Local authorities currently make byelaws to regulate hackney carriages under section 68 of the Town Police Clauses Act 1847, as incorporated within the Public Health Act 1875. New byelaws and amendments are through a protracted method that requires the formal consent of the secretary of state.

Enforcement is through the equally slow – and expensive – route of a criminal prosecution in the magistrates’ court.

The new proposals extend to general byelaws for the good order and government of the area, horse-drawn omnibuses as well as acupuncture services and businesses providing tattooing, semi-permanent skin-colouring, cosmetic piercing and electrolysis.

The intention behind the new regime is that councils and their communities will find byelaws easier to understand, more straightforward and less bureaucratic to make and easier to enforce in an effective way.


MAKING BYELAWS
There would be seven steps in the new byelaw-making process, including:

councils decide whether there is a need for the byelaw and that it has the power to do so without duplicating or contradicting existing legislation

the authority consults interested parties, including the relevant central government departments

a minimum 21-day public consultation must be undertaken, including advertising its intention in a public newspaper. The consultation must include the information gathered in the first-stage assessment

a requirement to advertise the new byelaw once it has been passed

a requirement for further consultation if more than minor modifications are made to the proposals following the public consultation

making and sealing the byelaws by the authority, either immediately or within 21 days of the order having been made

the byelaws must be advertised through public notices and on the authority’s website.

ENFORCEMENT
The proposals envisage that certain byelaws – although those relating to hackney carriages and electrolysis are not yet amongst them – could be enforced by way of fixed penalty notices.

Those proposals are ‘in line with current overarching Home Office policies on developing co-ordinated approaches to tackling nuisance behaviour’, says the paper, The Making and Enforcement of Byelaws.

The amount of fixed penalty depends on section 130 of the Local Government and Public Involvement in Health Act 2007 being implemented, which will insert a new section 237B into the Local Government Act 1972.

Authorities would then be able to specify different amounts for different byelaws, with a default penalty of £75 where no other amount is specified. The expected range of penalties are likely to be between £50 and £80 in line with other ‘nuisance offences’ such as those in the Clean Neighbourhoods and Environment Act 2005.

There could also be a range of penalties that apply, set down in regulations by the secretary of state that could be adjusted in line with penalties for similar offences.

Fixed penalty notices would not preclude authorities from using the magistrates’ court in particular circumstances, for example for repeat offenders.

CONSULTATION
The full consultation document and the opportunity to respond are on the Institute’s web-site consultation page, and comments are required from Institute Members by 1 November 2008.