There are only 13 days left to respond to the DEFRA
consultation on the New Waterways Charity. See
http://www.defra.gov.uk/consult/2011/03/30/waterways-1103/
It ends on 30th June. If you plan to respond, below is
one boater’s response which may provide some inspiration in answering
the questions.
It’s always better to respond to consultations in your
own words, as duplicate responses may carry less weight.
_*Responses to individual consultation questions*_
*Chapter 2: A national ?trust? for the waterways
Question 1: Do you agree that, over time, the charity
should worktowards including other navigations, including the EA
Navigations in the next Spending Review?
I am concerned that this consultation does not appear to ask the
consultees the over-arching question of whether BW should be transferred
to charity status. BW should not become a charity. Transfer to charity
status will sever the Parliamentary accountability through DEFRA and
Ministers, making it even less accountable to boat owners and the
general public than it is now.
The present provisions for Ministerial oversight of BW
are inadequate.DEFRA has neglected to provide proper oversight of BW. In
view of theway in which BW appears to be out of control, this
oversight should bestrengthened not disconnected. Therefore the EA
navigations should notbe transferred to charity status for the same reason.
Question 2: Do you think that the proposed requirements
of the Trust Declaration are the right ones? Are they sufficient/are there
others which should be considered?_
The Trust Declaration should include an explicit
declaration that that
NWC is a housing authority and, as the successor of a
public body,
should include a commitment to be bound by the European
Convention on
Human Rights/ Human Rights Act; the 2010 Equality Act;
the Freedom of
Information Act and the 2004 Housing Act in the same way
that a public
body is bound by this legislation.
_Question 3: Do you agree that the suggested charitable
purposes for the
NWC are broadly the right ones? Can you think of other
necessary
requirements?_
No. The draft charitable purposes of the NWC make no
reference to people
who live on boats, or to the residential use of the
waterways. Indeed,
Robin Evans, BW’s Chief Executive, said at the 2010 BW
AGM ?It’s
questionable that giving people places to live is a
charitable object?,
apparently in complete ignorance of the fact that over
1,000 housing
associations in England and Wales have charitable status.
If there is to
be charitable status for the waterways the charitable
purposes must include:
The relief of
poverty;
The
protection of the homes of boat dwellers and The provision
of waterway space for boat dwellers to both travelin without
permanent moorings and to keep their homes permanently moored.
Question 4: Do you agree with the proposed ?mission
statement?? How could it be improved? _
It should include a commitment to respect the homes of
boat dwellers who
live on the UK’s canals and rivers.
_Question 5: Do you agree with the proposed ?belief?
statement? How
could it be improved?_
It should include recognition that thousands of people
make their
legitimate homes on the waterways.
_Question 6: Do you agree with the proposed ?vision?
statement? How
could it be improved?_
It should include a vision of the waterways in the future
as a source of
housing that has a minimal carbon footprint, is
affordable, has a low
impact on the environment, makes the maximum use of
renewable energy and
contributes to reducing the UK’s domestic CO2 emissions.
_Question 7: Do you agree that the New Waterways Charity
should enjoy
the same powers and be subject to similar legal duties to
maintain the
waterways as British Waterways currently is?_
No. This would be inconsistent with the spirit of the
Public Bodies
Bill, which originally aimed to prevent the transfer of
enforcement
powers to a charity as a safeguard for the public. The
Government
intended the exercise of these powers to remain in the
public sector and
to continue to have Parliamentary oversight. It is an
anomaly, and
therefore inappropriate and unreasonable, that BW should
stand out as an
exception to this safeguard structure. The fact that BW
is clearly out
of control merely emphasises this anomaly. Oversight of
BW needs to be
increased, not reduced.
If BW becomes a charity the following changes should be
made:
*
Section 43
(3) of the 1962 Transport Act should be declared
incompatible
with the European Convention on Human Rights;
*
Sections 13
(2) (3) and (4) of the 1971 British Waterways Act
should be
repealed;
Sections 8
(1) (2) (3) and (4) of the 1983 British Waterways Act
should be
repealed;
The NWC
should not have the power to bring injunctions banning
boat owners
from its waterways for life;
*
The /Mooring
Guidance for Continuous Cruisers/ and plans for Local
Mooring
Strategies should be abandoned;
*
The February
2010 Revised Draft Byelaws should be abandoned;
*
The amendment
to Schedule 5 of the Public Bodies Bill secured by
BW, exempting
the functions of the British Waterways Board from
the
provisions of Clause 22 falling within section 22(3)(b) to (e)
should be
abandoned, and
*
The powers of
BW or the NWC to make “subordinate legislation”
should be
restricted to the existing Byelaw making powers under
the 1954
British Transport Commission Act.
In place of these powers, which are inappropriate for a
21st century
charitable body, the following powers and duties should
be established:
*
Legal
recognition of the homes of boat dwellers on a par with that
enjoyed by
house dwellers.
