Speaker promised a further ruling. The next day, “after long and anxious thought”, he announced that the Bill was indeed on the face of it hybrid. So, if the Examiners had agreed, it would have to have gone through the elaborate procedure of hearings and petitions described above.

The Opposition tabled an amendment to accept the Speaker’s ruling and put the Bill through the hybrid procedures. The division on the amendment was a tie, at 303 all. The Speaker declared himself with the Noes, in accordance with precedent that the Chair should not create a majority where there was none. The main question, to dispense with the hybrid procedures, was then put and agreed to by 304 to 303. If it had been a tie, the Speaker would again have had to declare himself with the Noes and the Government would have been defeated.

The additional Member voting on the Government side, it was alleged, had been ‘paired’ (that is, they had promised not to vote, in an agreement between the Whips so that an opposition MP could be allowed to be absent). This was why he had not voted in the first division. However, he had broken his pairing promise for the second division in order to save the Government – a serious breach of trust. The House erupted in “grave disorder”. Michael Heseltine went down in history (or at least in Private Eye) as ‘Tarzan’ for his Mace-swinging performance during the uproar.

The Opposition then boycotted all procedural cooperation between the ‘Usual Channels’. For the next month, the House sat to all hours, dividing on almost every question that needed to be decided, with no pairing agreements even for Government MPs who were gravely ill. Following behind-the-scenes peace negotiations, on 22 June the PM (the late Jim Callaghan) made a statement indicating that since the procedural propriety of the events of 27 May were in doubt, there would be a re-run.

On 29 June, therefore, the Leader of the Opposition (the late Baroness – then Mrs – Thatcher) moved to re-commit the Bill to a Select Committee and follow the hybrid procedure. That motion was preceded by one that provided that in the event of a tie the Speaker would (against precedent) declare the question agreed to. Both motions were defeated, the substantive motion by 311 to 297. Some MPs had evidently changed sides.

Although that was the end of the Bill’s brush with hybridity, it was not the end of the procedural shenanigans excited by it. It proceeded as a normal Public Bill rather than going through the hybrid procedures, but by the end of the Session in November 1976 the Commons and the Lords had failed to agree and the Bill was ‘lost’ for a second time.

In the next Session, the Bill was (re-)introduced for the third time. On 1 December, a procedural motion (in order to be able to invoke Parliament Act procedures) was agreed and the Second Reading was given. On 7 December the formulaic Bill stages took place and the House agreed a motion offering possible conciliation amendments to the Lords while reserving its Parliament Act powers. The Third Reading was then agreed by 280 to 277. The following March the Commons agreed without division to amendments made by the Lords (in line with the concessions previously offered to them), and the Bill received the Royal Assent without the need to invoke the Parliament Act.

Ironically, within a decade or so the Conservative Government would have re‑privatised all these industries, but never have so many Erskine May footnotes been indebted to the passage of a single piece of legislation. The events of 27 May 1976 were the starting-point of James Graham’s excellent drama This House, which opened in the National Theatre (with the audience seated in a replica House of Commons Chamber) in 2012, and which is well worth seeing if you ever get the chance.

So, what has all this to do with where this post started – the report of the Examiners on the Holocaust Memorial Bill, published in May 2023? Well, it’s another example of hybridity coming as a surprise. It’s a long story, but here is an attempt at a summary.

On Holocaust Memorial Day 2015, shortly before the General Election of that year, then-Prime Minister David Cameron committed the Government to building a Holocaust Memorial. Eventually it was decided to locate the Memorial in the small park, Victoria Tower Gardens, which abuts the House of Lords, overlooking the Thames. When the plans were published it turned out to be much more than a simple memorial, and was a major (some would say intrusive) piece of construction, including an underground learning centre and a structure somewhat like a whale’s ribs above ground – making a significant impact on the small open space.

Westminster City Council refused planning permission on the grounds that it was contrary to their policy to allow any diminution of open space, but even before they had done so the application was ‘called-in’ by Ministers, who accepted the advice of their own inspector and granted permission.

