Holocaust Memorial Bill: note of promoter’s position
Published 24 May 2024
Applies to England
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Introduction
1. The House of Lords provides an opportunity for individuals, groups, organisations or businesses who object to provisions in the Holocaust Memorial Bill to petition against it. The Secretary of State for Levelling-Up, Housing and Communities, as promoter of the Bill, may challenge a petition if he believes that the petition concerns matters which are not within the remit of the Committee or if he believes that the petitioner is not directly and specially affected by the Bill. If a challenge is made, the final decision on whether a petitioner should be heard rests with the Select Committee.
2. Petitioners against a hybrid Bill do not have an automatic right to have their petitions considered by the Select Committee to which the Bill has been referred. Generally speaking, Petitioners are not entitled to appear before the Committee on their petitions unless their petitions allege, and they prove, that their property or interests are directly and specially affected by one or more provisions of the Bill. This entitlement is called “the right to be heard”. In addition, the Standing Orders of the House of Lords relating to Private Business (“Lords S.O.s”) prescribe certain cases in which the Committee may, at its discretion, allow a Petitioner a right to he heard.
3. The Committee will only consider whether a Petitioner has the right to be heard, or whether their petition should be considered as a matter of discretion, if the Promoter has raised the issue in advance by challenging the Petitioner’s right to be heard.
4. The treatment of hybrid Bills making provision for High Speed Rail provides some relevant recent experience in the handling of petitions. When the Phase One Bill was considered in the House of Commons, the Promoter took a cautious approach to challenging Petitioners’ right to be heard and the Committee therefore heard many Petitioners without having the opportunity to consider, and determine, whether they were entitled to be heard. The House of Commons Select Committee commented in its Second Special Report that the Promoter’s initial approach was “understandable”. The Committee continued: “At the start of proceedings and without the benefit of a recent comparable hybrid bill on which to base its decisions, a hybrid bill committee could be expected to want to show latitude to petitioners. (On Crossrail, the promoters challenged no petitions at all.) With the benefit of nearly two years’ experience, we believe that there should be a stricter approach to locus standi [the right to be heard].” (House of Commons Select Committee on the Phase One Bill, Second Special Report of Session 2015-16, HC 129, 22 February, paragraphs 393-4). The stricter approach was endorsed by the House of Lords Select Committee on the Phase One Bill (House of Lords Select Committee on the Phase One Bill, Appendix 2 to the Special Report; 13 June 2016, paragraph 6) and was followed on the Phase 2a and Phase 2b Bills.
5. The Holocaust Memorial Bill differs very significantly from the High Speed Rail Bills: for example it does not include provisions for works or compulsory acquisition that would directly affect property, it concerns a much smaller geographical area, and of course it is a very much shorter Bill. Nevertheless, lessons from the High Speed Rail Bills are valuable and may help to ensure that the Select Committee for the Holocaust Memorial Bill is able to use its time efficiently. The Promoter proposes to follow a broadly similar approach to that taken by the promoters of the High Speed Rail Bills, based on a reasonable and fair application of the rules on the right to be heard which have evolved over many years.
6. The Promoter did not challenge the rights of petitioners to be heard by the Holocaust Memorial Bill Select Committee in the House of Commons. The Commons Select Committee found this unhelpful, noting that “[h]ad the right to be heard challenges gone ahead, it would have clarified the scope of this Committee to be focused on those directly and specially affected by the Bill”. [paragraph 21 of the First Special Report of the Holocaust Memorial Bill Select Committee HC121]
7. The purpose of this note is to outline the framework the Promoter will use to decide whether to challenge a Petitioner’s right to be heard by the Committee.
The right to be heard
8. The principle of entitlement to appear before the Select Committee is set out in Erskine May Parliamentary Practice:
Generally speaking, it may be said that petitioners are not entitled to be heard by the Committee on the bill unless it is proved that their property or interests are directly and specially affected by the bill.
(Erskine May Parliamentary Practice Twenty-fifth Edition at paragraph 44.5).
Members of Parliament
9. Members of Parliament whose constituencies are directly affected by the works proposed by a Bill have a right under Lords S.O. 117A to have their petition against the Bill considered. Although the Holocaust Memorial Bill does not propose works, the Secretary of State would not expect to challenge the right of the Member of Parliament for the constituency including Victoria Tower Gardens to be heard.
Certain representative bodies
10. Lords S.O. 117(1) gives the Committee a discretion to permit a society or association which sufficiently represents a trade, business or interest in a district which is alleged in the petition to be injuriously affected by the Bill to be heard. Under Lords S.O. 117(2) the Committee is also given a discretion to permit a society, association or other body which sufficiently represents amenity, educational, travel or recreational interests alleged in the petition to be adversely affected to a material extent by the Bill to be heard. The text of Lords S.O. 117 is set out in Appendix 1 to this note.
11. Where the right to be heard of an ad hoc group (e.g. a group formed specifically to oppose the Bill) is challenged, they are not normally permitted to be heard on their petition:
The general practice has been [for Hybrid Bill Committees] not to hear petitions presented by an ad hoc group, mainly because the public interest in full examination of environmental and ecological issues, including traffic management and the control of pollution of all sorts, is better achieved by petitions presented by local authorities large and small, and by established bodies with expertise in those areas.
(House of Lords Select Committee on the High Speed Rail Phase One Bill, Appendix 2 to the Special Report; 13 June 2016, paragraph 7.)