*
Statutory
protection of boat dwellers from harassment and unlawful
eviction of
the same magnitude as the protection enjoyed by house
dwellers,
applicable to all boat dwellers on inland and coastal
waters,
whether or not they have a permanent mooring.
*
Clarification
that the test for compliance with Section 17 3 c ii
of the 1995
British Waterways Act is as intended by Parliament,
namely,
whether the boat has remained in one place for longer than
14 days
without good reason.
*
Explicit
recognition that boat dwellers without permanent moorings
are classed
as travellers for the purposes of Section 225 of the
2004 Housing
Act and of the EU requirement placed on the UK to
draw up a
national plan in 2011 to ensure that every homeless
traveller has
access to suitable accommodation; and as a minority
group for the
purposes of the 2010 Equality Act and the Human
Rights Act.
*
Security of
tenure for mooring holders on a par with that enjoyed
by the
tenants of houses.
*
Statutory
protection from increases in boat licence fees and
mooring fees
on a par with that enjoyed by the tenants of houses
in respect of
rent increases.
*Chapter 3: Engaging people in the new charity*
_Question 8: Do you agree with the proposed governance
model for the new
charity? What improvements could be made?_
No. The proposed model is merely a re-branding of the
current structure.
This, together with the removal of the accountability
which derives from
BW’s status as a public body will create what is
effectively a private
fiefdom in which up to 10,000 boat dwellers without
moorings will live
in fear of increasingly draconian restrictions and/or the
forced removal
of their boats rendering them homeless, depriving them of
the only
financial asset they own and banning them from the
waterways for ever.
The Trustees should include at least one person from
Shelter; at least
one person from a charitable housing association, and at
least one
person from an organisation that represents and supports
travellers,
such as Friends, Families and Travellers or the National
Bargee
Traveller Association.
_Question 9: Should funds raised locally by the Local
Partnership be
spent on local priorities? Why?_
As long as the Directors? remuneration remains at the
current level
there will be a major obstacle to the credibility of the
NWC in
attracting charitable donations.
_Question 10: Who do you think should be encouraged to
sit on Local
Partnerships? How should the nominations panel be
constituted; who are
the essential parties?_
It is essential that representatives of Shelter, local
housing
associations and the traveller liaison officers of local
authorities sit
on local partnerships in order to provide protection for
the homes of
boat dwellers.
_Question 11: Is between 8 and 12 the right size for a
Local Partnership?_
The effectiveness of Local Partnerships will depend far
more on the
calibre of the members, not the number of seats around
the table.
_Question 12: Which are the particular subjects or
activities you think
may require the attention of a specific sub-committee of
a local
partnership?_
There should be a watchdog committee set up to prevent
the NWC from
setting regulations or passing Byelaws, Statutory
instruments, Private
Acts of Parliament or other legislation that makes boat
dwellers
homeless or prevents them from accessing their places of
work, education
and health care; from collecting mail and from exercising
their right to
vote.
_Question 13: How best can the New Waterways Charity
strike the right
balance between local needs and the needs of the
waterways network as a
whole?_
_Question 14: How could the charity encourage effective
working between
different communities and partnerships who share the same
waterway?_
By treating boat dwellers in a way that encourages
respect from the
settled community rather than misleading the settled
community into
forming prejudices against boat dwellers. That way,
goodwill and social
links between the two groups will increase, making both
feel more
positive about putting practical effort into caring for
the waterway
that they live on or near.
_Question 15: In what ways could people be helped to
become more
involved and take more responsibility for their local
waterways? What
might the barriers be, and how could they be overcome?_
Boat dwellers will feel more motivated to do both of
those things if
they do not feel constantly threatened with having to
choose between
having their boats seized by BW or being forced to travel
in a way that
denies them access to their places of work, education and
health care.
_Question 16: In what ways could more people be
encouraged to volunteer
for the waterways? What might the barriers be, and how
could they be
overcome?_
Boat dwellers will feel more motivated to volunteer if
they do not feel
constantly threatened with having to choose between
having their boats
seized by BW or being forced to travel in a way that
denies them access
to their places of work, education and health care.
Treating boat
dwellers in a way that encourages respect from the
settled community
rather than misleading the settled community into forming
prejudices
against boat dwellers will encourage both groups to
volunteer.
_Question 17: What would a successful volunteer programme
look like?
What would it achieve?_
It would include boat dwellers on an equal basis of
respect to the
respect shown towards the settled community. This will
require a
complete culture change within BW. However the distrust,
fear and anger
felt by boat dwellers due to the harassment they
experience from BW will
take many years to overcome.
_Question 18: Do you agree that the new charity should
initially focus
on securing fair representation, and move towards a greater
element of
direct membership over time?_
Securing fair representation should be pursued regardless
of whether the
NWC proceeds. Fair representation must include a culture
shift within BW
so that boat dwellers, especially those without permanent
moorings for
their homes, are regarded as legitimate members of the
waterways
community who deserve an equal say in its management
decisions
consistent with that of other user groups, rather than
being regarded as
undesirables to be “curtailed”. (“We must
curtail new entrants to the
continuous cruiser market” was stated by Sally Ash,
BW’s Head of
Boating, at a public meeting on 1 March 2011 in Stanstead
Abbotts
village hall).
