The term Private Acts of Parliament (PA) is widely used to include local Acts, that benefit organizations such as local authorities or authorize major infrastructure projects and are often of limited geographical extent, or personal Acts that benefit individuals. This post considers the reasons for the decline in the enaction of Local Acts of Parliament (LAs), which began in the nineteenth century with the process of enacting local legislation by provisional order. Provisional orders were introduced as a substitute for LAs and were issued by a Minister following a local inquiry, under the authority of an Act of Parliament, but required a later individual and specific confirmatory Act of Parliament. Although their occasional use has persisted, they in turn were largely replaced by Special Procedure Orders following the passing of the Statutory Orders (Special Procedure) Act in 1945.

The Parliamentary procedure for LAs differs from that of Public General Bills. Briefly the introduction of a private bill is preceded by notices to inform interested parties and each bill is assessed by examiners (officials and members) of each house, to ensure they meet the requirements contained in its standing orders. If it does, and following its first two readings, it is referred to a committee which first proves the preamble. Proving the preamble is the process whereby the promoters satisfy the committee of the expedience of the bill in addressing the mischief it is intended to cure. If the preamble is proved the bill is then considered clause by clause by a committee consisting of a chairman and back bench peers or MPs. Ministers are not usually involved.

If any interested party petitions against a bill, the committee’s proceedings resemble a judicial hearing with witnesses, counsel representing both promotor and petitioner (termed parliamentary agents) and input from government departments. Counsel may quote previous decisions of private bill committees to strengthen their client’s case – similar to the use of case law in the courts. After the committee stage in the Lords, the bill is sent for a third reading and in the Commons, there is a report stage.

While the more active use of Local Acts was recommended by the Brown Commission report in 2022, the current government’s recent White Paper on English devolution published in December 2024 makes no mention of Local Acts, suggesting expansion of their use is not planned. LAs are still occasionally enacted with a single LA in 2024 and two in 2022. Some themes can be discerned in the LAs that were enacted with three of the LAs enacted since 2017 addressing the reuse of burial plots in cemeteries that had run out of space for new interments and three enacted in 2010 (1LA) 2014 (2LAs) related to Filming on Highways in county council areas.

Reasons for the reduced promotion of Local Acts

In the past many LAs related to the development of infrastructure and to health and safety matters which are now the subject of General Acts. Consideration of such bills consumed a lot of parliamentary time but did not allow for the co-option of expert assessors. Following the report of a joint committee of the two Houses in 1988 when 34 LAs were enacted, the Transport and Works Act 1992 provided new procedures for approving light railways, tramways, underground railways, inland waterways, canals, and river diversions that avoided the need for LAs and resulted in a reduction to 21 LAs in 1992 and 5 in 1998 when the last commencement order for the act was approved. (For a detailed discussion of the above see Heatley 2024).

Thus, the reduced use of these Acts is the result of a deliberate initiative by Parliament to simplify the process of enacting local legislation, saving money for the relevant local authority and time for the legislature. Arguably since these may involve local consultation rather than attending a parliamentary committee in London, they also improve public participation locally.

Parliamentarians’ reservations

Given the increased use of secondary legislation to enable local projects, why do LAs continue to be enacted? One reason is a reluctance on the part of government to legislate nationally on some issues, preferring to leave it to Local Authorities to promote LAs where those councils regard issues as not being adequately addressed by Public General Acts, e.g. where they regard this legislation as outdated or inadequate to address problems experienced locally. However, such problems may be shared by many authorities resulting in large numbers of essentially similar bills to address these issues.

Parliamentarians involved in committees scrutinising local bills have expressed concerns (at para 1273) regarding this approach although in respect of one bill, which dealt with street trading and an attempt by a local authority to exclude pedlars from its city centre, the government’s response was to reiterate a view that the case for national legislation, which in that instance would have affected all 410 local authorities nationally, (at column 1398), had not been made out.

Cost

Cost may represent a significant factor in frustrating any ambition to increase the use of LAs by local authorities. Even the cost of promoting an order, which provided for the appointment of harbour commissioners with relevant experience (SI 2002, No 306), which had been drafted in accordance with a government Guide to Good Governance, was more than the Whitehaven Harbour Commissioners could afford (para 5). The cost of promoting legislation may therefore be easier for some local authorities to afford than others, resulting in the accentuation of disadvantages from authority to authority to the advantage of the more affluent. In Whitehaven, the government had to step in and fund the order.