12. Action groups are usually not allowed to be heard on their petitions where their right to be heard has been challenged. In contrast, the practice of Committees in both Houses has been to grant a right to be heard to local authorities at different levels of local government and well established national organisations with relevant expertise. (See Appendix 2 to the House of Lords Select Committee Special Report on the Phase One Bill; 21 June 2016, paragraph 7.)
Local authorities or inhabitants of an area
13. Lords S.O. 118 gives the Committee a discretion to permit local authorities or any inhabitants of an area the whole or part of which is alleged in the petition in question to be injuriously affected by the Bill to be heard on their petition. The text of Lords S.O. 118 is set out in Appendix 1 to this note.
14. The precedents reflect the convention that S.O. 118 is directed at groups of persons who are petitioning as representatives of inhabitants of the area. Individual inhabitants are not normally treated as covered by S.O. 118.
15. Although local authorities do not have an automatic right to appear before the Committee, the Promoter will not challenge the right to be heard on their petition of a local authority in whose area Victoria Tower Gardens is situated.
16. The Committee may decide not to exercise the discretion to permit Petitioners to be heard under S.O. 118 on the basis that they do not sufficiently represent inhabitants of an area or that the points made in the petition are similar to those made by a local authority for the area in question or by some other well established amenity body with relevant expertise.
Petitions which challenge the principle of the Bill
17. The Committee will not hear points raised on a petition that challenge the principle of the Bill.
The Promoter’s approach to challenging a Petitioner’s right to be heard
18. Drawing on the recent experience in relation to other hybrid Bills, the Promoter’s approach on this Bill will be generally to challenge the right to be heard of persons petitioning as the inhabitants of an area who make generic points relating to adverse impacts allegedly caused to that area, and to leave it to the Committee to decide whether to exercise their discretion under Lords S.O. 118 to permit the Petitioner to be heard on the petition. As mentioned in paragraph 15, the Promoter will not challenge the right to be heard on their petition of a local authority in whose area Victoria Tower Gardens is situated.
19. This approach follows the recommendation of the 1988 Joint Committee on Private Bill Procedure who in their Report stated:
The Committee consider that it is a fundamental principle of private legislation procedure that only parties specifically affected should be entitled to be heard, and that the rules of locus standi [the right to be heard] must be upheld. If they are allowed to lapse, more of members’ time will be taken up in private bill committees. They recommend that promoters should be encouraged to police the rules of locus standi, and that private bill committees should not treat a reasonable but unsuccessful challenge as a point of prejudice.
[paragraph 101 of the Report HL Paper 97, HC 625 – emphasis in original]
20. The Promoter will also take account of the views expressed by the Holocaust Memorial Bill Select Committee in the House of Commons when deciding whether to challenge a petitioner’s right to be heard in the House of Lords.
Summary
21. To summarise, the issues to be determined by the Lords Committee at a “right to be heard” hearing are:
(a) Whether the Petitioner is entitled to be heard because they can show that their property or interests are directly and specially affected by the Bill.
(b) Where the Petitioner is a society, association or other body which is alleged to represent local trade, business or interest or amenity, educational, travel or recreational interests, whether
(i) the society, association or other body sufficiently represents that interest and
(ii) if so, whether that interest will be injuriously or adversely affected to a material extent by the Bill as introduced and
(iii) if so, whether the discretion of the Committee should be exercised to permit the Petitioner to be heard because, for example, the points made in the petition would otherwise not be considered by the Committee.
(c) Whether the Petitioner has alleged in the petition, and can show, that the Petitioner is sufficiently representative of inhabitants of an area which is adversely affected by the Bill to be covered by Lords S.O. 118 and, if so, whether the discretion of the Committee should be exercised so as to permit the Petitioner to be heard. In exercising its discretion the Committee may consider whether the points made in the petition are covered by matters raised in a petition of a local authority for the area or in another petition which has not been challenged.
22. The Committee can also be expected to take into account during the hearing whether the petition calls into question the principle of the Bill as approved by the House of Lords at Second Reading, as in that case the petition would be beyond the Committee’s remit in any event.
Appendix 1: Extract from Standing Orders of the House of Lords relating to private business
117. Power [of committee] to allow associations, etc., to have petition considered[footnote 1]
(1) Where any society or association sufficiently representing any trade, business, or interest in a district to which any bill relates, petition against the bill, alleging that such trade, business, or interest will be injuriously affected by the provisions contained therein, it shall be competent for the select committee to which the bill is committed, if they think fit, to permit petitioners to have their petition considered by the committee on such allegations against the bill or any part thereof.
(2) Without prejudice to the generality of paragraph (1), where any society, association or other body, sufficiently representing amenity, educational, travel or recreational interests, petition against a bill, alleging that the interests they represent will be adversely affected to a material extent by the provisions contained in the bill, it shall be competent to the select committee, if they think fit, to permit petitioners to have their petition considered by the committee on such allegations against the bill or any part thereof.
117A. Right of Members of Parliament to have petitions considered[footnote 2]
Any Members of Parliament whose constituencies are directly affected by the works proposed by a bill shall be permitted to have their petition against the bill considered by the select committee.
118. General power [of committee] to allow local authorities or inhabitants to have petition considered[footnote 3]
It shall be competent for the select committee to which the bill is committed, if they think fit, to permit petitioners, being the local authority of any area the whole or any part of which is alleged in the petition to be injuriously affected by a bill or any provisions thereof, or being any of the inhabitants of any such area, to have their petition against the bill or any provisions thereof considered by the committee.