A direct membership scheme is a not necessarily the best
way to achieve
fair representation. As a former charity fund raiser, I
believe that
most charities’ membership consists of 80% to 90%
inactive members and a
minority of actively involved members. This would not necessarily
achieve the objective of fair representation.
_Question 19: Do you agree with the proposed make up of
the Council?
Which interests should be represented?_
Because of our substantial existing direct and indirect
financial
contributions to the waterways boat owners should have
the majority
representation on both the Council and on the body of
Trustees. The
Council and the Trustees body must also both contain at
least one
representative of Shelter; a major social housing
provider, and a body
representing travellers, such as Friends, Families and
Travellers or the
National Bargee Traveller Association.
_Question 20: Should a proportion of the Council be
directly elected? If
so, who should be entitled to vote?_
This proposal would only be viable if there was a direct
membership
scheme. However if pursued, a distinct and effective
boating
constituency should be in the majority in any such
structure.
_Question 21: Should the independent chair of the
Appointments Committee
be chosen by Committee members or the Council? What
skills would they need?_
The holder of any key position in the proposed NWC should
have an
understanding of the intention of Parliament regarding
Section 17 (3)
(c) ii of the 1995 British Waterways Act and an ability
to see through
and challenge BW’s misrepresentation of its legal powers
with regard to
boat dwellers without permanent moorings.
_Question 22: Are there other topics that you consider
would benefit
from Council scrutiny committees?_
There should be a Council scrutiny committee tasked with
safeguarding
the homes of boat dwellers; updating and improving
licence terms and
conditions; policy and mooring agreements in line with
the Human Rights
Act and in line with best practice in social housing
provision; and
examining and updating the legislation affecting BW/ the
NWC to ensure
that it is compatible with the Human Rights Act; the 2010
Equality Act
and Section 225 of the 2004 Housing Act, among other
legislation.
_Question 23: Are there any other activities of British
Waterways that
would be best placed in the CIC?_
*Chapter 4: Creating a sustainable future for our
waterways*
_Question 24: Government policy is to support the
movement of freight on
inland waterways, where it is economically sustainable.
Do you agree
that the status quo is no longer an option? Which of the
5 options do
you prefer? What other options should we consider?_
The commercial waterways should continue to be maintained
for freight as
they are now. The main barrier to promoting and
increasing freight on
the waterways is BW’s attitude that this in conflict with
its property
development business. In particular, BW sees waterside
land holdings as
far more profitable when used for commercial development.
This is a huge
structural disincentive against developing water-borne
freight. Moving
to a new status is an opportunity to revitalise, develop
and expand
freight on the waterways in line with EU policy. This could
create a
win-win situation of moving freight off the roads,
creating or replacing
jobs and securing a future for the commercial waterways.
The
re-classification of certain cruising waterways as
commercial should
also be considered.
_Question 25: What measures of the effectiveness of NWC?s
use of public
funds (through the Government Funding Contract) would be
appropriate?_
There needs to be far more rigorous scrutiny than at
present. I have no
confidence in the ability of the current directorship of
BW to use
public or charitable funds effectively given that BW has
just wasted
around £90,000 of public money evicting one boat dweller
from its
waterways (Paul Davies) who had merely committed a minor
infringement of
a guidance note that has no force of law. This is a gross
distortion of
priorities for the effective use of taxpayers money and
shows a
recklessness in the use of public funds that will fatally
compromise the
NWC.
_Question 26: Are there other areas where you think NWC
could:_
_? Increase its commercial income_
_? Its voluntary income_
_? Its third party income?_
_Question 27: Are there other areas where you think NWC
could save more
money/make greater efficiencies?_
The salaries and pensions of its senior staff, in
particular its
Executive and Non-Executive Directors
_Question 28: We would welcome any views you have on the
analysis in the
Impact Assessment and relevant evidence that we could
draw upon in
finalising the assessment._
There will be an adverse Human Rights impact on boat
dwellers as
detailed in Sections 1 and 2 above.
There will be an adverse Justice impact on boat dwellers
as detailed in
Sections 1 and 2 above.
There will be an adverse Social impact on boat dwellers
as detailed in
Sections 1 and 2 above.
There will be an adverse Equality impact on boat dwellers
as detailed in
Sections 1 and 2 above.
The fact that the Impact Assessment for the NWC proposals
has not
considered any of these impacts demonstrates gross
negligence.
*Chapter 5: The transition to civil society*
_Question 29: New Waterways Charity (NWC) is just the
working title for
the new charity. Which of the following suggestions for
the name of the
new charity do you prefer, and why?_
g) [your suggestion]?
