The CRT consultation on changes to the Boat Licence Terms and Conditions ends on Sunday 21st December 2020. We think CRT’s proposals for changes to the Boat Licence Terms and Conditions are unreasonable and unlawful. Both the National Association of Boat Owners and the National Bargee Travellers Association are extremely concerned about these proposed changes. Please respond if you can.
Below we publish an example response to the consultation. It is really important that the views of liveaboard boaters are represented in this consultation. If implemented, the proposals will drive some of our community off the water and into homelessness. Please complete the consultation questionnaire opposing these proposals. Your response will carry more weight if you can put it in your own words, however the example response is a guide. You can download a copy of the example response here Example response to CRT Licence T&C consultation 2020
Unfortunately CRT has decided that consultation responses can only be completed online here https://wh.snapsurveys.com/s.asp?k=159843204588
The full consultation questionnaire can be downloaded, but not completed, from CRT’s web site here: https://canalrivertrust.org.uk/refresh/media/library/42500-your-boat-licence-terms-and-conditions.pdf or see https://canalrivertrust.org.uk/national-consultations
According to CRT, consultation responses will be anonymous; CRT say that submitting your response will take around 40 minutes, but you have to complete the questionnaire in one sitting. You can’t save your answers and continue submitting your response later. However, you can write your comments on each question beforehand and copy and paste it into the consultation questionnaire.
Your Boat Licence Terms & Conditions: Example consultation response
The consultation is divided into nine sections headed “A” to “I”. We suggest answering “disagree strongly” to all the questions in each section, and then adding the following comments in the boxes provided below Sections A to I.
Section A. Home Mooring requirement to “cruise”
Comments
The boat licence is issued under Section 17 of the British Waterways Act 1995, not as claimed in the General Terms and Conditions for Boat Licences under Section 43(3) of the Transport Act 1962. All the conditions for its issue or revocation are set out in the British Waterways Act 1995.
CRT seems determined to covertly undermine the statutory nature of the boat licence and move it to a civil contract basis with its own invented terms and conditions. However, contract terms, even if agreed, can never override statute. No-one is legally bound by any of these additional terms or conditions even if they agreed to them. The boat licence must be issued if any applicant meets the conditions of Section 17 of the British Waterways Act 1995, and can only be revoked if the licence holder breaches the conditions set out in the 1995 Act.
As in the last review in 2015, CRT has provided no evidence of the scale of the problems it claims to be seeking to address. We believe that CRT does not have the power to impose such extensive terms and conditions, many of which exceed its legal powers to enforce. CRT should dispense with the Boat Licence Terms and Conditions altogether, and replace them with a statement of the applicable legislation, with one simple condition that “the boat licence holder is required to comply with the applicable legislation at all times”.
The imposition of this condition would be unreasonable and unlawful, contrary to Section 17(3)(c)(i) of the British Waterways Act 1995. The judgement in Canal & River Trust v Geoffrey Douglas Mayers (2013) in the Chester County Court (Claim 0NH00407) is persuasive, especially in the light of the fact that there is no other case law on the matter. In his judgement, H H Judge Derek Halbert stated at paragraph 6.3:
“… A boat which has a home mooring is not required to be “bona fide used for navigation throughout the period of the licence” but neither is it required to ever use its home mooring. The [British Waterways] Act [1995] requires that the mooring is available, it does not say it must be used. The guidelines also have this effect. The boat is still subject to the restriction that it must not stay in the same place for more than 14 days but there is nothing to stop it being shuffled between two locations quite close together provided they are far enough apart to constitute different places.”
The 1995 Act does not define how a boat with a home mooring must travel. In proposing this change, CRT is attempting to use the Boat Licence Terms and Conditions to take powers that it was not granted by statute. In exercising the public functions it inherited from British Waterways, CRT is only able to exercise powers if these have been conferred by statute. If CRT used this condition to terminate a boat licence, it would be acting ultra vires [beyond its legal powers] and a boater could successfully defend the action based on the above; in addition, CRT would be vulnerable to Judicial Review.
