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The CLG may be keen to free up councils, offering control over byelaws, but are the other departments so keen, ask George Jones and John Stewart. The Government's consultation paper The making and enforcement of byelaws (August 2008) was a major step forward in the devolution of powers to local authorities. They should have welcomed it. Once, it seemed only the CLG would make use of the changes made possible by the Local Government and Public Involvement in Health Act 2007, to remove the need for ministerial approval of byelaws proposed by local authorities. The consultation paper proposed the removal of this requirement for most byelaws, with only a few exceptions. It represented a major step forward in central-local relations. While the Government has done so little to fulfil its promise to release local authorities from excessive central control, the consultation paper represented a praiseworthy development. The consultation closed in November last year, and yet there has been no response by the Government to the views received. The CLG has now indicated in strong and prosperous communities – the Local Government White Paper Final implementation plan (March 2009) – that the new powers will be introduced in the summer by secondary legislation. We regret the delay. It reflects a lack of priority given to this issue. We wonder if the Local Government Association realised the importance of the issue and pressed hard for early action. It is important because of its significance for the role of local government. In future, local authorities will be able to make byelaws in their own right, without requiring ministerial approval. In effect, local authorities will be given a power to legislate. As Lord Russell laid down in Kruse v Johnson (1898), in what is regarded as a definitive judgement: ‘A byelaw of the class we are here considering I take to be an ordinance affecting the public.... imposed by some authority clothed with statutory powers, ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance... it involves this consequence, that, if validly made, it has the force of law within the sphere of its legitimate operation'. In making byelaws, the local authority is a local legislature, carrying out what Redlich and Hurst [1903] described as ‘self-legislation' in their classic Local Government in England, from which the quotations from Lord Russell's judgement are taken. The role of a local legislature defining the acceptable and the unacceptable is fitting for a local authority whose role in community leadership and place-shaping has been recognised by the Government. Most of the powers to make byelaws are limited in scope. They are dependent on statutes setting out the extent of the powers. The consultation paper listed 21 sets of powers, and the scope of most of them is narrowly defined. The widest power is contained in Section 235 of the Local Government Act 1972, which gives powers to make byelaws ‘for the good rule and government of the whole or any part of the district or borough, as the case may be, and for the prevention and suppression of nuisances therein'. This clause repeats provisions dating back to the 1835 Municipal Corporations Act, recognising, long before the Government's modernisation programme, the role of local government as community leader or place-shaper. This same role was described by the Bains report (1972), before those terms were fashionable: ‘Local government is not, in our view, limited to the narrow provision of a series of separate services to the local community, though we do not intend in any way to suggest that these services are not important. ‘It has, within its purview, the overall economic, physical and cultural wellbeing of that community, and for that reason, its decisions impinge with increasing frequency upon the individual lives of its citizens' (paragraph 2.10). Twenty-eight years later, the Local Government Act 2000 recognised those wider responsibilities in the powers of wellbeing, even though it used different adjectives to describe wellbeing. This conception of the wide role of local government gives significance to their powers to make byelaws for good government. The new freedom given to local authorities to make byelaws should be used to show, through innovations, the potential of local government. Otherwise, in a few years, the equivalent of [minister] John Healey will be making speeches about how these powers were not being used, in the same way as he has made speeches about how few authorities have used the powers of wellbeing or the new trading powers. It is strange, despite these speeches, that the CLG has made no attempt to uncover the explanation for this apparent failure to use powers local authorities had long sought. We suggest two reasons. As much of the evidence to the select committee inquiry into the balance of power in central-local relations has shown, there is uncertainty about the legal position on trading, and the requirement that those powers be exercised through companies. There is uncertainty too about the scope of the powers of wellbeing, raised by the recent judgement in Regina (Risk Management Partners Ltd) v Brent LBC and Others, that held the financial wellbeing of the local authority was not the same as the economic, social and environmental wellbeing of the area. The powers of wellbeing could, therefore, not be construed as authorising a local authority to do whatever it considered likely to promote its own financial wellbeing. Yet its own financial wellbeing contributes to the wellbeing of the area. This judgement, if upheld on appeal, suggests the powers of wellbeing are more limited than was hoped, and far from being a power of general competence creates uncertainty about their scope. Other reasons for the limited use of the powers highlighted by Mr Healey could affect the use of the freedoms given over byelaws. So much time of senior councillors and officers is taken up with responding to government initiatives, dealing with inspections and assessments before, while and after they take place, manoeuvring through the remaining plethora of specific grants, organising partnerships, negotiating over local area agreements and reporting on performance to central government departments, that the time for innovation is limited. The key issue about the likely use of the powers to make byelaws is the attitude of the courts. They may consider they have to play an active role, once the ministerial check on byelaws has been removed. The courts have a history of striking down byelaws on the grounds of unreasonableness or uncertainty in the wording, as well as on the grounds that the byelaw was beyond the scope of, or conflicted with statutory provisions. The courts should have regard to the judgement of Lord Russell on the question of unreasonableness: ‘A byelaw is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. 'Surely, it is not too much to say that in matters which directly and mainly concern the people of the country, who have the right to choose those whom they think are best fitted to represent them in their local government bodies, such representatives may be trusted to understand their requirements better than judges', a view which should apply to inspectors as well as judges. The threat of control by the courts means local authorities should adopt procedures which ensure the provisions of proposed byelaws are given careful consideration by the elected councillors, a requirement necessary when making a law binding on people, and for which penalties may be imposed for breach of its terms. The ensuing byelaws constitute local legislation and should be determined by the full council, and not by the executive that could propose them. The procedures adopted by the council should reflect the importance of its legislative function. In the US, special procedures cover local government legislation, a term which includes the equivalent of byelaws as well as some aspects of policy. Legislation is discussed in full council at a first reading, after which it is examined in detail by a committee and/or a public meeting, before being considered by full council at a second reading, when it can be approved with or without amendment. A similar procedure could be adopted for byelaws here, incorporating the requirements for publicity and consultation laid down in the relevant statutes and regulations. These regulations should not be over-prescriptive, but allow councils to adopt the procedures suggested or other procedures that meet the requirements of full consultation and careful deliberation by the council itself. Such procedures would reflect the importance of local legislation, as well as providing a safeguard against challenge in the courts, by showing the care the council had given to the issue. It would also be a step forward in reforming procedures at council meetings and enhancing their importance. While the CLG has been taking the lead in relaxing central controls over local government byelaws, its attitude has not permeated other departments. It looks possible its early hopes that others would follow suit will not materialise when the secondary legislation appears later in the year. The LGA should campaign strongly to ensure that other departments are in line with the CLG. For it to do so requires local authorities to recognise the significance of their new powers over byelaws for the future of local government, to appreciate what is now at stake, and get the LGA to assert itself. George Jones is emeritus professor of government at the LSE, and John Stewart is emeritus professor at INLOGOV

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WHITEHALL

Getting by with byelaws

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