My suggestion would be to re-absorb both BW and the EA
into DEFRA under
the overall management of the current executive
directorship of the EA
in order to provide proper accountability to boat owners
and the public
and to end BW’s organisational culture of systematic
abuse of the rights
and homes of boat dwellers. It should then be re-branded
as the National
Navigation, Flood Defence and Water Quality Authority.
_*Additional points in response to the consultation*_
_*Response to New Waterways Charity Consultation*_
I am a boat dweller and have been a British Waterways
(BW) boat licence
holder for 5 years. My boat is my only home. I do not
have a permanent
mooring for my boat. I wish to provide my response to the
consultation
as follows.
_*Introduction*_
I am very concerned that this consultation does not
appear to ask the
consultees the over-arching question of whether BW should
be transferred
to charity status. BW should not become a charity.
Transfer to charity
status will sever the Parliamentary accountability
through DEFRA and
Ministers, making it even less accountable to boat owners
and the
general public than it is now.
In particular I am deeply concerned about the complete
absence in both
the consultation document and in the impact assessment of
any reference
at all to the estimated 12,500 adults and children who
make their
legitimate homes on boats on BW canals and rivers. I am
seriously
concerned about the Human Rights implications of the
amendment secured
by BW to Schedule 5 of the Public Bodies Bill. Finally I
believe this
consultation is defective because it is being carried out
at a time when
the Public Bodies Bill is still being drafted by
Parliament and at the
same time the transfer to charity status is being
regarded as a fait
accompli.
_*1. Failure to consider boat dwellers in the
consultation.*_
I am extremely concerned that the consultation document
and the
associated impact assessment are comprehensive in their
scope and yet
they make no mention of the estimated 18% of boats that
are the owner’s
only or main home. There are no accurate figures for the
number of
people living on boats, but taking an average of two
people living on
each boat, that is around 12,500 adults and children on
6,300 boats on
British Waterways (BW) canals and rivers. The Residential
Boat Owners
Association (RBOA) believes there are around 50,000 or
more people
living on boats on the UK’s inland and coastal waters. In
2008 there
were 88,267 licensed boats on Britain’s inland waterways.
In 2010 the Association of Inland Navigation Authorities
(AINA)
published /Residential Use of Inland Waterways/, a report
which was
part-funded by DEFRA. There seems to be a distinct lack
of joined-up
government here. The AINA report states that residential
use of
waterways is a form of housing, yet DEFRA’s consultation
on giving the
waterways charitable status has failed to explore or
quantify the
benefits to the community of the waterways as housing.
According to AINA, residential use is recognised as
making a valuable
contribution to the multi-functional use and long-term
sustainability of
the waterway network, particularly on those navigations
where it is part
of the cultural heritage. The consultation covers issues
of
multi-functional use, long-term sustainability and
cultural heritage,
yet it is completely silent on the matter of people whose
boat is their
home.
The unique character and heritage of the inland waterways
is in part due
to the historical and current existence of a community of
people who
live, work and travel on boats. The liveaboard boating
community is a
tourist attraction in itself which encourages people to
visit the
canals. Moored boats and the people who live on them
provide all-year
round safety, security and assistance on the towpath
which benefits and
attracts visitors and deters crime and anti-social
behaviour. Many
liveaboard boaters practice the traditional crafts of the
inland
waterways such as decorative boat painting and ropework;
others provide
services to boaters and the public such as welding,
floating shops or
coal and diesel supplies.
People living on boats were identified by the Department
for Communities
and Local Government (DCLG) as a specific household group
in its 2007
Practice Guidance for local authorities on Strategic
Housing Market
Assessments. Yet despite the fact that any changes to the
way the
waterways are run will affect liveaboard boaters, whether
or not they
have a mooring, more than any other group, DEFRA has not
attempted to
assess the impact on boat dwellers. The equality analysis
and social
impact tests have failed to consider whether the proposed
changes will
increase the risk of homelessness among residential
boaters or whether
liveaboard boaters will be forced to give up their homes
as a result of
any changes. DEFRA concludes that there will be no impact
on human
rights and justice, even though there is virtually no
legal protection
for the homes of people who live on boats apart from
Article 8 of the
Human Rights Act, and despite BW’s continuing attacks on
the homes and
rights of liveaboard boaters without moorings.
_*2. The timing and content of the consultation*_
To be proper, consultation must be undertaken at a time
when proposals
are still at a formative stage. It is clear that the
proposal to
transfer BW to charity status is at an advanced stage
now. The absence
of the question “Should BW be transferred to charity
status?” in this
consultation demonstrates that the transfer is being
regarded as a fait
accompli. The implementation timetable of transfer by
April 2012 further
demonstrates that the proposals are at an advanced stage.
It follows
that I do not believe that the responses to the
consultation will be
conscientiously taken into account if they express
opposition to the
transfer to charity status.
