Kent on Film

The Kent County Council (Filming on Highways) Act 2010 was given Royal Assent on 27 July 2010. Sarah Bonser explains the new powers available to the council, the benefits that they bring to the County, and the Private Bill process.

What is a Private Act of Parliament?

A Private Act is promoted by an individual or organisation outside of the Houses of Parliament, typically a local authority, to obtain powers or benefits which are either in excess of, or in conflict with, the general law. These powers will only apply to the body that promotes the Private Bill. A Private Bill should not be confused with a Private Member’s Bill which leads to a change in the general law.

At the time of writing there were only eight Private Bills before Parliament. Historically, however, Private Bills were more common and were used for purposes such as the construction of railways and harbours, to change the terms by which markets, trusts and charities operate and to allow banks and building societies to merge. Much of the need for such private legislation has been removed due to changes in general law. For example, major construction projects are legislated for by an Order made under the Transport and Works Act 1992.

The Private Bills currently before Parliament focus on the regulation of activities in a specific local authority’s area. For instance, the Canterbury City Council Bill, Reading Borough Council Bill and Nottingham City Council Bill all relate to the regulation of street trading.

Private legislation is a remedy of last resort. Before powers can be sought all other avenues must be exhausted.

Kent’s New Powers

Although filming on the highway has taken place for many years there has been considerable uncertainty over the legality of road closures for filming. The special events provisions in Road Traffic Regulation Act 1984 (“the 1984 Act”) allow for road closures for any “sporting event, social event or entertainment”. Entertainment is not defined in the 1984 Act and although it may be interpreted widely it is the product of filming, rather than filming itself, which is the entertainment.

The Act removes this uncertainty by modifying the provisions of the 1984 Act and enables the Council, by order or by notice, to prohibit or restrict traffic on roads for the purpose of enabling the making of a film to take place. Orders can remain in force for a maximum duration of seven days whilst notices can last for up to 24 hours. Up to six film orders can be made on any stretch of road in any one year.

KCC is the only council outside London to have these powers, which places it in a unique position to attract filming into the County. This will be of direct financial benefit to the businesses in the areas in which filming takes place, as film companies require services such as food and accommodation whilst on location.

The Act also enables KCC to grant permission to any person making a film to temporarily place objects on the highway that are required for the purposes of making a film. This will allow more filming to take place without closing the road and without the risk of the film maker committing the offence of obstructing the highway under the Highway Act 1980. This power is unique to KCC.

The Private Bill Procedure

The Private Bill procedure can be split broadly into two stages: pre- and post‑deposit.

Pre-Deposit

Private Bills can only be introduced on one day of the year – 27 November. It is therefore essential to have a clear time table for the pre-deposit steps to ensure that this deadline is met. KCC began planning for the Kent County Council Filming on Highways Bill (“the Bill”) approximately nine months before it was deposited due to the extensive procedural requirements that must be satisfied before the Bill can be presented.

Firstly, it is necessary to engage the services of a Parliamentary Agent to promote a Private Bill. There are only a handful of people who have been appointed by Parliament that have satisfied the Speaker of their knowledge of the Parliamentary standing orders and process relating to private business. These people are able to act as “Role A” Parliamentary Agents. KCC appointed Bircham Dyson Bell.

After the need for particular powers has been identified, an initial draft of the legislation is prepared. If the powers have already been sought by another body that Bill or Act can be used as a precedent. The Parliamentary Agent will be able to assist with the preparation of the initial draft. Once this has been prepared it is good practice to circulate the Bill internally within the organisation to raise awareness of the legislation as well as ensuring that there is full support for the measures to be introduced. After the internal consultation has been carried out it may be necessary to revise the draft Bill as a result of comments made.

The next step is the external consultation. KCC published details of the consultation on its website and advertised the Bill in local newspapers. Mail shots were also sent to those bodies likely to be interested in or affected by the proposed legislation for example groups such as the AA and the RAC and the Rambler’s Association, as well as the emergency services and district councils. Whilst external consultation on the terms of the draft Bill is not a formal requirement of the Parliamentary process, it is an essential tool in flushing out any potential objectors and provides an early opportunity to negotiate with, and allay the concerns of, those who may otherwise formally petition against the Bill once it has been deposited.

When the external consultation closes, responses should be considered and terms of the Bill finalised.

