New powers to enact bye-laws without Whitehall permission could be a boon to local authorities’ ‘place-shaping’ role, but require careful consideration, according to George Jones and John Stewart

The provisions of the Local Government and Public Involvement in Health Bill on bye-laws are potentially one of the most important parts of the legislation.
The Bill enables the secretary of state to give effect by regulations to the proposals, contained in the 2006 consultation paper, empowering local authorities to enact bye-laws without the necessity of confirmation by central government.
These provisions on bye-laws add to the powers of wellbeing contained in the Local Government Act 2000. That Act gave local authorities powers to do anything likely to promote and improve the economic, social and environmental wellbeing of their localities.
But their power to regulate was restricted because bye-laws still required approval by central government. This limitation meant the powers of wellbeing fell short of the power of general competence which gives authorities regulatory powers. Because of the proposed provisions on bye-laws, together with the powers of wellbeing and to charge for discretionary services, including those provided under the powers of wellbeing, councils will have the equivalent of the power of general competence. Councils are still subject to ultra vires, but the vires or powers are now so wide that local authorities are, in practice, in much the same legal position as authorities elsewhere in Europe.
All councils have to act within the law. Local authorities will have the power to draw up bye-laws only where they have been given such powers by legislation.
Bye-laws, together with the power of wellbeing, are a formidable instrument for implementing Sir Michael Lyons’ concept of ‘place-shaping’. The proposed provisions enhance the capacity of local authorities to meet the needs of their areas and the challenges of a complex and changing society.
We welcome the Bill’s proposals, but there must be an element of caution until we see the regulations, because the Bill indicates little about the intentions, even though they have been spelt out in the Notes of guidance accompanying the Bill.
The regulations could be so tightly drawn that the freedom given could prove limited in practice. Model bye-laws could constrain, and guidance curb, innovation. We await the regulations. Uncertainty surrounds the courts’ response to legal challenges to bye-laws. Bye-laws are made under powers granted by legislation.
The courts will have to be satisfied those powers exist and that the bye-laws do not conflict with legislation. And they can strike down any bye-law they regard as unreasonable or uncertain.
There is a danger that, once bye-laws are made without confirmation, the courts will assume a greater supervisory role applying narrow interpretations. We wait and see.
They must also consider their procedures for enacting bye-laws. The regulations are likely to require local authorities to consult on the proposed bye-laws. Local authorities need procedures which ensure their legislation receives the same examination as parliament should undertake of national legislation.
One approach to that role would be to have a first-reading debate on any proposed bye-law, after which it would be referred to a special committee for detailed examination and, if necessary, amendment, and could involve public hearings to provide a focus for the processes of consultation.
There would be a report stage and a second reading, leading to the enactment of the bye-law.
Central government, the courts and local authorities will determine whether the potential of the provisions governing bye-laws is realised, thus supporting the role of local authorities in the government of local communities.
George Jones is emeritus professor of government at the LSE, and John Stewart is emeritus professor of local government at the University of Birmingham