The fact that the Public Bodies Bill is still being
debated in
Parliament and at the time of writing has not passed the
second reading
or the committee stage in the House of Commons further
underlines the
fact that adequate time has not been given to allow those
consulted to
give intelligent consideration and an intelligent
response. Intelligent
consideration and response cannot be achieved while the
exact extent of
the powers to transfer and the powers to be granted to a
transferee
organisation are unclear.
In addition I do not believe that the responses to the
consultation
which express opinion regarding the extent of the
transferee’s legal
powers will be conscientiously taken into account since
BW has already
secured an amendment to Schedule 5 of the Public Bodies
Bill which
appears to circumvent this aspect of the consultation.
I therefore believe that the consultation is defective
and the product
of the consultation will be open to legal challenge based
on the
decision in R v Brent LBC ex parte Gunning [1986] 84 LGR
168.
_*3. The Human Rights implications of the BW amendment to
the Public
Bodies Bill*_
British Waterways (BW) should not be transferred to
charity status
because of the routine and systematic harassment, threats
of
homelessness and actual evictions it directs at the
adults and children
who live on boats on its canals and rivers. This
harassment is
sanctioned by the Directors of BW but has no sound basis
in law. If the
landlord of a house treated their tenants in the same way
they would be
convicted of a criminal offence. This raises issues of
Human Rights,
specifically the violation of Articles 6, 8, and 14;
Protocol 1 Article
1; Protocol 2 Article 1 and Protocol 3 Article 1 of the
European
Convention on Human Rights.
The present provisions for Ministerial oversight of BW
are inadequate.
DEFRA has neglected to provide proper oversight of BW. In
view of the
way in which BW appears to be out of control, this
oversight should be
strengthened not disconnected.
*The homelessness consequences of the BW amendment to the
Public Bodies
Bill*
The amendment to Schedule 5 of the Public Bodies Bill
secured by BW,
exempting the functions of the British Waterways Board
from the
provisions of Clause 22 falling within section 22(3)(b)
to (e) means
that BW will have the power to make “subordinate
legislation”. This
means that BW will have greater powers to make law than
now.
Currently BW has the power to promote Private Acts of
Parliament and
Byelaws. The Public Bodies Bill will give it the power to
make Statutory
Instruments as well. The procedure for passing Statutory
Instruments
requires very little Parliamentary or public scrutiny
compared to
Private Bills and Byelaws. Byelaws have to be consulted
on and
interested parties can petition against Private Bills and
give evidence
direct to the Parliamentary Select Committee which
considers the Bill.
We already have evidence that BW is seeking to increase
its enforcement
powers as part of the Public Bodies Bill. This was
discussed under item
11/003 in the BW Board meeting on 27 January 2011. The
amendments to the
Public Bodies Bill agreed before 11 May 2011 relating to
the use of
Statutory Instruments will not provide sufficient
protection for boat
dwellers against the violation of their Convention
rights.
The consequences of giving BW extra powers and removing
the statutory
protection for boat dwellers arising from the Human
Rights Act, the 2010
Equality Act and the Freedom of Information Act that
currently stem from
BW’s status as a public body, will be the actual or
threatened
homelessness, removal from school and denial of access to
employment,
healthcare, postal mail and voting of up to 10,000 adult
and child boat
dwellers. The estimated 6000 to 10,000 boat dwellers who
do not have
moorings for their boats will be at risk, in spite of the
intention of
Parliament to protect these boat dwellers when it passed
the 1995
British Waterways Act. Some 10% (3500) out of the total
35,000 BW
licensed boats do not have moorings (information from
BW). The majority
of these 3500 boats are people’s homes. It will be
virtually impossible
for most of these boat owners to exercise their
Convention rights as
individuals in order to gain redress in the event that
the New Waterways
Charity seizes their home under Section 8 of the 1983
British Waterways Act.
*The rights of BW boat licence holders*
The 1995 British Waterways Act entitles boat licence holders
to use the
waterways without a permanent mooring provided that they
do not stay
more that 14 continuous days in any one place. Section 17
3 states that
in order to be licensed, a boat must be insured, must
comply with safety
standards, and must either have a permanent mooring or:
“(ii) the applicant for the relevant consent
satisfies the Board that
the vessel to which the application relates will be used
/bona fide/ for
navigation throughout the period for which the consent is
valid without
remaining continuously in any one place for more than 14
days or such
longer period as is reasonable in the circumstances”
(Section 17 3 c ii).
The intention of Parliament when it passed the 1995
British Waterways
Act was to allow boat dwellers to continue to live on
their boats
without having a permanent mooring, in a way that enabled
them to remain
in employment; continue to send their children to school,
and have
protection from homelessness. BW had originally sought
criminal
sanctions against anyone caught living on their boat
without a permanent
mooring including a Level 5 fine (£1,000 at the time) and
a daily
penalty of 10% of Level 5 (£100). Parliament did not
allow this and
acted to protect the homes and livelihoods of boat
dwellers (House of
Commons Select Committee on the British Waterways Bill,
1993-94; British
Waterways Bill, 1990). Consequently, the law allows boat
dwellers to
remain within reach of a place of work, their children’s
school, a GP or
other health care, and to collect their mail from a land
address. They
can also exercise their right to vote by declaring a
local connection.
