Over the past 50 years, around four Private Acts of Parliament have been enacted annually, with a maximum of 23 in 1992. Private Acts of Parliament (PA) include local Acts, that benefit organizations such as local authorities or authorize major infrastructure projects and are often of limited geographical extent, and personal Acts that benefit individuals. No personal Acts have been enacted since 1987.
PAs are of significance in local government practice, particularly if a client department or authority wishes to undertake a course of action but finds that it is governed by a PA, sometimes enacted many years before. The PA may have been promoted by another body such as a neighbouring authority, by that authority itself or its predecessor. On occasion the client may only have become aware of the PA because they have been advised of its existence by the other party. PAs since 1991 are available on the Office of Public Sector Information website, but in the case of an older Act it may be difficult to locate its text and sources include the parliamentary archives, Law Society, and local archives.
Very little has been written about how the courts approach these acts and if their approach differs from their treatment of public acts. Since this could reflect a paucity of cases where PAs have been considered by the courts, as opposed to a gap in academic consideration, this blog aims to assess the frequency with which the higher courts – the Court of Appeal (CA), House of Lords (HL), its successor the Supreme Court (SC) or Privy Council (PC) – consider PAs and to quantify the outcomes in such cases. In carrying out the survey several possible reforms in the Private Bill process became obvious which would save money and parliamentary time, and these are described. This study was limited to the last 50 years.
To explore the volume of cases, searches were undertaken on Westlaw and Lexis Nexis for cases where the term “Private Act of Parliament” was included anywhere in the text in the period 1970 to July 2021. The results were screened and duplicates eliminated. The law reports of the 54 cases identified in this way were downloaded and examined. (The use of more general terms such as “private acts” yielded a large number of cases that were irrelevant because they related to the behaviour of one of the parties in the litigation).
On preliminary screening, mention of the PA was judged as having no bearing on the outcome in 21 cases (7 HL, 1 SC and 13 CA). In five cases, one of the parties was a company (4) or church (1) established by PA and this was mentioned in passing. In three cases, PAs were mentioned in passing in the narrative tracing the development of the law but had no bearing on the case in hand, e.g., a comment was made that historically land was enclosed by PA (1). PAs were mentioned in some instances as possible solutions to issues under consideration e.g., as a way of securing a marriage within the prohibited degrees of affinity, specifically one between a father-in-law and his daughter in law (1) to enable the grant of a licence (1), to alter the status of a right of way or village green (4) or permit the grant of an easement (1). In one, counsel presented three lines of argument in support of their case one of which included arguments based on the previous consideration of PAs. The judge declined to consider that and another line of argument on the basis that they had been able to determine the matter using the third line of argument. They did not provide details of why they chose this line of argument in preference to the other two. In two cases the need for a PA to secure a divorce in England in the early nineteenth century was mentioned and in one to enable legitimisation in Scotland until the second half of the twentieth. In one case the sections of the Act relied on had been repealed and in the final case involving a compulsory purchase order, the order was likened to a PA.
The 33 cases considered further, (24 CA, 7 HL, one SC and one PC) considered matters relating to land (8 cases) public law/judicial review, (5 cases) tort, contract, planning (4 cases each) trusts (2 cases) and property, licences, disclosure of information, tax, libel, and a constitutional matter related to the repatriation of the Canadian Constitution (1 case each).
In ten cases the PA created statutory powers that were key to the outcome of the case e.g. where the act created a statutory function or obligation that would be frustrated if a litigant were allowed to pursue a claim of tortuous or criminal liability which would otherwise be possible were it not for the provisions of the Act, such as nuisance resulting from the vibration and noises coming from an oil refinery (Allen (Respondent) v Gulf Oil Refining Limited (Appellants).
In ten more cases, principles developed previously in the interpretation of PAs were considered and applied, the most obvious being that a court cannot examine the circumstances by which a Parliamentary Act is enacted (the enrolled Act rule – see Pickin (1974).
In eight cases, the treatment of a PA by the courts previously was included in a line of argument but not applied in that case (e.g.R. v. Herrod, ex p. Leeds City Council  A.C. 403) where the definition adopted by the court was that in a public Act which was similar but not identical to that in many local Acts.
In two cases, they were considered as part of a background discussion of the law e.g. in the arguments advanced by counsel and considered in the court below but not applied by the appellant court (e. g. Thames Water Utilities Ltd v London Underground Ltd  ). In one case the PA was considered but judged to be silent on the matter under consideration (since the PA compulsorily purchasing common land did not extinguish the rights of access of the general public (Lewis v Mid Glamorgan County Council 1 All ER 760) and in the other case the provisions of the PA were used when applying the law as established in a general Act (Society of Lloyd’s v Clementson  1 LRLR 307).