Inconsistency and duplication of local acts

Variations can occur even when local bills promoted by different authorities and addressing the same issues are being examined by the same parliamentary committee. For example, when the Leeds, Reading, Canterbury and Nottingham bills regarding street trading were being considered in 2011, it was admitted that different restrictions would be imposed on pedlars even though these bills were being considered at the same time by the same committee.

On the other hand, in order to keep up with their neighbours, councils may find it necessary to promote similar or identical bills (the Buckinghamshire County Council (Filming on Highways) Act 2014 and the Hertfordshire County Council (Filming on Highways) Act 2014 are identical), each essentially duplicating its predecessor and utilising parliamentary time and local government resources, arguably unnecessarily.

Prior to the Local Government Act 1972 there was a suggestion that government legislation should incorporate provisions that were being generally incorporated in LAs (at para 104) but because of pressures on parliamentary time this rarely happened. Existing General Acts often include schedules which local authorities can adopt following appropriate consultation and approval by the council but which otherwise are generally available to all authorities. Potentially combining these two options could avoid the repetition of identical legislation e.g. if a certain number of councils succeeded or attempted to pass legislation which the relevant government department considered similar, the provisions could be included as options in a schedule to a relevant general bill.

This may present a better alternative to ensure local legislation is standardised whilst leaving it to local authorities to decide whether they wish to govern their area by adopting the provisions or contracting out. This would avoid the costs, use of parliamentary time and confusion of the current system and ensure standardisation of legislation, between the authorities adopting it.

The nature of primary local legislation

One disadvantage of enacting primary legislation is that it can often only be amended or repealed by further primary legislation. Where it becomes out of date this may prevent the body pursuing plans which in modern society would be more advantageous. For example, the Allhallows Staining Church Bill was promoted to allow a former church yard in central London to be developed, amongst other things, to provide a more suitable setting for a grade 1 listed building. The bill was designed to place “any future development of the land subject to the ordinary law alone” (para 15) so its trustees actually preferred to be subject to the general law applicable to everyone rather than to the special treatment resulting from a further private act, as their agent stated. In this instance a further LA was required to remove the adverse effects of the earlier one. Although the trustees could have amended it to suit their specific needs they recognised that that would recreate the potential for a similar situation arising in the future and preferred to follow the general public law rather than having tailored local legislation to suit their individual needs.

A LA may interact adversely with public legislation resulting in a disadvantage to the body it was designed to serve. For example, private legislation enacted as far back as 1690 created uncertainty as to the status of the trustees of the Haberdashers’ Aske’s Charity and as a result, it was necessary to enact further private legislation in 2016 to determine the fact, because otherwise the charity would have found difficulty in recruiting trustees.

Outdated legislation

In the past, in order to avoid the risk of redundant local legislation causing problems for the future, bills included time limits so that if an initiative such as the building of infrastructure was not completed within a certain time, the right to undertake the development lapsed and a further Act would have been needed to achieve it. For example, in the Great Yarmouth Corporation Act 1899, sections 7 and 28 required that the compulsory purchase of particular land and completion of a tramway respectively should be achieved within five years of the passing of the Act.

Difficulties with consultation and oversight

A feature of early street trading LAs, enacted in the early years of the first decade of the century was ignorance of the proposed legislation by the pedlars, who the legislation was aimed at regulating, with the result that they did not petition against them (para 335). It being primary legislation meant that they could not challenge those provisions of the LAs that affected them. The reason for this failure to alert pedlars to impending legislation that would impinge on their activities is unclear. Lord Eccles, a committee member, commented in 2007 on “the desire to homogenise the shopping experience and shopping centres” and said, “there was quite a whiff of local enforcement going on against the pedlars that came through from the witnesses, and I found that quite unpleasant and disturbing.”

