334.A local authority byelaw is a law which has been made by a local authority under a power conferred by statute. Currently local authority byelaws must be confirmed by the Secretary of State. Offences against local authority byelaws attract a penalty fine, which is enforced through the Magistrates’ Courts.
335.These sections give effect to the Government’s proposals to simplify procedures for making and enforcing local authority byelaws. Proposals for changes to current procedures were set out in the Government’s discussion paper Local Authority Byelaws: Procedures for making, confirming and enforcing byelaws, issued in April 2006. Decisions on action to be taken were then announced in the Local Government White Paper.
336.The Government initially intends to use the powers in these sections to introduce new procedures for local authorities to make byelaws and enforce them through fixed penalty notices only in relation to local authority byelaws which are confirmed by the Secretary of State for Communities and Local Government. These byelaws regulate matters such as low-level nuisance in local spaces (for example parks and beaches, the use of market places and the cleanliness of barbers’ and hairdressers’ premises). The powers could be used in relation to byelaws in other areas in the future.
337.These sections enable the Secretary of State to make regulations establishing a new procedure for local authorities to follow in making byelaws. The intention is that this power will be used so that once local authorities have consulted on, prepared and advertised draft byelaws locally, they can be enacted without confirmation by the Secretary of State. The Secretary of State will have the power to make regulations dealing in particular with consultation on, and the advertisement of, byelaws locally and the power to issue guidance in relation to the new procedures.
338.The sections also provide for the enforcement of byelaws through fixed penalty notices, as an alternative to enforcement through Magistrates Courts. This will bring the enforcement of byelaws on to the same footing as the enforcement of other low-level nuisance activities, and will facilitate a more coordinated approach to the enforcement of such matters.
Section 129: Alternative procedure for byelaws
339.This section inserts a new section 236A into the Local Government Act 1972. This will give the Secretary of State, in relation to England, the power to make regulations prescribing classes of byelaws which can be made using the procedure described in the regulations rather than the procedure in section 236 of that Act. The intention is that regulations will prescribe a procedure which does not require the byelaw to be confirmed by the Secretary of State. It will be possible for the classes of byelaw to which the alternative procedures will apply to be described in different ways – by reference to one or more of the enabling power for the byelaws, their subject matter, and the authority empowered to make or confirm the byelaws. This approach has been taken to ensure that regulations can describe clearly which byelaws will be subject to the alternative procedures, and, therefore, ensure certainty as to which local authority byelaws will continue to be subject to the procedure in section 236 of the Local Government Act 1972.
340.In prescribing the alternative procedures to be followed, the section empowers the Secretary of State to include in regulations provision on the consultation procedures which local authorities should follow before a byelaw is made, and on local publicity after a new byelaw has been made.
Section 130: Fixed penalties for breach of byelaws
341.This section inserts new sections 237A to 237C, and new section 237F, into the Local Government Act 1972.
342.New section 237A empowers the Secretary of State to make regulations prescribing classes of byelaws which may be enforced by means of fixed penalty notices. Where a byelaw is within such a class, subsection (3) provides for an authorised officer of an authority to issue a fixed penalty notice offering a person the opportunity of discharging liability for conviction for a byelaw offence by the payment of the amount specified in the notice. Subsection (4) provides that, following receipt of a fixed penalty notice, the recipient has fourteen days in which to pay the specified fine, and thus avoid attending the Magistrates’ Court in respect of the offence. Subsection (6) provides that the fixed penalty notice must give sufficient information to the recipient so that the nature of the offence is clear. Subsection (12) makes provision about which persons are authorised to issue fixed penalties. “Authorised officers” will be restricted to those authorised in writing by the authority to carry out the function. This may be a direct employee of the authority, or a person, or an employee of a person, with whom the local authority has a contract for the enforcement of byelaws.
343.New section 237B provides for the level of fixed penalties for breach of byelaws. The section confers on the Secretary of State the power to make regulations specifying a range within which the amount of fixed penalty must fall. Where a range has been specified, local authorities may choose to set an amount within that range. Where no range has been set, local authorities will have freedom to set the penalty. Where the local authority does not specify a penalty for breach of a byelaw, the section provides for a default amount of £75. The section empowers the Secretary of State to make an order to change the default amount as necessary, so that the level remains in line with similar low-level offences.
344.New section 237C gives an authorised officer who proposes to issue a fixed penalty notice for breach of a byelaw the power to require the person to whom he is giving the notice to give their name and address. A person who fails to give their name and address or gives a false name and address will commit an offence.
345.New section 237F makes supplementary provision about regulations and orders under section 237A and 237B.
Section 131: Use of fixed penalty receipts
346.This section requires local authorities, when considering how to use their fixed penalty receipts, to have regard to the desirability of using the money in combating nuisances governed by byelaws for which fixed penalty notices may be issued. This means that local authorities would be required to consider whether fixed penalty receipts should be used generally in combating such nuisances. It would not be necessary for receipts to be used only towards combating the nuisance the relevant byelaw is concerned with.
Section 132: Guidance
347.This section gives the Secretary of State the power to issue guidance in relation to the new procedures for making byelaws, the use of fixed penalties to enforce byelaws and on related matters. This will include guidance on consulting on and publicising new byelaws and good practice in relation to issuing fixed penalty notices.
Section 133: Community support officers etc
348.This section amends the Police Reform Act 2002 so that if local authorities and the chief police officer for the area agree, community support officers and other “accredited persons” under that Act may issue fixed penalty notices for breach of local authority byelaws. Before a community support officer or accredited person will be able to do this, the chief police officer will have to designate them as having that function and the byelaw to which the fixed penalty notice relates will have to appear on a list agreed between the chief police officer and the local authority.
Section 134: Revocation of byelaws
349.This section gives local authorities, the Greater London Authority, Transport for London and metropolitan county passenger transport authorities the power to make a byelaw revoking a byelaw it has previously made where, for some reason, there is no other power to do so. This will allow local authorities to “tidy up” unnecessary and obsolete provisions.
350.This section also confers a power on the Secretary of State and on Welsh Ministers to make an order revoking a byelaw where it appears to have become obsolete or unnecessary. The intention is that this power will only be used where the power to revoke the byelaw, or the identity of the authority which should otherwise revoke the byelaw, is unclear.
Section 135: Further amendments relating to byelaws
351.This section gives effect to Schedule 6.