This proposal is an attack on liveaboard boaters. As CRT well knows, many liveaboard boaters without a home mooring are forced into a position where taking a home mooring is the only way to avoid having their home seized and removed after enforcement by CRT of its unlawful interpretation of Section 17 (3) (c) (ii) of the British Waterways Act 1995. Because only around 2% of moorings have planning consent for residential use, these liveaboards risk attracting planning enforcement action and/or eviction from the mooring if they spend 365 nights per year on their mooring. Therefore, if the mooring is in the area where they need to be for the purpose of employment, education, family or other reasons, they may quite lawfully spend considerable time moored on the towpath in various places that are near the home mooring. Alternatively, because of the excess demand over supply of moorings, in other cases where removal and seizure of a liveaboard boat has been averted by the boater taking a mooring, the only available mooring is in a very inconvenient location for their employment, education, family or other reasons. This means that the boater will be unable to make use of the mooring even though they are paying the mooring fee.
In addition, CRT has provided no definitions of what is a “genuine cruise” or of what is “nominal use” of the home mooring, and nor has it provided any justification why so-called “nominal” use of the mooring will be disregarded. This would leave boaters vulnerable to arbitrary enforcement action based on the personal opinions and prejudices of individual members of CRT staff.
As in the last review of the Boat Licence Terms and Conditions in 2015, CRT has provided no evidence of the existence or the scale of the alleged “problem” it claims to seek to address. Once again we see so-called “fairness” and the implied accusations of unfairness being used by CRT to attack particular types of boaters, coupled with an inability to recognise and accept that where people have different reasons for their use of the waterways, their usage patterns will be different, and yet the boat licence and mooring permit is open to anybody to purchase regardless of their intended usage pattern.
Section B. Insurance
Comments
CRT already has powers to enforce the requirement for Third Party insurance in Sections 17(4) and 17(5) of the British Waterways Act 1995 and this proposed condition would unlawfully exceed these enforcement powers. Provision of the insurance certificate alone is sufficient for the boat to be on the waterways lawfully. In seeking to also demand the policy terms and conditions and the policy Schedule, CRT would be acting unlawfully, in excess of its powers under Shcedule 2 of the 1995 Act.
The proposals regarding sharing information regarding the use, apparent structure and construction of the boat would fall foul of the General Data Protection Regulation (GDPR). The GDPR prohibits making agreement to the sharing of such personal information a condition of any service. CRT would be in breach of the GDPR if it imposed this blanket requirement. The GDPR also prohibits making agreement or consent to a third party such as the insurer and/or broker providing CRT with information a condition of any service and this proposed change would also fall foul of the GDPR.
The sharing of information with insurance companies about the movements of any boat under the heading of ‘use’ of the boat; information about the apparent structure of the boat; and information about the construction of the boat, would also contravene the boat owner’s right to privacy and respect for their home under Article 8 of the European Convention on Human Rights in the case of a boat that is lived on.
In practice, references to ‘sharing’ information with third parties includes selling information to commercial parties, which would also be unlawful on the part of CRT without express consent from the boat owner.
Prohibiting the use of insurance policies that are not authorised and regulated by the UK Financial Conduct Authority would be unlawful contrary to Schedule 2 of the British Waterways Act 1995, which entitles boat licence holders to insure their boats with an EU provider. If this proposal is being made in anticipation of changed conditions regarding the UK’s exit from the EU, it would be unlawful if implemented, because the proposed change seeks to pre-empt and override the terms of any overarching agreement between the UK and the EU regarding financial services.
The requirement set out in legislation is for Third Party insurance cover. The type of cover is specified in Schedule 2 of the British Waterways Act 1995. This is not dependent on the intended use of the boat, and such policies do not specify what the intended use of the boat must be. In exceeding the requirements of Schedule 2 of the 1995 Act, the proposals unlawfully seek to widen CRT’s powers.
