Byelaws in one form or other have been with us for a while now – at least since the 13th century. For the word is a variant of ‘byrlaw’ (byr being an old Norse word for village, town or farm). And byrlaw referred to an old Kentish custom whereby local disputes were settled outside law courts.
But more recently, byelaws have been regulated by statute, and in particular section 235 of the Local Government Act 1972. Section 235(1) enables district and London borough councils to make byelaws for the good rule and government of the whole or any part of the council area and for the prevention and suppression of nuisances. However, section 235 does not permit byelaws for any purpose in any area if statutory provision for this already exists or is in prospect.
As from 3 March 2016 new making and approval procedures for specified byelaws were introduced under section 236A of the 1972 act and the Byelaws (Alternative Procedure) (England) Regulations 2016 (SI 2016 No 165) (the regulations). As the letter of 1 March 2016 (the letter) from the Department for Communities and Local Government (DCLG) to chief executives of all principal local authorities in England indicated, the ‘regulations introduce new arrangements for the making and revoking of those byelaws for which the… DCLG has policy responsibility’. These are byelaws that ‘principally relate to the peaceful enjoyment of public spaces such as parks, and the prevention of nuisance behaviour in towns and cities’. Schedule 1 to the regulations has a complete list including relevant enactments and byelaw making authority.
Regulations 5 and 6 respectively contain detailed provision for the assessment and consultation processes to be conducted by authorities proposing to make a scheme for the introduction of relevant byelaws and the submission of completed schemes to the secretary of state for approval. As the letter indicated: ‘Under the new arrangements where a council is proposing to make a new byelaw (other than a byelaw simply revoking a previous byelaw), it must first undertake its own deregulatory assessment of the impact that byelaw might have on all those potentially affected by it and submit that assessment, together with certain supporting material, to the secretary of state. The secretary of state must then respond within 30 days giving leave for the council to proceed to make the byelaw, refusing leave or responding with a holding reply to be followed by’ a substantive response as soon as practicable.
Easier said than done. For the prescribed processes will require considerable work. So the assessment process requires (among other things): evaluation of whether the regulatory burden to be imposed by the proposed new measure is proportionate, whether its objective could be satisfactorily secured by other means, how the measure will compare with taking no action at all and consultation with those potentially affected by the proposals. ‘Regulatory burden’ (per regulation 2) includes financial cost; administrative inconvenience; obstacle to efficiency, productivity or profitability; and sanctions, criminal or otherwise, which affect the conduct of any lawful activity.
The submission to the secretary of state for approval must contain the matters specified in regulation 6. This includes the draft byelaw itself, the purpose of and need for it, and reasons for considering that the byelaw is reasonable in its proposed application. This must deal with why any sanction specified in the proposed byelaw is necessary and proportionate and ‘whether the relevant authority intends to make use of any model byelaw and if so what (if any) adjustments to the model byelaw are proposed and confirmation that the relevant authority has followed the guidance accompanying the model byelaw’. As the letter indicates, assuming ‘leave to proceed is given it is for the council to complete the byelaw-making process without any further involvement by the secretary of state’. This involves ‘the council advertising and consulting on the byelaw and then, having regard to any representations the authority receives, deciding [within six months] whether to make the byelaw concerned’. As local authority lawyers will appreciate, compliance with the requirements of public law is also integral to the whole project.
In September 2018 DCLG issued updated model byelaws and guidance for local authorities about creating and revoking byelaws. This can be found on the gov.uk website. The relevant page ‘brings together all documents relating to model byelaws’ including set 8 for good rule and government. The accompanying guidance for this set points out that many activities regulated by section 235 byelaws are not inherently dangerous or a nuisance, but may be if conducted in certain areas or ‘in a particularly hazardous or annoying manner’. So there is no power, for instance, to make byelaws banning skateboarding or riding in the area. But ‘it may be appropriate to ban these activities in certain places where it causes a particular danger or nuisance, or to regulate the manner in which those activities can be conducted’. Byelaws should therefore be adopted only if required to address an existing problem.
In evaluating this, authorities will clearly need to have careful regard to the public sector equality duty in the Equality Act 2010 and consider whether powers in the Anti-Social Behaviour, Crime and Policing Act 2014 including Public Space Protection Orders may be more appropriate to address locally experienced problems.
As to how authorities should use the model byelaws for good rule and government, DCLG advises downloading and editing as appropriate. However, the models are important. For the more an authority’s wording departs from that of the model the more complex the approval process is likely to be, with the burden of proof being on the authority to show good cause for any wording changes. So the old adage applies to the model – if it ain’t broke, don’t fix it.
While there is no current requirement for authorities to update their byelaws, if and when this becomes necessary the models, guidance and regulations will be essential components in the legal toolbox.
Nicholas Dobson is a consultant at Freeths