Kennet and Avon Boating Community Website

BW claimed in its reply to the River Lea mooring plan consultation responses that it had case law to support its statement that its draconian proposals for mooring restrictions did not threaten boat dwellers’ human rights. Boater Simon Robbins made a Freedom of Information request to BW in September asking for copies of the relevant judgements. BW refused Simon’s FOI request. You can read the correspondence here. It is also published on whatdotheyknow.com here http://www.whatdotheyknow.com/request/case_law_relied_on_for_statement

2 September 2011

Dear British Waterways Board,

In your document “List of themes emerging from public consultation
with BW’s responses in response to a recent public consultation” [the River Lea consultation]
(See http://www.britishwaterways.co.uk/media/documents/BW-responses-to-consultation-feedback-themes.pdf
at line 17 the following appears:

Theme – The proposals are discriminatory, threaten the human rights
of continuous cruisers and/or are prejudiced against continuous
cruisers

BW response – BW welcomes continuous cruisers who bona fide
navigate because they are an asset to the waterways. It is nonsense
to suggest that proposals to support compliance with lawful
conditions are either discriminatory or in breach of human rights.
Case law already supports our position.

Please provide referenced copies of all the Judgements you rely on
to make the assertion in the final sentence of your response.

Yours faithfully,

Simon Robbins

5 September 2011

Dear Mr Robbins,

Thank you for your e-mail.

We will now review the information that we hold relating to your request and a response will be sent as soon as possible but in any case within 20 working days of the receipt of your request on 2nd September 2011.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways

30 September 2011

Dear Mr Robbins,

I am writing further to my e-mail of 5th September.

We understand that this is not a request for ‘information’ for the purpose of the Freedom of Information Act 2000. As you will appreciate, we cannot legally advise you on such matters. However, please note that we were referring to the Davies decision but there are various legal decisions on such matters. Furthermore, each matter needs to be looked at on a case by case basis.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways

Allan Richards left an annotation (30 September 2011)

It is quite clear that Mr Robbins is asking for information (ie documents) and not legal advice. That BW is unable to provide the information requested suggests that no case law exists that supports BW’s assertion.

1 October 2011

Dear Sarina,

I am not asking for legal advice as should be clear from the
original request.

British Waterways has made a public statement in its Annual Report
that it has in its possession case law to justify its position. If
that statement is true I am simply asking that you cite and
disclose the which Judgements you rely on to justify your
statement.

You say in your last reply that there are other cases beyond the
Davies case. Why the apparent reticence about confirming what these
are?

Please will you now answer the original question in full. Given BW
chose to make the original assertion in its annual report I would
expect you to be able to evidence the justification for such an
important statement. Why is BW so reluctant to provide documentary
evidence on such an important issue for some boaters, who feel that
BW does not fully respect their Human Rights?

Yours sincerely,

Simon Robbins

1 October 2011

Dear Information Request,

Please deal with my earlier comments at your earliest convenience.

Yours sincerely,

Simon Robbins

Simon Robbins left an annotation (1 October 2011)

There seems to be a reluctance on BW’s part to disclose what court judgements are actually available by which boaters can understand what the Courts have actaully said about whether BW abuses boaters Human Rights. I leave the question open as I have limited evidence either way.

If BW have really do have comfort from Court Judgements that they are playing ball, why so reluctant to make the cases they rely on available to the rest of us and put people’s minds at rest? One could easily get cyncical and conspiratorial and suggest they are just making it up and actually they haven’t yet fully tested the issues throughly in the Courts? Over to you BW!

12 October 2011

Dear Mr Robbins,

Thank you for your e-mail which I received on 3rd October.

I understand that you are not satisfied with the response that we provided on 30th September and now seek further clarification.

I will take this opportunity to expand on the reason for our response; under the Freedom of Information Act 2000 (FOIA) public authorities are not required to provide explanations, comments, or justification or indeed any other information unless it is already held on record, nor to enter into other correspondence. Neither does the FOIA require a public authority to create records in order to reply to a request for information.

In that context your original request falls outside of the scope of the FOIA as your request constitutes justification of the statement made within the “List of themes emerging from public consultation with BW’s responses in response to a recent public consultation” document. In addition to this, your correspondence below confirms that this is indeed the case as you expand on your original request for us to provide you with “evidence of the justification of this statement”.

That said, in the spirit of openness and accountability we did confirm for you that when the statement was written we were referring to the BW v Davies decision. However, this clarification is not made at the exclusion of any other legal decision(s) which may be relevant to any particular case.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways

Simon Robbins left an annotation (12 October 2011)

Seems to me that BW have hereby admitted that they do not have anything on record to back up their assertion in the annual report.

“… under the Freedom of Information Act 2000 (FOIA) public authorities are not required to provide explanations, comments, or justification or indeed any other information unless it is already held on record, nor to enter into other correspondence. Neither does the FOIA require a public authority to create records in order to reply to a request for information.”

This part of the the reply seems to suggest that if there is case law to back up their point BW do not know or will not say what it is?

This state of affairs does seem to put their assertion that “It is nonsense to suggest that proposals to support compliance with lawful conditions are either discriminatory or in breach of human rights”, into doubt, if BW cannot/will not back this up with any substantial body of case law?

At best the questions of potential discrimination and the compatability of some of BW’s actions with the Human Rights Act remains open, whatever BW might want you to believe?

Tags: continuous cruising, FOI request, Human Rights Act, liveaboards, Paul Davies

This entry was posted on Monday, October 17th, 2011 at 7:13 pm and is filed under BW Policy News and FOI Act Requests, Continuous Cruisers, The Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.