Principles of Private Bill Procedure
As the Speaker noted in 1971, private bill procedure was established to protect the public against the uncontrolled granting of special powers to private interests.23 The affected person or organization petitions Parliament to grant some extraordinary favour set down in a bill. The facts upon which the bill is based are examined by both Houses of Parliament. If deemed necessary, the committee to which the private bill is referred may call witnesses to testify, and the committee will adjudicate whether the need for the bill has been demonstrated. Thus, in considering private bills, Parliament acts in both a judicial and legislative capacity. Like a court, Parliament will hear all parties involved and decide whether or not the interests of private parties justify additional rights or exemptions from the general law; as a legislature overseeing the passage of a bill, it is watchful over the interests of the public.24
Four fundamental principles underlie and define private bill procedure as set out in the Standing Orders and the procedural authorities.25 These principles may be expressed in the following terms:
- A private bill should be passed only at the explicit request of the persons who are to benefit from the legislation.
- Pertinent information regarding a private bill should be made available to all interested persons.
- All persons or bodies affected by a private bill should be heard and the need for the bill demonstrated.
- The financial burden of considering a bill for the benefit of private interests should not be borne solely by the public treasury.
These principles are examined in detail below.
Principle 1. A Private Bill Should Be Passed only at the Explicit Request of the Persons who Are to Benefit from the Legislation
In the decision to proceed with a private bill, there is a balance to be achieved between the undoubted right of Parliament to initiate legislation and the recognition of the ancient fundamental right to petition Parliament for the redress of grievances.26 Unlike a public bill, which may be introduced after 48 hours’ notice either by the government (in the person of a Minister) or by a private Member, a private bill is presented only after a private Member has filed with the Clerk of the House a petition from the applicant for a private bill.27 It is a well-established principle that Ministers may not sponsor private bills as the Crown cannot petition itself.28
The rules respecting public petitions generally apply to petitions for private bills.29 A private bill petition is presented to the House by a private Member who has signed the back of the petition and who will be acting as sponsor of the private bill.30 The petition for a private bill sets out the reasons why special legislation is requested, explaining what the legislation is intended to accomplish, and concludes with an explicit request that such legislation be enacted. The petition must bear the signatures of the persons who are requesting the legislation and who are to benefit from it. The sponsor is responsible for ensuring that the form of the petition complies with the requirements set down in the Standing Orders.31 The Member may present the petition at any time during a sitting by filing it with the Clerk of the House.32 The usual practice, however, is for the petitioner for a private bill, or the petitioner’s parliamentary agent (see below), to deposit the petition with the Clerk of Petitions (a House official responsible for examining and reporting to the House on the form of petitions) who, after having the petition endorsed by the sponsoring Member, sees that it is filed with the Clerk of the House.
In addition to filing a petition, the applicant must deposit a copy of the bill, in English or French, with the Clerk of the House not later than the first day of the session if the bill is to originate in the House.33 An official appointed by the Clerk of the House, acting as Examiner of Petitions for Private Bills, examines and, if necessary, revises the bill before it is printed to ensure that it is drafted in accordance with the Standing Orders of the House of Commons.34
Unlike a public bill, which is introduced by either a Minister or a private Member and subsequently belongs to the House of Commons, a private bill belongs to the applicant and not to the Member of Parliament sponsoring the bill nor to the House. Should the applicant decide not to proceed any further with the bill, the committee to which the bill was referred after second reading will report to the House accordingly.35
Although under no obligation to do so, the promoter of a private bill may choose to be represented before the House or any of its committees by someone who is known as the promoter’s “parliamentary agent”. While a Member of Parliament must agree to present the petition and sponsor the bill, a Member cannot serve as parliamentary agent.36 In order for someone to act as parliamentary agent, that person must be so authorized by the Speaker and is personally responsible to the Speaker for the observance of the rules, practices and procedures of Parliament.37 The parliamentary agent acts as adviser and counsel for the petitioners throughout the various legislative stages leading to the adoption of the private bill and is responsible for the payment of all charges and fees prescribed by the Standing Orders.
No person may be registered as a parliamentary agent during any session without first paying a fee of $25.38 The person must also be involved in promoting or opposing a private bill or petition pending in Parliament during that session. However, because most private bills originate in the Senate, the parliamentary agent is registered and pays the $25 fee only if asked to represent the promoter before a House committee. Any parliamentary agent who wilfully violates the Standing Orders or practices of Parliament or who deliberately behaves in an unbecoming manner when conducting proceedings before Parliament is liable to be barred, at the discretion of the Speaker, either permanently or temporarily, from exercising his or her duties as a parliamentary agent.39
Principle 2. Pertinent Information Regarding a Private Bill Should Be Made Available to All Interested Persons
The procedural requirements found in the Standing Orders respecting notice at various stages of private bills are not only directed towards Members but also to the public. The purpose of these notice provisions is to ensure that any person whose interests may be affected by the requested private legislation is sufficiently notified so that he or she may oppose or support the bill, in whole or in part, before its adoption.
At the beginning of each session, the Clerk of the House publishes in the Canada Gazette the Standing Order respecting notices of applications for private bills.40 Thereafter, a note referring to the previous publication of this Standing Order is published each week in the Canada Gazette.41
The Standing Orders also require that applicants for private bills place a notice of their intention to apply for a bill once a week for four consecutive weeks in the Canada Gazette.42 The published notice should set out the intent of the proposed legislation, indicate during which session it is to be applied for, and provide the name and address of the applicant or the applicant’s parliamentary agent.43 In certain cases, notices must also be sent to certain officials and be published in local newspapers.44 The applicant must provide proof of the publication of the notice by means of a statutory declaration (affidavit) sent to the Clerk of the House.45
Since Members of Parliament may be asked to speak on behalf of the promoter or opponent of a bill, certain public notices are posted regarding the meetings of the committee on a private bill.46 In the case of a bill originating in the Commons, there must be one week’s notice of a committee meeting; in the case of a bill originating in the Senate, the notice period is 24 hours. Lists of all private bills referred to committee, specifying the committee and dates on or after which the bills can be considered, as well as lists of all committee meetings must also be posted.47 Moreover, no significant amendment to a private bill may be proposed in the House unless one day’s notice has been given.48
Finally, in addition to the notices, certain records regarding each private bill prepared by the staff of the House are open for public inspection.49 They contain general information pertaining to the person or group applying for the bill or to the parliamentary agent, to the fees paid and to the proceedings on the bill.
