What can councils use by-laws for?
- 12 August 2010
- From the section Magazine
David Cameron is backing an idea put forward by Greater Manchester councils to ban cheap booze using a by-law. But how ambitious can councils be when they are drawing up by-laws?
The opening hours of your local park. A ban on skateboarding along a promenade. Restrictions on fishing off a pier.
These are the sorts of regulations usually laid down via by-laws which, while no doubt important to those they affect, are unlikely to create too many headlines.
However, if councillors in Greater Manchester have their way, they could soon be having a say on the drinking habits of people living across their 10 authorities.
They are drawing up plans for a by-law making it illegal to sell alcohol for less than 50p per unit, meaning drinkers would pay at least £6 for a six-pack of lager, £4.50 for a standard bottle of wine and £5.50 for a two-litre bottle of cider.
Prime Minister David Cameron has said ministers would look "sympathetically" at the proposal. But questions remain about just how far you can go with a by-law.
In creating them, councils - and other bodies such as tunnel or transport authorities and national parks - usually adapt set "models" for their own use, covering amenities like seashores, public toilets, parks, amusement arcades and markets.
But with ministers repeatedly making a case for a transfer of powers away from central government, will they become more common?
Tony Child, head of local government for Beachcroft solicitors, says authorities in England cannot create by-laws on a whim but must be empowered to impose them through acts of parliament.
By-laws must not be inconsistent with national or European legislation and must be approved by a secretary of state, he says.
"Normally, the local authority will consult before they create the by-law. If any objections aren't withdrawn, there may be a judicial review or public inquiry which will then report to the relevant secretary of state," says Mr Child.
"Even if the secretary of state thinks it's lawful and reasonable, it can still be challenged by anyone who thinks it's unlawful - including people who are prosecuted under it."
One famous case involved the Greenham Common Women's Peace Camp which was set up in 1981 outside a US air base in Berkshire, in protest at the cruise missiles held within.
Several women were prosecuted for breaching Ministry of Defence by-laws by entering the site. However, law lords later ruled them illegal because people had a right to enter what was common land.
Local government expert David Kett says by-laws have "fallen out of favour" in recent years.
"They used to be far more prevalent," he says.
Mr Kett, who co-authored the book Essential Central Government, recalls moving to Portsmouth during the 1970s and parking his car under a street lamp, only to awake to find he had been issued with a ticket.
He had fallen foul of a local by-law ordering him to leave on a parking light. But, he says, the law was repealed when it was superseded by national legislation which ruled parking lights unnecessary.
This trend has continued, he notes, with a glut of central government legislation tying councils' hands.
Nonetheless, there has been room for some recent innovations - particularly in the realms of public health and anti-social behaviour.
In 2001, councils were given powers to create "controlled drinking zones" - allowing police to confiscate alcohol within a designated area. There are now more than 700 across England as authorities try to tackle drink-fuelled violence.
Liverpool, one of the first areas to try the zones, has retained a pioneering approach. It recently mooted by-laws to help tackle childhood obesity by banning fast food restaurants from giving away toys with meals and to impose automatic 18 certificates on any film featuring people smoking.
Though neither option was pursued, a council spokesman said the moves helped to provoke debate on the issues and led to improved dialogue.
These public health goals have been boosted by new powers given to councils to "promote or improve the economic, social, or environmental well-being of their area", according to Andy Walker from Our Life, the north-west campaign group behind the Greater Manchester plan.
However, while guidance says this encompasses the "improvement of the health of a council's residents", it also adds: "The government does not consider that the well-being power can be used to create by-laws for the regulation of conduct."
Even so, Mr Walker says laws dating to 1972 provide the bases for a by-law "for the good rule and government" of an area and for "the prevention and suppression of nuisances therein".
"It's our view that the extent of alcohol harm in Greater Manchester and the unlikelihood or primary legislation justifies this action," he says.
This "statutory nuisance" can be interpreted as anything that is prejudicial to health. Its earliest use was to stop people spitting in the street but it has has latterly been used for dog fouling.
Former council chief executive and partner in the Bevan Brittan law firm, Peter Keith-Lucas, says the law gives councils broad scope.
"Historically, they haven't been that innovative because central government ministers have been reluctant to promote them," he says.
"But if the government is genuine in saying there will be a more relaxed attitude to by-laws that would be a very welcome change."
However, he says councillors face several hurdles. In Manchester, for example, shopkeepers just inside the council's boundaries could challenge the by-law when they see it not applying to a competitor down the road.
Magistrates can decide a by-law is unreasonable, says Mr Keith-Lucas, and it must also satisfy European and human rights laws.
Prof Jon Tonge, head of politics at Liverpool University, says the European Commission has made clear that minimum pricing is allowed.
However, he adds that the European Courts of Justice have "muddied the waters" by ruling minimum pricing of tobacco illegal under competition law for countries such as Ireland and France.