The final case in this group of sought the striking down of the Act that repatriated the Canadian Constitution and this was refused because of the prohibition on looking behind an Act of the UK parliament. This case is mentioned separately because it reflected the constitutional status of another Commonwealth country and given their historic constitutional development, is unlikely to have any future bearing on decisions of the courts. (Manuel And Others V. Attorney-General Noltcho and Others v Attorney-General M. No. 5138] [1982 No. 90] –  Ch. 77).
Several principles of Statutory Interpretation were stated in individual judgments identified during this study.
- The interpretation of a PA is undertaken in the context of the general law at the time it was enacted (Billington and Other V Stafford Borough Council CA 14 January 1983).
- Existing common law rights are not displaced by a PA (Vadim Schmidt v. Rosewood Trust Limited), unless its wording clearly provides for that (Lewis v Mid Glamorgan County Council, Voisey v Cardiff City Council).
- PAs are interpreted strictly against the promotor and in favour of the subject or state (Voisey v Cardiff City Council).
- A duty of care does not arise if acting within the powers granted by the PA but liability may arise when acting outside those powers (Anns v. London Borough Of Merton) or if they are not exercised with care ( The Home Office v The Dorset Yacht Company Limited).
- A PA may create the terms of a contract which if accepted are binding (Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v. Wallbank & Anor).
- A corporation incorporated by a PA does not become a public body (West, R (on the application of) v Lloyd’s Of London.
- The terms of the Act must be applied to give it efficacy (Alexandra Palace Ski Centre LTD v The Mayor and Burgesses of Haringey as Trustees of the Alexandra Palace and Park Charitable Trust).
- The preamble is of importance in the statutory interpretation of PAs (Allen v Gulf Oil Refining Ltd).
- The court will not look behind how an act is enacted (Martin v O’Sullivan (Inspector of Taxes)  STC 258 citing Pickin or strike one down.
- PAs create a discretion that a council must exercise judicially (R v Barnsley Metropolitan Borough Council, ex parte Hook 3 All ER 452).
PAs have historically been instrumental in the development of principles of statutory interpretation that are more generally applicable such as the enrolled Act rule (Pickin (1974), Edinburgh & Dalkeith Railway Company v Wauchope). Perhaps a less obvious comparison is the principle that a PA may create a contract where comparisons could be drawn with Section 106 of The Town and Country Planning Act 1990 which provides for the creation of contracts between local authorities and developers and determine their parameters. At the other end of the scale, whereas PAs are limited by the common law and interpreted in the context of its principles at the time of enactment, a public act alters it. Bennion and others describe this as the rug principle. Briefly a Public Act is like a rug that is spread on the “floor” of common law and equity concealing “for the area it covers the texture underneath” (Jones O, Bennion on Statutory Interpretation Sixth edition (Lexis Nexis 2013).
Perhaps however the most obvious difference is the presence of preamble’s in private acts. In contrast it is now unusual to find preambles in public acts although the courts still consider preambles in older public acts such as the Charitable Use Act 1601 and they are encountered in cases considering legislation arising in other jurisdictions including the EU where it is described as a relevant factor (R (on the application of Highbury Poultry Farm Produce Ltd) (Appellant) v Crown Prosecution Service (Respondent)  ) in interpreting international conventions such as the Hague Convention on the Civil Aspects of International Child Abduction (1980) (B (A Child) (Abduction: Habitual Residence)), and in cases considering regulations in the exercise of powers conferred by Public Acts such as the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. (R (Dolan and others) v SSHSC and another ).
The identification of preambles in more recent public acts may however represent a looseness of description. In Asda v Brierley  [at 9-10], a lengthy paragraph at the start of the Equality Act 2010 and beginning with the words “an act to” is described as the long title. The much shorter paragraph at the beginning of the Equal Pay Act 1970, which is one line long and described as the preamble begins with the same words. It would appear therefore that the terms are describing the same thing and differ considerably from what in recent years is described as the “introductory text” in the table of contents for PAs which appear below the long title and tend to begin with the words “WHEREAS- it is expedient- – – -” and then go on to outline the purpose of the act. Support for the argument that this is what the judiciary consider represents the preamble in a modern Private Act comes from consideration of Allen v Gulf Oil Refining  , where the portion of the text described throughout the judgment as the preamble, by three of the five law lords who mentioned it, cited text to be found in this part of the act.
