Making and enforcing byelaws

A byelaw has been judicially defined as “an ordinance affecting the public or some portion of 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”. A byelaw thus supplements, but does not supplant, in its area or application the ordinary statute or common law.

A byelaw can only be made by a person or body with statutory powers to make the byelaw. As a general rule, private individuals, private organisations or associations have no such powers.

There are two procedures for local authorities to use in making byelaws.

Original procedure

The original procedure is set out in sections 236, 236B, 237 and 238 of the Local Government Act 1972. Under this procedure, a council may make byelaws to regulate:

• Public walks and pleasure grounds (Public Health Act 1875)
• Open spaces and burial grounds (Open Spaces Act 1906)
• Baths, swimming pools, bathing places or washhouses (Public Health Act 1936)
• Mortuaries and post-mortem rooms provided by the council (Public Health Act 1936)
• Hiring of pleasure boats in a park or pleasure ground provided by the council (Public Health Acts Amendment Act 1890)
• Markets provided by the council (Food Act 1984)

Byelaws are made by the council but do not take effect until confirmed by the Secretary of State. At least a month before applying for consent, the intention to do so must be advertised in the local press and copies of the proposed byelaws made available for public inspection without charge. The council must supply a copy of the proposed byelaws to any person, on payment of a fee not exceeding 10p for every 100 words.

Once the byelaws have been confirmed, they come into force on the day specified by the Secretary of State or, if none is specified, one month after confirmation. Copies must be available for inspection by any person without charge. The council must supply a copy of the byelaws on demand, on payment of no more than 20p per copy.

New procedure

Part 6 of the Local Government and Public Involvement in Health Act 2007 (sections 129-135) enacted alternative procedures for making and enforcing local authority byelaws. Part 6 was brought into force in 2010. The legislative process was completed (so far as it relates to the making of byelaws) in February 2016 with the enactment of the Byelaws (Alternative Procedure) (England) Regulations 2016.

Part 3 of the 2016 Regulations sets out the procedure for making byelaws within the following classes (prescribed by Regulation 3 and specified in Schedule 3):

• Regulation of public walks and pleasure grounds (Public Health Act 1875)
• Regulation of open spaces and burial grounds (Open Spaces Act 1906)
• Regulation of market places (Food Act 1984)
• Revocation of byelaws relating to the foregoing (section 236B, LGA 1972)

The council must follow Regulation 5 to carry out an assessment of any byelaw it proposes to make, in order to consider the regulatory burden that it might impose. The council must consult those likely to be affected by the byelaw. The assessment must be publicised, including on the council’s website.

Once the assessment has been carried out, the council must apply to the Secretary of State for approval. Regulation 6 sets out the information that has to be provided with the application. The Secretary of State must respond within 30 days by either:

• Giving leave for the byelaw to be made
• Acknowledging the application and taking more time to respond fully
• Refusing the application

Once the Secretary of State has given leave, the council publishes the proposed byelaw and considers any representations it receives. Not later than six months after publication, the council takes a final decision on whether or not to make the byelaw. The byelaw can then be made and its existence publicised.

The council must allow public inspection of the byelaw at all reasonable hours and may levy a reasonable charge if a person wants a copy. If a parish council makes the byelaw, it must send a copy to their district council. A district council and a London borough council must send a copy of any byelaw relating to land in the parish to the parish council or, where there is no council, to the chair of the parish meeting.

Part 4 of the 2016 Regulations sets out a less detailed procedure for revoking a byelaw comprised within a class specified in Schedule 3. This does not require prior approval by the Secretary of State.

In view of the somewhat complicated and time-consuming procedures laid down in both the 1972 Act and the 2016 Regulations, councils are unlikely to devote significant resources to make byelaws unless they are really necessary.

Model byelaws

Model byelaws have been issued by the government on pleasure grounds (model byelaw 2), amusement premises (model byelaw 3), pleasure fairs (model byelaw 4), promenades (model byelaw 5), seashore (model byelaw 6), good rule and government (model byelaw 8) and markets (model byelaw 10). Where it is desired to pass a byelaw which departs from a standard model, it is wise to consult the relevant government department beforehand.

Enactment and Enforcement

Schedule 1 of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 confirms that the power to make, amend, revoke, re-enact or enforce byelaws is a Council function and cannot be exercised by the Executive.

Offences against byelaws are usually prosecuted in the Magistrates’ Courts, where fines, damages and injunctions may be sought. A person contravening a byelaw is liable on summary conviction to a fine not exceeding the penalty prescribed by the byelaw or, if there is none, to a fine of £20. For a continuing offence, a fine may be prescribed by the byelaw but, if there is none, £5 per day is payable for every day on which the offence continues after conviction.

However, Part 6 of the Local Government and Housing Act 2007 provides for the enforcement of byelaws through fixed penalty notices (FPNs) as an alternative to the Magistrates Courts. This facility would bring the enforcement of byelaws onto the same footing as other low-level nuisance activities, and provide a quicker and more efficient alternative to formal legal proceedings.

But there’s a catch. FPNs can only be issued where the relevant legislation permits it. Section 237A(1) of the Local Government Act 1972 allows the Secretary of State to make regulations to permit FPNs to be issued as an alternative to prosecution in respect of certain classes of byelaws. To date, however, no such regulations have been made. Therefore, prosecution via the Magistrates' Court remains the only option for most authorities.

A specific exception applies to London borough councils (LBCs) under Part 4 of the London Local Authorities Act 2004. This allows LBCs to introduce an FPN regime to deal with offences against byelaws made under any enactment, including the Local Government Act 1972.

Section 17(1) of the 2004 Act requires LBCs to set the level of fixed penalty. This may take into account the reasonable and expected costs incurred in connection with the administration of the legislation under which the fixed penalty offence is created. The level of fixed penalties set must be published in such a way as the Secretary of State determines (s.17(5)).

The function of setting the level of fixed penalty is carried out by a joint committee established under s.101(5) of the Local Government Act 1972 (see s.17(6) of the 2004 Act). The relevant joint committee is the London Councils Transport and Environment Committee, which has authority on behalf of all LBCs to make recommendations on such issues to the Secretary of State. If an LBC wishes to implement an FPN regime for breaches of byelaws, this can only be achieved by the joint committee taking it forward.

Once the level of fixed penalty has been set, the Secretary of State must be notified. The penalty will not come into force until one month after notification has been given, or such shorter period as the Secretary of State may allow. If the Secretary of State considers that some or all of the fixed penalty amounts are excessive, they may object to the joint committee or make regulations prescribing the amounts to be set.

Epilogue

"Bylaw" is the correct term and the spelling most often found when referring to the rules of an organization, but "byelaw" has been used throughout this note as it is used in most official contexts, especially legislation. The origin of the word is from the English bilawe, and before that the Old Norse bȳlǫg (where bȳ = town and lǫg = law). The earliest use of the term, which originates from the Viking Danelaw, was in towns such as in Whitby, Grimsby and Derby.

The Government published a white paper on English devolution, Power and partnership: Foundations for growth, in December 2024. One of its proposals was to remove “as far as possible” the current requirement to confirm byelaws and to introduce FPNs. The White Paper said:

Given the complexity of legislation that has built up over many decades and the wide policy scope under consideration, we will accomplish this through a review of such cases. As part of this review, we will also determine whether councils should be able to enforce byelaws via Fixed Penalty Notices rather than through the courts to improve their effectiveness. Strategic Authorities should be able to make byelaws on matters relevant to their functions and responsibilities. We will consult the sector to agree the best approach on how we might accomplish this.

We await further developments.

Geoff Wild is a Legal and Governance Consultant.