BW’s internal Licensing and Enforcement management reports between June 2011 and March 2012 show that BW has set a target for “all boats not moving at least 30km during their contract period to be within enforcement process “. The reports were obtained by a Freedom of Information request. This target was set before BW revised the Mooring Guidance for Continuous Cruisers as a result of the Davies case and it remained a target after the revision was completed and the Guidance for Boaters Without a Home Mooring was published in October 2011.
The policy of taking enforcement action against “all boats not moving at least 30km during their contract period” is at odds with the evidence given to the House of Commons Select Committee on the British Waterways Bill 1993-94. On 1 July 1993. the following exchanges took place between the Chair of the Committee George Mudie MP and British Waterways Marketing and Communications Manager Ken Dodd:
“Mr George Mudie MP: I would have said from the user’s point of view 28 days would have given more flexibility for the user … What is of interest is, you tell us from an operational point of view why 28 days would be disastrous compared to 14?
Mr Dodd: I would be happy to have no period mentioned at all and rely upon the expression “bona fide used for navigation”. This is an attempt to clarify in the interests of boaters just what we reasonably mean by “bona fide used for navigation”, what are the parameters, that it appears to be eitherr necessary or helpful to put some indication of what genuinely “on the move” means. I think that to extend leaving a boat in one place as long as a month as, as it were, a test or an explanation as to what is acceptable for bona fide navigation, it would seem to me that as long a period as a month in any one place is not really a true reflection of “bona fide used for navigation”.
Mr George Mudie MP: If I were being fair to you I would leave it there because I have not got from you any severe operational reasons that suggest 14 is absolutely necessary as opposed to 28…
Mr Dodd: With respect to the period, we were trying to respond to the test for “bona fide navigation” to give some measure of protection to a boater in those circumstances, so that he or she would be clear in their mind as to the point at which he would begin not to be regarded by British Waterways as using the boat bona fide for navigation.”
In other words, the test for compliance with Section 17 3 c ii is simply whether the boat has been in one place for longer than 14 days without a good reason, not whether it has travelled a specific dustance. The policy of taking enforcement action against “all boats not moving at least 30km during their contract period” is also at odds with British Waterways v Davies, where the judgement stated that a distance of 10 miles (16.09km) was not sufficient to constitute using the boat bona fide for navigation. The distance between Bath and Devizes is just over 30km (18.6 miles).
Also, the policy of taking enforcement action against “all boats not moving at least 30km during their contract period” has remained secret. It was not disclosed to the User Groups who met with British Waterways Legal Director Nigel Johnson and other officers including the Head of Enforcement Denise Yelland, the author of the Licensing and Enforcement management reports, on 23 June 2011 to discuss the revision of the Mooring Guidance for Continuous Cruisers. The policy and the secrecy with which it is being pursued appears to reveal British Waterways’ objective of removing itinerant boat dwellers from its waterways.
Since 1995 boaters have pressed BW to indicate the distance of travel required to comply with s.17 3 c ii of the 1995 British Waterways Act. BW has never responded with a set distance; partly because there is no minimum distance stated in the Act and to set one would be unlawful, and secondly because it prefers to hold a threat over the heads of itinerant boat dwellers with the intention of pressurising them to move off the waterways altogether, rather than giving them information that would enable them to know how to avoid enforcement action.
In addition, BW reported in its Boating Projects report for May 2011 that it has plans to introduce “longer term towpath [mooring] permits” in certain areas such as the Kennet and Avon canal which boaters without a home mooring must pay for to “allow” them to travel in a way that s.17 3 c ii already entitles them to do. To introduce such permits would be unlawful, but to introduce them without informing boaters of the policy of taking enforcement action against “all boats not moving at least 30km during their contract period” amounts to demanding money with menaces.
Now that this information is in the public domain, at least boaters without home moorings will know what they need to do to avoid enforcement action: make sure your cruising range is at least 30km over your licence period. Most people licence their boats for 12 months; if you pay in instalments over the year you still have a 12-month licence. This assumes that BW stick with this target; as we know to our cost, they are habitual movers of goalposts. The reports do not make it clear whether BW is applying this target to boats with moorings.
You can download all the Licensing and Enforcement reports and Boating Projects reports that were provided in response to this FOI here:
The Minutes of Evidence of the Select Committees that drafted the 1995 British Waterways Act are available for the public to read and copy in the Parliamentary Archives, contact firstname.lastname@example.org.