Almost every insurance policy will expire at some point during the boat licence period, very often shortly before or shortly after the start date of the licence. Boaters should be able to submit any documentation by email in addition to the web portal or post. Setting a requirement to provide certificates at each insurance renewal will create a cost for CRT. The interaction of B3 and B6 could mean there are some 60,000 certificates being submitted each year. We doubt whether CRT systems are robust enough to cope with this.
Section C. Termination period
Comments
The proposed changes would be unlawful. The grounds for issue and termination of a boat licence are set out in Section 17 of the British Waterways Act 1995. These grounds apply regardless of whether any breaches are ‘repeated’. If CRT introduced this proposal, it would be acting beyond the powers granted to it under the Transport Acts and the British Waterways Acts.
CRT has powers of arrest under Byelaw 39 (1965) of the General Canal Byelaws 1965-1976 which states that “No person shall commit any nuisance in or on any canal”. This power, together with wider Police powers to deal with anti-social behaviour and criminal activity, is perfectly adequate to deal with situations where a boater is behaving in an anti-social manner.
The proposals are extremely one-sided, to the point of being unjust to the boater. What does “unreasonable” mean? Where is the policy setting out how this is to be decided fairly?
There is no definition of what constitutes ‘repeated’ breaches. As they stand, these proposals would allow CRT to collect evidence of breaches, not act on the individual breaches and then compile them into evidence of repeated breaches. In addition the proposals do not define a process for informing boaters in advance that that they are on their last warning regarding ‘repeated breaches’.
No information is provided about the rights of the boater should they dispute the issue, or about how they can appeal against the suspension of the licence, or how the suspension of a licence operates when the boat is being used as a home, or about the process for an ‘internal investigation’, or any transparency regarding how the process can be seen to have been followed, or about the boater’s right to make a complaint, or information about taking such a complaint to the Waterways Ombudsman. There is no information about compensation if the suspension or termination prove to be erroneous.
No information is provided in the case of a boat owner who has more than one boat and the issue is only in regards to a particular boat. It is not made clear whether all licences are terminated, and if not, this term appears to preclude the owner from renewing their existing licences.
The proposal to communicate by post disadvantages liveaboard boaters without a home mooring, who may not access their post for more than 28 days.
Section D. Our obligations & refunds
Comments
This proposal seeks to remove the statutory duty of CRT to maintain the waterways in accordance with Section 105 of the Transport Act 1968. As such it is unlawful. In addition, CRT’s Articles of Association set out that “The Trust’s objects are to preserve, protect, operate and manage Inland Waterways for public benefit for navigation”. If a boat cannot navigate due to failure of CRT then it is legitimate that they should be able to obtain a refund. CRT may seek to limit this, or have a clear policy around refunds, but removing the right to a refund altogether (except when selling the boat) is unreasonable and disproportionate. CRT cannot lawfully limit its liability for negligence to exclude damage to property. A boater is free to make a claim for damages against CRT regardless of the nature of the damage. It is unfair and unjust to deny the boater a refund in cases where boats cannot navigate due to negligence on CRT’s part.
The proposed limits to refunds are unfair on boaters with three-month licences and unfair in cases where a boater upgrades to a Standard Canal and River licence from a Rivers Only licence and then the access to the relevant canal is lost due to CRT negligence.
The requirement to send back paper licence discs by post is outdated and unfair in that it delays the payment of a refund, given that CRT routinely sends licence discs by email for boaters to print out themselves, meaning that even if they send back the paper licences, the boater still has the electronic file with which to print another set of licence discs.
Further, the proposed changes under Section A seek to require all boaters when not on a mooring to be on a “genuine cruise”. CRT makes even stricter unlawful movement demands on boats without a home mooring. To impose an expectation on boaters that they should cruise, without a reciprocal obligation on CRT that cruising should be possible, is unjust.
Section E. Boat Safety Certificate
Comments
CRT already has powers to inspect and remove unsafe boats, which are set out in considerable detail in Section 7 of the British Waterways Act 1983, including a criminal penalty for breach of safety requirements of up to £1,000. These powers include the safeguard for the boater that a CRT officer may not enter a boat without giving 24 hours notice, except in cases where CRT has reason to believe the boat is unsafe and an immediate inspection is required. CRT does not require any further powers to deal with unsafe boats, and the inclusion of this proposal in the Boat Licence Terms and Conditions suggests that CRT is seeking to unlawfully extend the legislation.
