User groups met BW’s Legal Director Nigel Johnson on 23 June to discuss changes to the Mooring Guidance for Continuous Cruisers following the BW v Paul Davies judgement. NABO, RBOA and the National Bargee Travellers Association (NBTA) were present, as were user groups like the IWA and British Marine Federation that favour BW’s attitude to continuous cruisers. BW Head of Enforcement Denise Yelland and Head of Boating Sally Ash were also present.
It was clear that BW only wanted user groups to contibute “minor tweaks” to the revised Guidance which BW has already published in draft form. The main purpose of the meeting appeared to be an attempt to portray the revised Guidance s endorsed by user groups.
Mr Johnson informed the meeting that BW would be bringing more cases against continuous cruisers in order to refine the courts’ interpretation of the law. He was adamant that the Davies judgement “is the law” at the moment, regardless of the fact that it is only a County Court judgement and so does not create a formal legal precedent or make case law (only the higher courts such as the High Court and Appeal Court can make case law).
User groups wanted to know how BW would enforce its revised guidelines. BW stated that the top priority for enforcement would always be licence evasion, but then BW would target the boats without moorings that had moved the least, such as those that had not moved out of a single kilometre. BW would also target areas where there were the most complaints about overstaying on 14-day or visitor moorings. Using boat sighting records, BW plans to draw up a list of candidates for a “polite letter” in the first instance. The NBTA stated that the letters they knew of threatened people with homelessness – which does not seem at all polite.
It was clear from the meeting that BW see the enforcement process as a deterrent, and make policy decisions regarding the level of enforcement that is proportionate “to keep delinquent behaviour at a minimum without blowing the budget taking steps that would please Mussolini” according to Nigel Johnson. Sally Ash added that BW aimed to start bringing forward a few cases (to court) as a deterrent against those who were blatantly ignoring the Mooring Guidance for Continuous Cruisers or not moving at all.
The NBTA brought its own revision of the Guidance to the meeting which is based on research carried out into the intention of Parliament when Section 17 3 c ii of the 1995 British Waterways Act was drafted. This is designed to reflect what Parliament actually intended Section 17 3 c ii to allow, as opposed to BW’s interpretation of it. BW originally wanted all boats to have moorings when it presented its Bill to Parliament in 1990, with criminal sanctions against anyone caught living on their boat without a permanent mooring, but Parliament prevented BW from doing this. Unfortunately the NBTA’s research was not carried out in time for Paul Davies to use the results. The NBTA informed BW that the revised Guidance as it stands would be open to legal challenge based on the information obtained about the intention of Parliament.
Changes to the Guidance
Proposed changes to the Mooring Guidance for Continuous Cruisers at present are to delete
“those using a boat licensed for continuous cruising must genuinely be engaged on a journey or series of journeys. Such journey or cruise must take place ‘throughout the period of [the licence]’ and therefore requires progression around the network, or at least a significant part of it.”
and replace it with
“those using a boat licensed for continuous cruising must genuinely be moving, in passage or in transit throughout the period of the licence on a journey of some length”
The revised guidance also includes references to the Paul Davies case and to a Scottish case, Crown Estate Commissioners v Fairlie Yacht Slip Ltd. However, the Davies case does not create a formal legal precedent. The use of the Fairlie Yacht Slip case is misleading, and BW’s barrister succeeded in misleading the judge in Bristol over this case. The Fairlie judgement stated that navigation does not include mooring. However, this was in the context of defining whether a public right of navigation included the right to install permanent mooring equipment on the sea bed. There is no public right of navigation on canals as such, and Section 17 3 c ii concerns the act of tying a boat up to the bank for a temporary period, not installing permanent mooring equipment.
Article 8 violation
Wisely BW has not attempted to include the judge’s point that if the main purpose of your use of your boat is for your home, the navigation is incidental and so not bona fide (not genuine). If BW treated everyone whose main purpose of using their boat was as their home as not complying with the law, it would be blatantly violating Article 8 of the Human Rights Act.
It is likely that BW will issue the final version of the revised guidelines after July. The question remains – why does BW see 10% of the boats as such a huge problem?
You can read BW’s revised Guidance here Mooring Guidance Continuous Cruising Revision April 2011
The NBTA’s re-write is here NBTA Mooring Guidance Continuous Cruisers rewrite