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Laying down the byelaw
Chris Game
Before councils get excited about plans to let them introduce their own byelaws without Whitehall consent first, Chris Game reminds us of the pitfalls ahead.
For most of us, the chief value of byelaws is to remind us of phenomena never otherwise encountered in our modern lives – hawkers, peddlers, vehicular parks, offensive accumulations, verminous persons. For overseas visitors, though, byelaws are among their first encounters with our governmental authority, and they can be both bemused and confused.
They wonder why the only literature in their taxis is a listing of the obligations of ‘Hackney carriage proprietors’. They read street notices announcing penalties for numerous imaginable and unimaginable offences, from littering, dog fouling, playing ‘tipcat and other dangerous games’, to carrying soot, driving unsecured bulls (important, if your city is centred on a bull ring), and unauthorised erections (buildings, in case you were wondering).
These visitors pop, as one does, into libraries, art galleries, tattooists and knackers’ yards, and everywhere there are these byelaws – all apparently made, in our case, by Birmingham City Council.
And they naturally deduce that the city is an albeit large, but really rather cuddly, self-governing community, with our elected burghers legislating away at their own discretion for, as the 1972 Local Government Act puts it, our ‘good rule and government’ and ‘the prevention and suppression of nuisances’.
Whereupon I have to disabuse them with the news that this byelaw making is a purely delegated power and in fact evidence of a local government system so comprehensively centrally controlled as to be to them almost incredible.
I have to tell them that every single byelaw, no matter how uniquely local, had to be confirmed by the relevant cabinet minister before coming into force.
Moreover, just in case councillors start acquiring legislative pretensions and inserting subversive local conditions into the regulation of, say, kite-flying, beach parties or bait-digging, Whitehall departments produce downloadable sets of model byelaws that obedient councils can just copy.
It’s called the belt-and-braces approach to central government control, and, hardly before time for a government that goes on continuously about empowering us all, even ministers acknowledge that it might be a touch ‘unnecessarily bureaucratic’.
Last year’s Local Government Act allowed local authorities for the first time to make at least some byelaws that would not require ministerial confirmation, and the whole operation of their making and enforcement is currently out to consultation.
Unfortunately, being neither a local authority nor a magistrate, I have no personal experience of either process, so my consultation response is confined to etymology. Specifically, I want to know where the ‘e’ in byelaw came from and why the Government continues to inflict this solecism on us without any apology, explanation or justification.
Yes, I know some dictionaries suggest that ‘byelaw’ is an acceptable alternative spelling, but they’re wrong too – and often in effect admit it, by giving the term’s origin.
It comes from the Old Norse word for a town: ‘byr’, shortened to ‘by’ – as in Derby, town on the River Derwent; Whitby, the white town; Kirkby, village around the church; Ormesby, Worms village (North East dialect for dragons); and Grimsby, town of Grim, its mythical fisherman founder. Even if, as is often assumed, the prefix meant secondary or subordinate, they would still be by-laws – as in by-election, by-product and byob (OK, that one’s made up, though it’s also secondary in its way – bring your own bottle). Byelaws suggest some implausible connection with either cricket or nursery rhyme lullabies.
Byelaw, then, shouldn’t be an acceptable alternative for anyone, but least of all for local government, whose very raison d’etre depends on a recognition of, and nowadays a responsibility for shaping, place.
It would, of course, be quite remiss to end a by-law rant without citing any of those odd laws that turn up on ‘dumblaws.com’ websites – mainly, I assume, fictitious and for the cheap amusement of Americans. Like Great Yarmouth’s reputed refusal to name streets after poets, on the well-known grounds that all poets’ shared defects of moral character.
Or my own local favourite – Birmingham’s onetime attempt to ban topless go-go dancers by requiring them all to wear bras while performing on stage, which they then had to amend to exempt male dancers. Please, someone, tell me that’s not just an urban myth.
Chris Game is professor at the Institute of Local Government Studies (INLOGOV), University of Birmingham
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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin
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