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[Delegated legislation - by-laws]
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By-laws (Byelaws - bye-laws - bylaws all acceptable spellings)

By-laws are locally made and have local effect.

Made by local authorities, public bodies (for example Railway companies (and other transport authorities, Universities, water (and other utility) authorities, and the National Trust)

 

They are made in response to local problems for example parking, control of activities for example on beaches, drinking in parks by tramps.

Passing of by-laws

The procedure for passing local authority by-laws is started by the local authority and then confirmed by the Office of the Deputy Prime Minister, there is an outline here.

 

Water Authorities may make by-laws

For example by-laws for preventing waste, misuse or contamination.

Ports and harbour authorities may have general powers to make by-laws.

Examples of by-laws

Local Authorities and National Trust

The National Trust regulates the use of its land (which is private property just like Railways and your garden) by its own by-laws, for example "No unauthorised person shall ride a horse [or bring a dog] on any part of Trust Property where horse riding is prohibited..." but the Trust creates designated areas where horses and dogs are allowed.

 

The nudist beach at Studland exists as part of the National Trusts' power to regulate use of its land under its own by-laws of 1965 The Trust allows this activity between "authorised notices exhibited on Trust Property". 

Their authority comes from the National Trust Act 1971 section 24 which allows them to "...make byelaws for the regulation and protection of and for the prevention and suppression of nuisances.. "

 

Bournemouth Borough Council by-laws regulate the use of beaches, notably the control of dogs and their "mess".

The case of Peter Boddington

Picture from FOREST

Smoking a cigarette in a railway carriage where smoking is prohibited is contrary to by-law 20 of the British Railways Board's Byelaws 1965. The by-law was made under section 67 of the Transport Act 1962, as amended.

 

Peter Boddington was fined 10 for breaching this by-law and appealed.  The case eventually reached the House of Lords, where his conviction was upheld.  Their Lordships examined the powers to make by-laws by statutory bodies such as Railway authorities.

The basis of his appeal was that the by-law or administrative decision was "bad on its face."

By-laws Control

Judicial Review In addition to Home Office controls the court can exercise the same jurisdiction over by-laws as it does over any other type of delegated legislation. (see judicial review).

 

The Home Office can annul by-laws

 

Most by-laws are based on Home Office guidelines

Not subject to direct parliamentary control, but of no effect unless approved by the relevant minister.

 

By-laws subject to Judicial Review

Unlawful parts of orders may be severed.

Staden v Tarjanyi (1980)

By-law quashed for uncertainty.

 

The by-law made it unlawful to fly a glider "in the pleasure ground".

 

Held: uncertain because it must mean in or over, but for it to mean this there must be "some lower level below which the glider must not fly."

Kruse v Johnson (1898)

The meaning of unreasonableness was laid down.

Per Lord Russell:

"[that by-laws should be] "benevolently" construed. A by-law would be unreasonable "for instance, [if] they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' A by-law is not unreasonable merely because 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."

Publication

Notice must be given a month before publication in local press. A copy must be available for public inspection, at the local authority office, and for sale for a sum not exceeding 20p; but these obligations are frequently flouted.

 

Local Authority powers to make local by-laws

Local authorities are statutory corporations and operate within a framework laid down by statute. They have no powers to act other than where they are expressly authorised by law to do so.

 

There is a wide range of statutory duties which authorities are required to fulfil, and an even wider range of permissive powers enabling them to undertake defined activities if they so wish.

 

By-laws often made under the Local Government (Miscellaneous Provisions) Act 1982 or the Local Government Act 1972; in order that the local authorities may "promotion of economic, social and environmental well-being of their area or their inhabitants" the Local Government Act 2000 clarifies their positive right to make local enactments.

 

The Secretary of State may, by order amend, repeal, revoke or disapply any enactment which obstructs authorities from taking steps to promote the well-being of their communities.

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