Several well-organised groups of objectors, which included a number of MPs and Peers and some prominent members of the Jewish community, then took the Secretary of State to judicial review. Thanks mainly to archival detective work by a former Commons Clerk and notable historian of London, Dorian Gerhold, the court ruled that the proposed development contravened the provisions of a private Act which had created the present gardens – the London County Council (Improvements) Act 1900. Section 8(1) of this Act provided for the land in question to “be laid out and maintained in the manner hereinafter provided for use as a garden open to the public and as an integral part of the existing Victoria Tower Garden …”. The Secretary of State was refused leave to appeal the decision. (This whole saga has been thoroughly reported by the legal commentator Joshua Rozenberg if you want more detail.)

The Government seems determined to press on with the large-scale memorial proposed, and disinclined to compromise by locating the learning centre elsewhere – for example, as proposed by several objectors, at the Imperial War Museum which already has a Holocaust memorial gallery and which is less than a mile away across Lambeth Bridge. So in February 2023 the Government introduced into the House of Commons the Holocaust Memorial Bill, the effect of which would be to set aside the provisions of the 1900 private Act which the court concluded had voided the permission to allow the construction of the memorial to go ahead. The title of the Bill is a bit odd (it should really have been the ‘Victoria Tower Gardens Bill’), the provisions of clause 1 to make it public policy to build the memorial are not obviously necessary and, oddly, it does not say that the memorial must be on the chosen site.

Being prima facie hybrid, the Bill was then referred to the Examiners of Petitions for Private Bills and, after hearing evidence from what are quaintly (and entirely coincidentally) known as ‘memorialists’, they produced the report with which this post started. They concluded that the Bill did indeed differently affect the interests of those who live (and one might add, though the Examiners did not, work) in the vicinity of the Gardens compared to other citizens, and was therefore (contrary to the argument of the Government’s lawyers when memorialising before them) hybrid.

The Government did then have the option of trying Michael Foot’s ruse of proposing a motion to set aside the consequences of the Examiners’ decision, but it did not attempt to do so. On 28 June 2023 the Commons gave the Bill a Second Reading and then agreed two subsidiary motions establishing the customary Select Committee (of five MPs) to consider petitions of objection or those seeking amendment, and giving that Committee instructions on how it was to proceed. The instructions included a provision that the Committee could not consider the validity of the decision to ignore the 1900 Act. A proposal to remove this exclusion was the subject of an amendment proposed by the Father of the House, Sir Peter Bottomley, which was overwhelmingly defeated.

The deadline for petitions was set for 24 July 2023 and the 10 received have been published. The Committee has not yet been populated with MPs, but when it has it will presumably begin its work later in the Autumn, first deciding whether the petitioners have ‘standing’ and then hearing from those that are deemed to do so. The field will be small compared to the HS2 or Crossrail Bills. The Select Committee will then make its report. After that, the Bill may proceed further as if a normal Public Bill. It is too late for it plausibly to complete its progress by the end of the 2022-23 Session, and the House has already agreed, in a further motion moved after the Second Reading, that it will be ‘carried-over’ into the next Session. At some point it will be sent to the Lords (where, it seems, there is considerable resistance already), who will presumably conduct their own hearings from petitioners.

We cannot know whether the Bill will make it to Royal Assent unscathed, and there must be some doubt whether it will get there before the next dissolution. But this small controversy has lifted a corner on an intriguing and little-known element of parliamentary procedure, and one in which the public have an opportunity to make representations directly to Parliament during the passage of legislation. It is a small-scale reenactment of the kind of proceedings which in past centuries occupied the larger part of backbenchers’ work on legislative scrutiny, and one where they may still wield considerably more power and influence than they do during the normal legislative scrutiny process.

Evans, P. (15 October 2023), Hybrid Bills and Parliament: History, procedure and controversies (Hansard Society blog)

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