In drafting the 1995 British Waterways Act, Parliament
intended that the
test for whether a boat was complying with Section 17 3 c
ii was whether
it had remained longer than 14 continuous days in the
same place without
good reason. The House of Commons Select Committee
rejected any
prohibition on returning to the same place within a
specified period and
declined to set any further requirements such as a
minimum distance to
be travelled. The 1995 Act and other relevant legislation
do not specify
any particular travelling pattern for boats without
moorings apart from
the “14 day rule”. (House of Commons Select
Committee on the British
Waterways Bill, 1993-94).
*BW’s attempts to circumvent the 1995 Act*
Since 1995, BW has made many attempts to circumvent
Section 17 3 c ii in
order to terminate the licences of boat dwellers who do
comply with
Section 17 3 c ii in an attempt to achieve its original
objectives in
the 1990 Bill that Parliament considered would be
detrimental to the
lives of individuals and families living on boats. BW has
made
successive attempts to force boats without moorings to
follow travelling
patterns which are substantially in excess of that
required by the 1995
Act. For example it has done this by claiming that its
own
interpretation of Section 17 3 c ii (the Mooring Guidance
for Continuous
Cruisers) sets out what is required to comply with the
1995 Act.
BW has the power to terminate a licence if it believes a
boat has
contravened Section 17 of the 1995 Act, and it also has
the power to
seize an unlicensed boat and charge the owner for its
removal under
Section 8 of the 1983 British Waterways Act. When it does
this it also
obtains an injunction which effectively evicts the owner
and the boat
from BW waterways for life. In other words, termination
of the boat
licence means that the boat dweller and their family will
become
homeless, be forcibly deprived of their home and be
banned from BW’s
2000 miles of waterways for ever.
A number of boat dwellers have been made homeless in this
way because
they did not know enough about the law to defend
themselves in court
(Freedom of Information Act response from BW, 2010). Many
other boat
dwellers have been pressurised to rent moorings which
they cannot
legally live on because most moorings do not have
residential planning
permission (personal communications from Geoff Mayers and
Paul Davies).
Some have “gone underground” following the
threat of a Section 8 notice
and injunction and live in fear of being discovered and
losing their homes.
The /Mooring Guidance for Continuous Cruisers/, published
in 2004,
states that boats without moorings must make a
progressive journey
throughout the entire canal system or a large part of it,
without
turning back unless they reach a terminus, and that
acceptable reasons
for remaining in one place do not include needing to have
access to a
place of employment or education. Adhering to the
Guidance prevents boat
dwellers from accessing their places of work, education
and health care;
from collecting mail and from exercising their right to
vote.
BW has attempted to enforce the /Mooring Guidance for
Continuous
Cruisers/ by sending letters to thousands of boat
dwellers over the past
few years written in extremely threatening language
claiming that not
following the /Guidance/ amounts to contravention of the
law and saying,
for example “your boat has been seen between X and
Y” (two distinct
places which are many miles apart); “we may remove
and demolish your
boat”; “it is likely that you will need to make
arrangements for
alternative accommodation. Please contact your local Council’s
Benefit
and Housing department as they may be able to help you
find another
place to live” and “You are at risk of losing
your boat”. Some 150 boats
on the Kennet and Avon canal were served such letters in
June 2009 for
instance (BW enforcement letter to Pamela Smith).
At the same time, since 1995 BW has declined to use its
statutory powers
to enforce the “14 day rule” either
consistently or fairly. This leaves
boat dwellers without moorings in a position where there are
no
consistent consequences for staying longer than 14 days
and yet they are
routinely threatened with homelessness for travelling in
a way that
Parliament intended them to be able to do.
*Recent proposals by BW for additional restrictions on
boat dwellers*
Since the publication of the /Mooring Guidance for
Continuous Cruisers/
there have been successive attempts to drive out boat
dwellers without
moorings by imposing additional restrictions. BW has
worked with parish
and county councils which object to the legitimate
presence of lived-in
boats on the canals to create restrictions on the amount
of time boats
without moorings can stay in particular areas (Minutes of
meetings held
in Bathampton on 15 June, 10 August, 28 August and 10
Sept 2009;
/Waterways and Public Involvement in Staffordshire/ 2011;
/Community
Mooring Strategy Action Plan/ 2011). This led to a
consultation in 2009
and the publication in 2010 of new mooring policies
stating that boats
without moorings would be subject to “Local Mooring
Strategies”
including restricting the amount of 14-day mooring space
available;
setting travelling distances and “no return
within” restrictions
substantially above and beyond those required by the 1995
Act; charging
boaters daily fees of up to £14,000 per year to stay
longer than the
time limits, and enforcing these charges by not renewing
the boat
licence until the charges are paid. All of these
restrictions are
unlawful and are targeted against boats without moorings.
