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. [20]
The
person or organization affected 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. [21]
Four fundamental principles underlie and
define private bill procedure as set out in the Standing Orders and the
procedural
authorities. [22]
These
principles may be expressed in the following terms:
- A private bill should only be passed 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 in the pages that follow.
Principle 1. A Private Bill Should only be Passed 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. [23]
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 only presented after a private Member has filed with the Clerk of the
House a petition from the applicant for a private
bill. [24]
It is well
recognized in the Canadian House of Commons that Ministers may not sponsor
private bills as the Crown cannot petition
itself. [25]
The rules respecting public petitions
generally apply to petitions for private
bills [26]
(see Chapter 22, “Public Petitions”). 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. [27]
The petition
for a private bil sets out the reasons why special legislation is requested,
explaining what that legislation is intended to accomplish, and concludes with
an explicit request for such legislation to 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. [28]
The Member
may present the petition at any time during a sitting by filing it with the
Clerk of the
House. [29]
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. [30]
An official
appointed by the Clerk, acting as Examiner of 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. [31]
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 or 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 back to the House
accordingly. [32]
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 may or may not be a member of a provincial bar;
this person 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. [33]
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. [34]
The
parliamentary agent acts as advisor and counsel for the petitioners throughout
the various stages leading to the passage of the private bill and is responsible
for the payment of all charges and fees prescribed by the Standing Orders.
No person may act as a parliamentary agent
during any session without first paying a fee of
$25. [35]
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 willfully 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. [36]
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
passage.
At the beginning of each session, the Clerk
of the House publishes in the Canada
Gazette [37]
the
Standing Order respecting notices of applications for private bills. [38]
Thereafter, a note referring to the previous publication of this Standing Order
is published each week in the Canada
Gazette. [39]
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. [40]
The
published notice should set out the intent of the proposed legislation, indicate
during which session it is to be applied for, who the applicant is, and the
address of the applicant or the applicant’s parliamentary
agent. [41]
In certain
cases, notices must also be sent to certain officials and be published in local
newspapers. [42]
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. [43]
Since Members of Parliament may be asked to
speak on behalf of the promoter or opponent of a bill, certain notices regarding
the meetings of the committee on a private bill are posted by the Clerk of the
House throughout the parliamentary precinct and appended to the Journals
for a specified period of time before the committee
sits. [44]
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. [45]
Moreover,
no significant amendment to a private bill may be proposed in the House unless
one day’s notice has been
given. [46]
Finally, in addition to the notices,
certain records regarding each private bill are kept by the staff of the House,
and these records are open for public
inspection. [47]
Records are kept of 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 request for legislation, they
should be proven before Parliament agrees to enact the legislation being sought.
The legislative function of Parliament demands that each measure be given due
deliberation and orderly consideration. The judicial-like proceedings
surrounding private bill practice demands, in addition, that those concerned 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 has approved the
principle of the bill as is the case for a public bill. Rather, the House has
given 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 have been
proven. [48]
While a
preamble is optional in a public bill, it is essential in all private
bills. [49]
The
procedure thus requires that a private bill be sent to committee so that
opponents of the bill may be heard. Another reason why it is sent to committee
is 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. [50]
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 on 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. [51]
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. [52]
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. [53]
However,
before an opponent of a private bill may be heard in 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; it is
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. [54]
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. [55]
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 only be heard on the grounds stated in their petition. [56]
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. [57]
No petitioners will be heard against the
preamble unless in their petition they specifically ask to be heard against
it. [58]
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. [59]
Principle 4. The Financial Burden of Considering a Bill for the Benefit of Private Interest Should not be 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. [60]
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. [61]
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. [62]
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. [63]
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 a House
official [64]
and remitted to the promoter or parliamentary
agent who subsequently deposits the fees with the Clerk of the House. [65]
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. [66]
The
House has, on occasion, waived its fees for private bills. In the early years of
Confederation, fees were frequently waived, [67]
especially when no commercial interests were
affected. [68]
More recently, prior to the rule changes in
1994, [69]
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. [70]