In contrast to an Act of Parliament, the statutory instruments and provisional orders described above require a process of local consultation before they are enacted. If there were problems in how this consultation was undertaken the legislation could be challenged in the courts, in the case of statutory instruments even following their enactment. This relief does not apply to primary legislation, where (as in the example above) there have been situations where those affected did not know of the proposals until they were faced with their enforcement, after they were enacted.

In their anxiety to enact legislation that addresses mischief the authority considers sufficiently acute to require the promotion of primary legislation it may undertake a flawed consultation or omit it completely. A parliamentary committee whose members originate in other parts of the country may not appreciate that this is the case and allow a bill to proceed unknowingly.

Where such consultation is considered by the parliamentary committee there can be a considerable discussion about its nature and adequacy. The House of Commons committee examining the Bishop’s Stortford Cemetery Act (on 20/2/2024) spent considerable time discussing whether the notice advertising changes to be introduced should be published in the national or local press. Finally, and at their request, they left the decision to the promotors (para 36-45).

Yet even when aware of such proposed legislation, petitioners may be put off because of the cost of employing a parliamentary agent and counsel to present their case, the stress of appearing before the committee or the risk of incurring costs if the committee finds against them and their petition is unsuccessful.

Problems with Letters of Undertakings

The committee considering the New Southgate Cemetery bill required the cemetery’s management to place an advertisement in a newspaper circulated in the London area. This was confirmed in a letter of undertakings provided by them to the committee. The use of letters of undertakings is a common way of resolving differences between promotors and petitioners and is used rather than amending the bill or adding the undertakings as a schedule, in this case to the New Southgate Cemetery Act 2017. The failure to incorporate them into the Act may present difficulties later if interested parties are not aware of them. This undertaking is not included in the associated documents that are posted with the Act on the Legislation UK website although it is included on the parliamentary website accompanying details of the bill’s progress through Parliament and on the website of the promoters. Accessing these however would require the citizen to deliberately search for them and even then, their location is inconsistent from Act to Act.

Conclusion

The progressive decrease in the numbers of LAs enacted reflects the development of alternative, often more representative, ways of enacting local legislation albeit as secondary instruments. In addition to local scrutiny before enactment, such local legislation is potentially subject to judicial review which ensures that appropriate processes have been properly followed and provides a remedy if they have not.

Scrutiny of local bills depends on supervision by local MPs and members of the promoting authorities representing their constituents’ views and seeking the public’s views through formal consultation. The first of these is unavailable if the matter is decided in Parliament by committee members who do not have links with the locality.

The cost of promoting local bills – since even if unopposed parliamentary agents must be appointed and fees paid to Parliament – and the diversion of resources such as officer time in the preparation of instructions by in-house lawyers and attendance of senior staff at committee hearings, are likely to advantage those authorities that are already in a favourable financial position because they have the resources to promote the bills.

The difficulties inherent in deciding what represents an appropriate consultation are also open to debate as indicated in the discussions around how interested parties should be made aware of changes at Bishop’s Stortford’s cemetery as described above. With secondary legislation, further representations can be made to the promoting council by interested parties even after a resolution has been approved, to have it reversed or reviewed by the courts providing a second bite of the cherry. By contrast UK primary legislation can only be judicially reviewed if it offends the Human Rights Act. In consequence, interested individuals may be faced with legislation that they cannot change.

The survival of LAs indicates a continued need for local authorities to be able to use this legislative process to deal with issues that may be unique to them and for which there is no convenient alternative, for example where there is outdated local primary legislation specific to them and therefore requiring a further specific LA to amend and or repeal it. Where multiple similar bills are promoted they may highlight the need for general legislation, with the option, for those authorities who do not require it, to contract out. This would avoid some areas being disadvantaged for the reasons suggested above or because they were awaiting their own bill making its way through the private bills process. This proposal also means that if there is a need to modify or repeal the legislation it can be achieved with a single general public instrument rather than further multiple local bills being promoted with expensive legal costs to the local authorities and inefficient use of parliamentary time.

Mark K Heatley (LLM) is a Solicitor at NP Law Norwich.

(Suggested citation: M. K. Heatley, ‘The Disadvantages of Local Legislation’, U.K. Const. L. Blog (11th February 2025) (available at https://ukconstitutionallaw.org/))