BW is
currently seeking to impose such restrictions on the
Kennet and Avon
canal; on the Lee and Stort navigations and in
Staffordshire and is
proposing to do so in many other locations (/Policies for
Mooring Along
the Banks of BW Waterways/ 2010; /Proposals for the
Management of
Moorings along the Rivers Lee & Stort, Hertford Union
and Regents
Canals/ 2011).
The effect of these restrictions if complied with would
be to force boat
dwellers to travel distances that would prevent them from
being able to
travel to a place of employment; prevent them from
sending their
children to school; prevent them from accessing ongoing
health care from
a GP, clinic or hospital; prevent them from collecting
mail from a land
address, and prevent them from exercising their right to
vote by making
a declaration of local connection. If they wish to retain
access to
their workplace, school, health care, correspondence and
right to vote,
they will face homelessness following termination of the
boat licence
either for not complying with the restrictions or for
being unable to
pay excess mooring charges of up to £14,000 per year
demanded at £40 per
day. This is a punitive sum compared to the average cost
of a permanent
mooring which is around £2000 per year and as such
amounts to a fine
even though it is called a “charge for an extended
stay” in BW’s 2010
mooring policy.
*Lawfulness of proposed restrictions*
These restrictions are unlawful because BW does not have
the power to
set mooring restrictions, to erect signs delineating
mooring
restrictions, or to impose fines for the infringement of
mooring
restrictions. (House of Commons Select Committee on the
British
Waterways Bill, 1993-94).
BW enjoys a ?catch all? power under Section 43 of the
1962 Transport Act
in relation to its management of the waterways. However
it is reasonable
to conclude that subsequent legislation modifies this
?catch all?
accordingly. Further, legislation that acts as an
?override? (such as
the Human Rights Act and the Equality Act) further
qualify this ?catch
all?. As stated above, Parliament did not allow BW to
impose criminal
sanctions or daily fines against anyone caught living on
their boat
without a permanent mooring.
In the original 1990 Bill BW had sought powers to impose
fines for a
breach of a mooring restriction. BW also sought powers in
the 1990 Bill
to post signs designating mooring restrictions.
Parliament forbade BW to
impose fines for violation of a mooring restriction. As a
result of
this, BW withdrew the wording relating to the posting of
signs
designating mooring restrictions. BW had previously
presented evidence
that stated that signs designating mooring restrictions
were advisory in
nature. BW also withdrew the wording relating to the
designation of
mooring restrictions. BW had also laid out in the 1990
Bill an offence
for failing to obey an instruction of a BW officer which
was also denied
by Parliament. The Commons Select Committee also rejected
any “no return
within” restrictions (House of Commons Select
Committee on the British
Waterways Bill, 1993-94).
As a consequence this meant that BW was confirming that
any mooring
restriction would remain as ?advisory? and not ?obligatory?.
A further principle in law is that legislation is written
in ?living
words? and the meaning of the words does not change with
changing
circumstances. The current legislation is binding and
must be
interpreted in the courts in line with the original
meaning of the words
and the original Will of Parliament. These factors
combine to provide an
override over Section 43 of the 1962 Transport Act so as
to prevent BW
from designating compulsory mooring restrictions and from
setting
movement rules beyond what is in Section 17 3 c ii of the
1995 Act (the
“14 day rule”).
In this context, the authority given in McCarthy &
Stone (Developments)
Ltd v Richmond upon Thames LBC [1989] UKHL 4 in which
reference is also
made to the authority given in Attorney-General v Wilts
United Dairies
Limited [1922] 38 TLR 781 (HL) further underlines the
principle that a
public body such as BW may not make a charge unless there
is express
authorisation in statute to do so. Furthermore, in R v
Secretary of
State for the Environment and others, ex parte Greenpeace
Ltd and anr
[1994] 4 All ER 352, Potts J stated: “Primary
legislation is not to be
construed by reference to general policy statements or
departmental
guidance”. In other words, primary legislation
stands on its own two
feet. Where guidance or policy statements are used to
justify the
interpretation of legislation by a public body so that
the public body
may achieve its objective, that public body is inherently
going beyond
the scope of the primary legislation and is acting /ultra
vires/.
*Bristol County Court judgement*
In 2010 took action against Paul Davies in Bristol County
Court on the
grounds that he had not complied with section 17 3 c ii
of the 1995 Act.
The judgement stated that Mr Davies’ cruising distance
was not enough to
comply but declined to endorse BW’s /Mooring Guidance for
Continuous
Cruisers/. The court did not hear evidence regarding the
House of
Commons Select Committee deliberations in 1993-94 because
this
information was not available to Mr Davies at the time.
Despite the judgement being in a county court and
consequently not
forming case law, BW issued a press release misleading
the public into
believing that this judgement set a precedent which would
apply to other
boaters without moorings. It has subsequently sent
letters to a number
of boats without moorings enclosing this press release,
claiming that
the judgement applies and that they are contravening the
law even though
they do move to a different place every 14 days (personal
communication
from Abigail North).
