BW has claimed that despite discussing “the possibility of introducing greater enforcement powers for BW as part of the new legislation” at its January 2011 Board meeting, it is not seeking extra enforcement powers through its amendment (99A) to the Public Bodies Bill (which will transfer BW to charity status). BW’s Legal Director Nigel Johnson reported back to BW’s May Board meeting that this would not be possible and the appropriate method of seeking change to BW’s enforcement powers was by an Order under the Transport and Works Act 1992 – in other words, a Statutory Instrument. To our knowledge, BW has not used the Transport and Works Act Order process in the past to gain additional powers. The only way to successfully object to a Transport and Works Act Order is to bring a Judicial Review. Public consultation is not obligatory.
It is clear that amendment 99A exempts BW from the provision that would prevent a charity from “making subordinate legislation”. Subordinate legislation includes Byelaws and Statutory Instruments.
BW has been revising its General Canal Byelaws for several years. In 2010 a boater obtained the new draft byelaws through a Freedom of Information Act request, and was also informed that the byelaw revision is on hold pending BW’s move to charity status.
Draft byelaw 51 states that it is a criminal offence punishable by a Level 2 (£500) or 3 (£1000) fine to disobey the instructions of a BW officer regarding where and how to moor your boat. Draft byelaw 52 states that it is a similar criminal offence to disobey a mooring time limit sign or to moor where there is a “no mooring” sign.
Nice try BW – but unfortunately, Parliament did not consider it appropriate to give you those powers in the 1995 British Waterways Act because it did not think such minor infringments should be punishable by criminal penalties. And, as a result of that decision by Parliament in 1995, any signs delineating mooring restrictions are still advisory, not complusory. It is a general principle of law that byelaws cannot be used to amend Acts of Parliament.
Byelaw 70 proposes to criminalise anyone working on their boat on the towpath if it causes annoyance to another person. This will give free reign to the kind of prejudiced attitudes that have already done so much to interfere with the homes of residential boaters and will hinder those who care about the condition of their boats. And what if a boat has broken down and has to be repaired in situ? Get real, BW! Byelaw 75 says it would be an offence to organise a gathering of boats or people – which sounds like a waterway version of the Criminal Justice Act. Byelaw 82 says it will be an offence to put up or occupy a tent on the towpath and byelaw 59 criminalises people who light fires on the towpath. The last two will no doubt put quite a lot of anglers at risk of prosecution…
Byelaws have to go out to consultation so if and when these byelaw proposals are resurrected, make it clear that BW were denied these powers by Parliament once before.
The draft byelaws are here Discussion Draft Revised BW Byelaws Feb 2010