In addition, CRT already has powers to enforce the requirement for a Boat Safety Certificate in Sections 17(4) and 17(6) of the British Waterways Act 1995. This proposal conflicts with the provisions of Section 17(6) of the 1995 Act and is therefore unlawful. In addition, the proposal conflicts with Section 17(11) of the 1995 Act which enables the limited use of a vessel without a Boat Safety Certificate, in certain circumstances and with CRT’s consent, which must not be unreasonably withheld. It would be unlawful to impose the proposed requirement because this would unlawfully fetter CRT’s discretion to allow boats to navigate without a Boat Safety Certificate.
In addition, whilst it may be the boater’s responsibility to provide CRT with any updated information in a timely manner, it is not the boater’s responsibility to check that the CRT’s information systems are updated. In any case, the BSS number should be sufficient proof that the vessel meets safety standards.
The GDPR prohibits making agreement to the sharing of personal information a condition of any service. In proposing that ‘Acceptable evidence may include, but is not limited to’ a list of examples, CRT is effectively proposing that in future years CRT can add whatever it likes to the information demanded as evidence, without any further consultation, since the boat licence holder has already agreed that the information demanded is effectively unlimited. This is both unfair and contrary to the GDPR.
This proposal seeks to unlawfully widen the existing powers of CRT under the British Waterways Acts of 1983 and 1995 by introducing a very wide margin of discretion for CRT to demand large amounts of evidence. We believe that this is intended to be used to socially cleanse the waterways of certain types of boaters and as such is both unlawful and unreasonable.
Section F. Wider or larger dimensioned boats
Comments
The proposals under section F would be unlawful if introduced. CRT has a statutory obligation under Section 105 of the Transport Act 1968 to maintain the main navigable channel of the relevant waterways to a) dimensions sufficient to allow passage of any craft that were recorded as having customarily used the particular waterway during the 9 months prior to 8 December 1967, or b) if the waterway or part has been restored or improved since that date, to dimensions such as the restoration work made possible (which could be greater or lesser).
CRT does not have the power to change the dimensions of a waterway (for example by rebuilding a lock so that it is narrower than the statutory width and/or the published width) without a Ministerial Order under the Transport Act 1968. If CRT changed the dimensions of a waterway without a Ministerial Order, it would be acting beyond its legal powers. To state as the proposals do that waterway dimensions may be subject to change would be unlawful. It would also be unjust to change the dimensions of a waterway with the effect that certain boats suddenly become too large and are then subjected to enforcement because they are too large for the revised dimension of a waterway that they are already navigating upon. This would violate the rights of the boater under Article 7 of the European Convention on Human Rights: No punishment without law: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed”. The boater would be in line for substantial compensation, regardless of CRT’s attempt in these proposals to limit the issue of refunds of licence fees.
CRT already has powers in Byelaw 3 (1965) of the General Canal Byelaws 1965-1976 to regulate the use of boats that are not fit for navigation on the canal where they are intended to be used. The proposals unlawfully exceed the power s of CRT as stated in the Byelaws.
CRT already has powers in Byelaw 6 (1965) of the General Canal Byelaws 1965-1976 to regulate the use of fenders. These powers do not extend to prescribing that fenders must be used where there is a risk of striking another boat. The proposals unlawfully exceed the power s of CRT as stated in the Byelaws.
In addition the specific proposal regarding fenders would endanger vessels if adhered to. It is not safe to use side fenders where there is a risk of striking another boat. The most common occasion for a boat to strike another boat is when two boats are using a lock. If either or both boats have side fenders and in some cases bow or stern fenders down, there is a risk that the boats will become jammed in the lock, which could lead to sinking and loss of life. This proposal was clearly devised by a person with no practical experience of inland waterway boating. Narrowboats have sacrificial rubbing strakes along the hull for these situations, to prevent damage to the structure of the boat when locking with other boats. No definition of “proper fenders” has been provided; this proposal would allow CRT to socially cleanse the waterways of certain types of boaters and as such is both unlawful and unreasonable. What fenders would it be so inappropriate to use that it could mean that a boat licence could be terminated and a liveaboard boater lose their home?