*Harassment of boat dwellers*
In another case in Bristol, BW is attempting to seize a
boat and remove
the owner George Ward from its waterways for non-payment
of a debt of
£150. Tenants of houses are explicitly protected from
eviction for debts
of this size. In Cheshire in 2010, BW forced sick
pensioners and their
carers to move their boats in freezing conditions with
the result that
one of them had to be rushed to hospital the following
day. BW has also
issued patrol notices requiring boats to move when they
have been
prevented from travelling by thick ice (personal
communication from
Geoff Mayers). Paul Davies himself has been forced to
give up his job
and leave BW waterways. He was unable to meet the court’s
requirement to
comply by taking a mooring because no residential
moorings are available
(personal communication from Paul Davies).
During 2009 and 2010 BW drafted revised byelaws which
include many of
the provisions which Parliament prevented it from
including in the 1995
Act. These byelaws have been put on hold pending the move
to charity
status (Revised Draft Byelaws 2010). If BW is given the
power to pass
Statutory Instruments there is no doubt that it will use
those powers to
achieve its 1990 objectives of driving out boat dwellers
without
moorings which Parliament would not allow it to do in
1995. The
homelessness and displacement resulting from this would
be unthinkable
at a time when the EU has just announced a strategy to
integrate
Europe?s 11 million Gypsies and Travellers and the UK has
been given
until the end of 2011 to draw up a national plan to
ensure that every
homeless Traveller has access to suitable accommodation.
In order to protect boat dwellers from homelessness, BW
should not be
transferred to charity status unless and until the
following conditions
are met:
*
Legal
recognition of the homes of boat dwellers on a par with that
enjoyed by
house dwellers.
*
Statutory
protection of boat dwellers from harassment and unlawful
eviction of
the same magnitude as the protection enjoyed by house
dwellers,
applicable to all boat dwellers on inland and coastal
waters,
whether or not they have a permanent mooring.
*
Clarification
that the test for compliance with Section 17 3 c ii
of the 1995
British Waterways Act is as intended by Parliament,
namely,
whether the boat has remained in one place for longer than
14 days
without good reason.
*
Explicit
recognition that boat dwellers without permanent moorings
are classed
as travellers for the purposes of Section 225 of the
2004 Housing
Act; the 2010 Equality Act; the Human Rights Act and
the EU
requirement placed on the UK to draw up a national plan in
2011 to
ensure that every homeless traveller has access to
suitable
accommodation.
*
Security of
tenure for mooring holders on a par with that enjoyed
by the
tenants of houses.
*
Statutory
protection from increases in boat licence fees and
mooring fees
on a par with that enjoyed by the tenants of houses
in respect of
rent increases.
*REFERENCES (copies can be provided on request)*
Attorney-General v Wilts United Dairies Limited [1922] 38
TLR 781 (HL)
British Waterways Act 1995
British Waterways Act 1983
British Waterways Bill 1990
British Waterways Board meeting minutes, 27th January
2011
British Waterways Board v Paul Davies, Claim No: 9 BA
00333, Judgement,
Bristol County Court 30th November 2010
British Waterways Board v George Ward, Claim No 0 BA
00729, Bristol
County Court, 4th May 2011
Community Mooring Strategy Action Plan, British Waterways
2011
Enforcement letter to Pamela Smith, British Waterways
29th June 2009
Equality Act 2010
Freedom of Information Act 2000
Freedom of Information Act response from BW on Continuous
Cruising
Procedure, May 2010
House of Commons Select Committee on the British
Waterways Bill, Minutes
of Evidence 1993-94
House of Lords Special Report from the Select Committee
on the British
Waterways Bill, 1991
Human Rights Act 1998
McCarthy & Stone (Developments) Ltd v Richmond upon
Thames LBC [1989] UKHL 4
Minutes of meetings in Bathampton Village Hall, 15th
June; 10th August;
28th August and 10th September 2009
Mooring Guidance for Continuous Cruisers, British
Waterways 2004
Personal communication from Paul Davies, 2011
Personal communication from Geoff Mayers, 2011
Personal communication from Abigail North, 2011
Policies for Mooring Along the Banks of BW Waterways
2010;
Press Statement: British Waterways Board v Paul Davies
1st April 2011,
BW Press Office
Proposals for the Management of Moorings along the Rivers
Lee & Stort,
Hertford Union and Regents Canals, British Waterways 2011
R v Brent LBC ex parte Gunning [1986] 84 LGR 168
R v Secretary of State for the Environment and others, ex
parte
Greenpeace Ltd and anr [1994] 4 All ER 352
Residential Use of Inland Waterways, Association of
Inland Navigation
Authorities 2010
Revised Draft Byelaws, British Waterways, February 2010
Transport Act 1962
Waterways and Public Involvement in Staffordshire,
British Waterways 2011