Graeme Creer 04 April 2016

There should be a law against it

There should be a law against it image

Part 6 of the Local Government and Public Involvement in Health Act 2007 included what was seen as the last part of the jigsaw of local authority empowerment. The Local Government Act 2000 gave local authorities general well-being powers, now largely overtaken by the Localism Act 2011 general power of competence. The Local Government Act 2003 gave them power to charge, and to trade through a company.

But none of these allows local authorities to regulate – to prevent people doing things, or control how they are done. So the 2007 Act enabled the Secretary of State to make regulations to make it easier for local authorities in England to make new byelaws. Now, over eight years later, the regulations have appeared.

Local authorities have been able to make byelaws covering a wonderful variety of topics since Victorian times: barbers and bathing machines, horse-drawn omnibuses and hurdy-gurdies, the list is practically endless. The procedure has always been much the same. The byelaws are drawn up, the council resolves to make them, the official seal is applied, public notice is given, they are placed on deposit for a month, and then they are submitted to the relevant government department for confirmation, usually DCLG. Then there are two possibilities. If the byelaws are more or less identical to the model byelaws published by the department, confirmation should just take a few months. If they are different, and especially if they are innovative, you will wait for years, possibly for ever.

The Byelaws (Alternative Procedure) (England) Regulations 2016 SI 2016/165 came into force on the 3 March. They prescribe certain classes of byelaws made under the Public Health Act 1875 (public walks and pleasure grounds), the Open Spaces Act 1906 (open spaces and burial grounds), the Public Health Acts Amendment Act 1907 (use of the sea-shore), the Public Health Act 1936 (public bathing), the Public Health Act 1961 (pleasure fairs and roller skating rinks, hairdressers and barbers), the Local Government Act 1972 (“good rule and government” – a wide-ranging concept – and preventing nuisances) and the Food Act 1984 (market places). These can variously be made by a district council (including a unitary), a London borough council, a county council or a parish council, but London borough councils cannot make byelaws under the Open Spaces Act 1906, county councils can only make byelaws under that Act and the 1875 Act, and parish councils can only make byelaws under those two Acts and the Food Act 1984.

There is a new, alternative procedure for making prescribed byelaws.

The authority that wishes to make the byelaw must draw up a “scheme”. This involves drafting the byelaw, consulting the people or bodies it thinks are potentially affected and assessing the “regulatory burden”. This means identifying the objective and considering whether there are other ways of achieving it, whom it will affect, whether it will increase or decrease the burden on them (expressed in money terms if possible) and how making the byelaw compares with not making it. The outcome must be expressed in a “statement”, which must give reasons why the authority thinks the added burden is “proportionate and necessary”. The authority must publish the statement, and bring it to the attention of those that it might affect.

Then the authority sends the draft byelaw and the statement to the secretary of state, plus a report. The report must state the power for making the byelaw and the area to which it will apply, and confirm that it is made under this new procedure.

It must also:

• State the purpose and need for the byelaw, including its objective, the extent (geographical and otherwise) of the objective, what the authority has done already to address it, the reasons for thinking that the byelaw will fulfil it and – pegging back the municipal nanny state – “confirmation that the proposed byelaw is not solely intended to protect persons from the consequences of their own actions.”
• State the reasons for thinking the byelaw is reasonable, including why any sanction is necessary and proportionate.
• Explain how far any other legislation already fulfils the purpose, if so why the byelaw is necessary, otherwise stating that the byelaw does not conflict with any other legislation.
• State whether any existing byelaw is to be revoked.
• State whether any of the model byelaws is to be used, how it is to be changed, and confirm the relevant guidance has been followed.
• Describe the consultation and the outcome, and summarise (with copy correspondence) any objection received and the authority’s response to it.

The secretary of state must respond within 30 days, giving permission, refusing permission, or saying “I’ll let you know as soon as practicable”.

If the secretary of state gives permission (“leave”), the authority must place the draft byelaw on deposit and publish a notice identifying the area where it applies, summarising it and inviting representations within a period of at least 28 days. The documents sent to the secretary of state must be made available to anyone who asks for them. Any representations received must be considered.

Within six months of the deadline for making representations, the authority must decide whether or not to make the byelaw. It can make “minor modifications” to it. The byelaw must then be sealed. Unless it says otherwise, it will come into force 30 days later. Within seven days of the byelaw coming into force, the council must place a copy on permanent deposit at its principal office, available for public inspection, put up signs, and notify the proper officer or equivalent of any other local authority in the affected area so that they will put a copy on public deposit.

There is a similar, but less onerous, procedure for a byelaw which just revokes an existing byelaw.

According to the explanatory notes to the 2007 Act the intention was to “simplify procedures” and remove the need for the secretary of state to confirm them. Baroness Hales told the House of Lords: “The changes will mean that once a local authority has consulted on, prepared and advertised draft by-laws locally, those by-laws can then be enacted without the authority having first to seek confirmation from the secretary of state. The vast majority of by-laws regulate matters such as low-level nuisances in local spaces, such as parks and beaches, and the use of market places. Those are very much local matters on which local authorities and their communities are best placed to decide. We take the view that a reference to central government in those circumstances is an unnecessary bureaucratic step…. While it is clear that most by-laws deal with the essentially local issues that I have spoken about, some deal with matters where it might be thought that some central scrutiny should be retained. For example, as the noble Lord said, certain transport matters might be subject to by-laws made by private operators such as port management organisations which have no direct accountability to local people in the way that local authorities do. Another example might be by-laws that apply to activities in designated countryside sites that could raise issues of a far wider national interest.”

Whether these intentions have been achieved is debatable. Some might think the Regulations just make the authority do all the spade work, instead of DCLG, and replace the word “confirmation” with the word “leave”.

In Austria you can be fined for kissing on a train. Supposedly in Oklahoma you can be fined or even jailed for “making ugly faces at a dog”, and is an offence for workers in Ferrara, Italy, to fall asleep in a cheese factory. Nottingham City Council have been trying for years to ban street drinking anywhere in the city. Liverpool City Council pondered banning McDonalds Happy Meals, to tackle childhood obesity, which would generate an interesting debate about whether preventing parents feeding junk food (we are not suggesting that Happy Meals are junk food, of course) to their offspring, or the offspring feeding them to themselves, would be “solely intended to protect persons from the consequences of their own actions”.

This is all splendid stuff for debate and headlines, but any local authority which hoped that this legislation would enable them to make new, interesting laws simply and easily and without government interference is likely to be disappointed.

But that is not the end of the story. Byelaws are old hat. Local authorities can now make Public Spaces Protection Orders under the Anti-social Behaviour, Crime and Policing Act 2014, banning or regulating activities in a defined area if they have a “detrimental effect on the quality of life” and are “persistent or continuing” and “unreasonable” and the restrictions are justified. They have to be renewed every three years, but there is no need for Government approval and they can only be challenged on legal grounds. They are proliferating. Reportedly, Kensington and Chelsea are contemplating banning noisy cars and Bassetlaw has prohibited unaccompanied children “gathering in groups of three or more”. Liberty complained that some councils are using them to target homeless people.

Perhaps DCLG’s sudden conversion to the benefits of appearing, at least, to localise byelaw-making is prompted more by the opportunity to pass the buck to the Home Office than administrative tidiness?

Graeme Creer is a consultant at national law firm Weightmans

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