The English Devolution White Paper proposes to allow local councils to bring through byelaws without first seeking consent from the Secretary of State. It also proposes to allow councils to punish byelaw infractions by on-the-spot fine.
The Manifesto Club response is as follows:
“There are important checks that currently prevent unreasonable or overly restrictive byelaws. The requirement that the byelaws be affirmed by central government means that the relevant government department can check that they are ‘proportionate and reasonable‘, as required by the legislation. Government also supplies template byelaws, which are time-tested and fit with these specifications.
A Home Office Circular from 1996 stated that if a council wanted to introduce a new byelaw it must show that the ‘nuisance’ was sufficiently serious to ‘merit criminal sanctions’. It also required that byelaws were ‘not partial or unequal in…application’, and that they did not ‘[interfere] with the rights of those whom they affect’.
The fact that byelaws must be prosecuted in a court means that the council must provide evidence of the infraction, and show that it represents a serious nuisance requiring criminal sanction.
The government’s measures would remove these important protections, and shift byelaws into the new mode of ‘anything goes’ lawmaking. Councils will be able to ban anything they please – with little or no recourse to anyone who objects – and they will be able to punish infringements with on-the-spot fines, which lack the scrutiny of a court.
In effect, byelaws will become another form of Public Spaces Protection Order, which also allows councils to ban activities in public spaces, and punish infringements with on-the-spot fines.
The government says that the byelaws system is ‘outdated for modern government’. It is not that the byelaws themselves are outdated: the current legislation requires that outdated or otherwise unnecessary byelaws be revoked. Instead, what is being removed is the element of legal process, which acts as a check on unreasonable restrictions and unreasonable punishments.
The trend of the past 15 years has been to progressively dismantle check and balances that prevent the unjust use of power, and to create myriad overlapping powers, each of which allows officials to create their own laws and punish them as they please. This is not ‘modern government’ so much as a recipe for arbitrariness and injustice.
Allowing byelaws to be punished by on-the-spot fine is particularly worrying, since it means that byelaws will be added to the growing portfolio of crimes punished by private enforcement companies, who are paid a portion of each fine issued. These companies seek to issue as many fines as possible, and will frequently twist laws to allow a penalty to be issued. This will mean penalties for innocuous actions such as climbing trees, feeding the birds, or playing music in public.
The English Devolution White Paper sounds harmless but it is very dangerous indeed, and should be resisted.”