Suggestions for Reform
In one case the Act was found incidentally during a conveyance. It dated from 1853 and frustrated the councils desire to move the city market (Billington & Others v Stafford Borough Council CA (Civ) 14 January 1983 Official Transcripts (1980-1989). To avoid this scenario in the future, there may be an argument for introducing sunset clauses into future PAs although their inclusion since 1991 on the parliamentary website should avoid this problem. There may also be an argument for including an option for more recent Pas that they can be (repeatedly) extended for a period of perhaps 20 years by application to the Secretary of State and negative parliamentary procedure. Such a sunset clause might become operative after 50 or 100 years. This would at least confirm that the council or company was aware of the act and still found it useful. It would also avoid the possibility of PAs being overlooked, with the problems of subsequent illegality. This would also ensure that forgotten, out of date legislation did not “pop up” resulting in potentially costly surprises. Given the difficulty sometimes in recovering the text of some PAs there could also be a requirement, if this measure were extended retrospectively to existing PAs, that the applicants provide copies with their application. If an Act were useful but required amendment as some clauses were obsolete a more complex procedure would be appropriate possibly by Affirmative Order.
I would not suggest applying any time limit to Private Acts as, for example, a marriage lapsing 50 or 100 years after it was contracted, even though the parties were dead could be distressing for descendants and may cause problems, for example, if the Inland Revenue took the view that property previously passing tax free between spouses was now subject to inheritance tax.
Several of the cases cited situations where in the past individual PAs were passed to secure powers, for example to enclose land or divorce a spouse. Public acts were introduced later that permitted individuals or bodies to bypass the expensive and time-consuming process of securing a PA. PAs continue to allow more extensive powers in a defined geographical area with the opportunity to object to these, afforded to interested individuals. On the other hand, those powers would not be made available to those individuals and bodies who did not have the resources to petition for the necessary bill and objection depends on public awareness of the bill and the process to be followed, itself potentially an expensive process, particularly if counsel is employed and the expenses of witnesses are incurred. Further Public Acts to address some of the issues which were highlighted by the judges hearing cases, for example, in regard to village greens or marriage within the prohibited degrees, may therefore be desirable to address occasional instances of injustice at lower cost, with perhaps administrative review at the request of interested parties to replace petitioning parliament. Such an approach is now routine in matters that were previously subject to PAs, such as when a compulsory purchase order is contested.
Local acts are perceived as conveying value to the localities they affect as demonstrated by the recent history of some local legislation. In 2014 two PAs were passed that conferred powers on two adjacent county councils (Buckinghamshire and Hertfordshire) in relation to filming on highways. These contained identical text apart from the name of the counties! A single public act that would have enabled all county councils to exercise the same powers in the very unusual scenarios to which they would have been applied, would have avoided the duplication associated with the two PAs, saved parliamentary time and provided these benefits to other counties where filming on location occurs regularly and provide inbuilt flexibility for new developments such as the movement of numerous TV facilities to Salford and away from London and the surrounding counties.
A private members bill, The Road Traffic Regulation (Temporary Closure for Filming) Bill, was introduced in the same year as these Acts but was not enacted and a suggestion by one county council to have a single act because of the advantages that would provide, as listed above was rejected by the other. (Hansard Volume 585: debated on Tuesday 9 September 2014 col 878). The desire to secure the legislation because of the financial advantages it secured for the two counties and those that already had similar legislation was widely commented upon by politicians on all sides of the house. The government minister reinforced this but made no comment about the desirability of national legislation or gave reasons for not introducing it or supporting the private members bill mentioned above. The matter was not raised when evidence was taken before the unopposed Bill Committees for the Hertfordshire or Buckinghamshire Acts.
PAs have had a role in the development of the principle of parliamentary sovereignty and legislative supremacy and in statutory interpretation generally but are also subject to interpretive limitations not generally applied to public acts. They are enacted following a different parliamentary process which has always been recognized as expensive for the promoter and in parliamentary time. In the past it has been recognized that multiple private acts can be replaced by an encompassing public act. There may be scope for further legislative innovation of this type. Not only would this save time and expense but since Local Acts provide advantages to the area they cover, the powers sought might be usefully extended nationwide.
I wish to thank Alexandra Fisher, Archives Officer, Parliamentary Archives and Profs Alison Young and Michael Gordon for their help in preparing this blog.
Mark Heatley is a trainee solicitor a NP Law.
(Suggested citation: M.K. Heatley, ‘The continued use of Private Acts of Parliament in the United Kingdom’, U.K. Const. L. Blog (4th Oct 2021) (available at https://ukconstitutionallaw.org/))