Section G. Change of ownership
Comments
CRT does not require any additional licence conditions to manage transfers of boat ownership. CRT already has powers in Section 6 of the 1983 British Waterways Act to to demand information regarding the owners of boat, with criminal penalties for making intentional false declarations of the relevant information. The requirement to either use the online licensing system or to send the information by post is restrictive and outdated. CRT should be able to receive the required information by email.
Section H. False declarations
Comments
CRT does not require any express contractual rights to manage the issue of intentional false declarations and it cannot simply award itself such rights or powers by devising additional licence conditions. In order to gain extra powers CRT requires primary legislation. CRT already has powers in Sections 17(4) and 17(5) of the British Waterways Act 1995 to terminate licences in the event of false declarations regarding the conditions for issuing licences. It already has powers in Sections 5 and 6 of the 1983 British Waterways Act to enforce the recovery of charges and to demand specific information, with criminal penalties for making intentional false declarations of the relevant information. In demanding additional information that is not specified in the legislation, this proposed condition would unlawfully widen and exceed these enforcement powers.
The GDPR prohibits making agreement to the sharing of personal information a condition of any service. In proposing that ‘When licensing your Boat, you must provide information that is true and accurate to the best of your knowledge and belief, including but not limited to’ a list of examples, CRT is effectively proposing that in future years CRT can add whatever it likes to the information demanded, without any further consultation, since the boat licence holder has already agreed that the information demanded is effectively unlimited. This is both unfair and contrary to the GDPR.
Section I. Behaviour towards Trust colleagues
Comments
To introduce this power would violate the rights of the boater under the British Waterways Act 1995. CRT must issue a boat licence if the boater complies with the requirements of Section 17 of the 1995 Act. In addition, the proposal would unlawfully extend the effect of the General Canal Byelaws 1965-1976. CRT already has powers of arrest under Byelaw 43 (1965):
“(1) No person shall assault, resist, obstruct or impede any officer or servant of the Board in the execution of his duties or disobey his lawful orders.
(2) No person shall use scurrilous, abusive, offensive or threatening language on or near any canal”
The introduction of this proposal would place considerable power in the hands of CRT staff to terminate licences on subjective grounds, potentially due to false allegations without any witness evidence regarding the licence holder and without protection for licence holders from similar aggression from CRT staff. There is no reciprocal requirement that CRT staff will not threaten, swear at or be aggressive towards licence holders. It is possible some staff may abuse this provision by deliberately winding up boaters that they don’t like to provoke a reaction. The proposal contains no provisions regarding the boater’s right of appeal or right to independent review. It would be draconian and excessive to terminate a boat licence, which in the case of a liveaboard boater would render them homeless, on the grounds stated.
The idea that the licence holder is responsible for the behaviour of others contradicts an international principle of law. It is a fundamental principle of the rule of law that no person may be punished for an offence that he or she has not personally committed.
In proposing that the behaviour prohibited ‘may include but is not limited to’ a list of examples, CRT is effectively proposing that in future years CRT can add whatever it likes to the list of prohibited behaviour, without any further consultation. The additional implication of this proposal is that it gives CRT either individually or collectively absolute power to decide that any behaviour whatsoever on the part of a boater amounts to a breach of this proposed condition, leading to the arbitrary and unfair termination of boat licences. This is draconian in the extreme and is completely unacceptable.
Additional questions in the consultation
In order to better understand your perspective, we would now like to ask some questions about your boating. Please select which best describes you?
The questions that follow are individual to the person responding, however if you do not want to answer them, you can tick “Other” and put “Prefer not to say”. Questions about age, gender and disability follow, which are optional.
Tags: Boat Licence Terms and Conditions, boat licences, consultation, CRT, enforcement, liveaboards, Section 17, Waterways Act 1995