Principle 3. All Persons or Bodies Affected by a Private Bill Should Be Heard and the Need for the Bill Demonstrated
Since a private bill makes certain assertions which are put forth in support of the legislation being sought, these must be proven before Parliament agrees to enact the legislation. The legislative function of Parliament demands that each measure be given due deliberation and orderly consideration. The judicial-like proceedings surrounding private bill practice demand, in addition, that those who would be affected by the bill be heard, or at the very least be given the opportunity to be heard.
The decision of the House to give second reading to a private bill does not mean that the House approves the principle of the bill as is the case for a public bill. Rather, the House gives the bill a second reading conditional upon a committee’s finding that the assertions contained in the petition and repeated in the bill’s preamble are proven.50 While a preamble is optional in a public bill, it is essential in all private bills.51 The procedure thus requires that a private bill be sent to committee so that opponents of the bill may be heard. The committee also considers the bill so that Parliament can satisfy itself that the matters raised in the preamble of the bill are true and that the provisions of the bill are a proper response to those assertions. The bill as reported from the committee, with or without amendments, may be said to be the committee’s decision on the petitioner’s request.52
Private bills typically relate to subjects of a particular character, some of them purely personal, and thus do not evoke extensive debate in the House. The private interests being asserted by them, however, may occasionally infringe other private rights. In this respect, the committee on a private bill carries out not just a legislative function but sits in a quasi-judicial capacity, hearing all parties concerned and ruling on whether the petitioner’s request should be granted. The committee must also be vigilant in preventing frauds from being perpetrated on Parliament by cross-examining the promoters on their claims made in the bill’s preamble.53
The committee on a private bill does not hear witnesses in the same sense that a committee studying a public bill does. The promoter of the bill, who may or may not be represented by counsel, appears before the committee as the petitioner for relief of a legislative nature which the courts and governmental agencies cannot provide. The promoter, as opposed to the committee, may call witnesses to support the assertions put forth in the preamble of the bill.54
Any opponents of a bill, whether or not represented by counsel, may also address the committee and may call witnesses in support of their position when the committee begins consideration of the particular clause or clauses being opposed.55 However, before an opponent of a private bill may appear before the committee, a petition against that part of the bill found to be objectionable must first be presented to the House. The petition must state the grounds for the objection and be presented to the House on the opponent’s behalf by a Member, who may submit it to the Clerk of the House at any time while the bill is under consideration in the House or in committee. After the Clerk of Petitions has reported that the petition is in conformity with the rules, it is deemed referred to the committee studying the bill.56 The promoter may challenge the locus standi, or right to appear, of any opponent by questioning whether the opponent’s interests would really be affected by the proposed legislation. The committee alone has the power to decide whether an opponent has standing and should be heard.57 If the opponent is heard, the promoter may cross-examine the opponent and the opponent’s witnesses, and the opponent may likewise cross-examine the promoter and the promoter’s witnesses. However, the opponents may be heard only on the grounds stated in their petition.58 If the committee does not feel that the grounds stated in the petition are specific enough, the committee may request that the opponent to the bill provide a more specific statement.59 No petitioners will be heard against the preamble unless, in their petition, they specifically ask to be heard against it.60
When the parliamentary agent is addressing the committee, or while witnesses are under examination, the committee room is an open court, but when the committee deliberates, all the agents, witnesses and strangers are ordered to withdraw and the committee sits in camera. When the committee has come to a decision, the doors are opened and the Chair informs the parties of the committee’s decision.61
Principle 4. The Financial Burden of Considering a Bill for the Benefit of Private Interests Should Not Be Borne Solely by the Public Treasury
Since a private bill is for the benefit of private interests, the financial burden of considering such a bill should not be borne solely by the public treasury. It is in recognition of this principle that the Standing Orders set out fees and charges which are imposed on the promoter and which must be paid before the bill can proceed.62
Any person who wishes to have a private bill enacted must deposit with the Clerk of the House on the first day of the session a copy of the bill in either French or English. A sum of money sufficient to cover the printing and translation costs must be paid at this time.63 After second reading of the private bill, but before its consideration by a committee, the applicant must pay the cost of printing the act in the statutes and a fee of $500.64 If the purpose of the bill is to increase a company’s capital stock, additional charges may be levied based on a scale found in the Standing Orders and corresponding to the requested capital stock increase.65 Other charges, such as for an exemption from a particular Standing Order, or for reprinting a bill amended in committee, may also be levied. A statement of these charges is prepared by the Chief Clerk of Private Bills66 and remitted to the promoter or parliamentary agent, who subsequently deposits the fees with the Clerk of the House.67 In practice, however, no additional charges are imposed for most private bills even when committee meetings are held and the proceedings published. The fees paid on a private bill that has not become law may be refunded.68
The House has, on occasion, waived its fees for private bills. In the early years of Confederation, fees were frequently waived,69 especially when no commercial interests were affected.70 More recently, prior to the changes to the Standing Orders in 1994, when petitions for private bills had to be introduced within the first six weeks of a session, the House often saw fit to waive its fees for late petitions.71