Before a Bill can be deposited by a local authority, it is necessary for the Council to pass a resolution approving the promotion of the Bill. There are strict notice requirements to publicise the meeting in which the promotion of the Bill will be considered and the resolution must be carried by an absolute majority of all of the members of the Council – not just those present at the meeting. A second resolution is required after the Bill has been deposited to confirm the first resolution. This must also be carried by a majority of members.

The report to Council to seek authority will need to clearly explain the need for the legislation as well as setting out details of the consultation, the procedure to be followed once the Bill is deposited and the Bill itself. In-house lawyers can add real value to the report writing process, ensuring that the statutory requirements are met and setting out the legal need for the powers that are to be sought.

When all of the pre-deposit steps have been completed it is time to deposit the Bill.

In Parliament

Private Bills must be deposited on 27 November each year. They are introduced following a petition by the promoting authority. There are requirements to deposit copies of the Bill with various interested bodies and to advertise in both the London Gazette and local newspapers before 11 December. The Parliamentary Agent will have to appear before the Examiners to confirm compliance with the standing orders on or about 18 December. Essentially, this comes down to whether the notice and other preliminary requirements have been met. This underlines the need to seek legal advice at the very beginning of the process.

The House authorities (the Chairman of Ways and Means in the Commons and the Lord Chairman of Committees in the Lords) will decide which House the Bill will start in. Generally, local authority promoted Bills will start in the House of Lords with only those that appear politically contentious starting in the Commons. The Bill started in the House of Lords. The stages to be followed are the same for public Bills and have to be followed in both Houses no matter which House the Bill starts in. Fees of £4,000 are payable on the first and third readings in each House – a total of £16,000.

The First Reading is a formality and is deemed to have taken place when the Bill is laid on the table in the relevant House. This will be followed by a petitioning period. This is a two week period in which those who are “directly and specially” affected by the Bill i.e. they are affected in a different way to the public at large. Community groups such as town and parish councils sometimes oppose where a community interest is affected. There was one potential petition against the Bill but this was avoided by giving a “First House Undertaking” in the House of Lords and by negotiating with the potential petitioner at the House of Commons Stage.

If petitions are received the Bill will proceed to an Opposed Bill Committee after the Second Reading.

The Bill is then put down for a second reading. If there are objections at this stage, they will come from within the House i.e. from either the Lords or MPs themselves. In the House of Commons a Member may table a “blocking motion”. This has the effect of halting the procedure of the Bill either until the Bill is debated or the blocking motion is withdrawn. This can lead to long delays in the progress of the Bill. The Bill passed through Second Reading with no objections in either House.

As there had been no petitions against the Bill, it was referred to an Unopposed Bill Committee. Unopposed Bill Committees are generally brief and focus mainly on proving the need for the powers to be acquired. Had there been petitions against the Bill it would have been referred to an Opposed Bill Committee. Proceedings in an Opposed Bill Committee are more protracted and will resemble judicial proceedings in which both the promoter of and petitioner against a Bill will put forward witnesses to make out their case. The promoter will be represented by Counsel and it is likely that a petitioner would also be represented although they may appear in person.

Amendments may be required as a result of the Committee hearing. Amendments required by the second House will be referred back to the first House for approval.

When the Committee processes have been completed the Bill will be set down for a Third Reading. In the first House this is immediately followed by the First Reading in the second House. After the Third Reading in the second House the Bill goes on to receive Royal Assent. For the Bill this was less than one year from deposit and approximately eighteen months from the initial decision to promote the Bill.

Although the passage of the Bill was not delayed by objections and petitions it was interrupted by the general election and a “revival motion” was required to formally reintroduce the Bill to Parliament. This happened after the petitioning stage in the second House and the Bill had to be taken through the stages it has already been through, although thankfully without any additional petitioning period.

Conclusions

The Act removes the uncertainty relating to filming on highways and places Kent in a unique position to attract filming, and the financial benefits that brings, into the County. Although the procedure for promoting a Private Bill such as the one described above may appear daunting at first, the keys to success are proper preparation in order to ensure that the relevant time scales are met and consultation at an early stage to prevent objections and petitions once the Bill has been deposited.

Sarah Bonser is a solicitor in Kent County Council’s legal department. She can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it..

The full text of the Act can be viewed here.