Satisfying the board – an analysis of the judgement

The original post

Minos describes his post “…this is only an attempt at an objective analysis by an interested amateur”.

It is reproduced here without comment, suffice that we think it important to examine all possible implications of this judgement.

From the judgement:
“in general terms section17 of the Act required all vessels used on the waterways either to have a permanent mooring site or to be used bona fide for navigation throughout the period of the licence. This was achieved by making the issue of licences conditional on the Board being satisfied either that the vessel would have a permanent mooring site or that it would be used bona fide for navigation throughout the period of the licence.”

From the text of the Act, subsection (3) (c) (ii)
“the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.”

I’d not looked closely at this before, but in legal terms it is explicit: the British Waterways Board are empowered by the Act to judge for themselves what constitutes ‘bona fide’ navigation and what doesn’t. Not only that, but by using the legal term ‘bona fide’ in the Act, the intention of the person is more important than their actions. This is explained in para. 13 of the judgement. In effect, it means that BW are entitled to refuse a licence because they don’t like the look of your application – and it is up to you to prove that they are being unreasonable.

On the detail:
From Bouvier, with referencing removed:

The law requires all persons in their transactions to act with good faith and a contract where the parties have not acted bona fide is void at the pleasure of the innocent party. If a contract be made with good faith, subsequent fraudulent acts will not vitiate it; although such acts may raise a presumption of antecedent fraud, and thus become a means of proving the want of good faith in making the contract. In the civil law these actions are called (actiones) bonae fidei, in which the judge has a. more unrestrained power (liberior potestas) of estimating how much one person ought to give to or do, for another; whereas, those actions are said to be stricti juris, in which the power of the judge is confined to the agreement of the parties.

(And before anyone complains that Bouvier is an American source, the US and the UK share a lot of common law, and this is one principle shared by both.)
This definition of ‘bona fide’ is the basis of the defence claim that ‘The defendant’s deliberate compliance with the law could not deprive his actions of good faith.’ It is also the justification for BW’s actions.

Anyway, back to the point. What this means is that the BW authority is legally entitled to judge for themselves whether they think that an applicant is acting “in good faith.” Given his misconduct described in para. 6 of the judgement, he clearly gave them every reason to believe he wasn’t – not least because of his navigational, professional and social ties to such a small geographical area. They also concluded that he did not act ‘in good faith’ in para. 10 of the judgement.

BW chose to concentrate on the definition of the word ‘navigation’ – and they are empowered Parliament to use that emphasis if they so choose.

The bit that I am really interested in is this part of para. 15 of the judgement:
“It is possible to envisage use of a vessel which fell short of the Board’s concept of continuous cruising but which still qualified the vessel for a licence under section 17(3)(c)(ii).” In effect, the Judge acknowledges that genuine continuous-cruisers may very easily fail to adhere to the letter of BW’s guidelines but still adhere to its spirit in good faith – bona fide.

Put it all together and it seems to me that the implication is that while the movement of your boat on the water matters, what you do on land seems to matter more.

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6 Responses to “Satisfying the board – an analysis of the judgement”

  1. Minos MonsterID Icon Minos says:

    Paul’s response is pretty illuminating.

    He has his own interpretation of the law, and rejects BW’s interpretation. And he just doesn’t get that when the Act says that BW must satisfy itself that an application is legitimate, their interpretation of the law will carry all the force of law unless he can prove that they failed to use due diligence.

    This is what I personally regard as a good example of lawmaking: Parliament and its counsel have not micromanaged the law. They have set the parameters for the different types of licence and then told the relevant authority to deal with the finer points.

    • The Fox MonsterID Icon The Fox says:

      I agree with your first statement, I could agree with your second except that there should be a clear chain of accountability which is currently lacking. It has been said that boaters can challenge in the courts by judicial review but to proactively do this takes more resources than any boater has. NABO has attempted to clarify these issues and been bogged down by BW’s refusal to deal with their concerns openly and fairly. So the only platform left for the ordinary boater to disagree with BW’s interpretation is to contest a Section 8 – a very unsatisfactory and stressful path.

      BW have shown in the years since the 1995 Act that they do not accept the spirit of the Act and their attempts to interpret have always been seen by boaters to try and subvert the Act as much as, for instance, Paul’s.

      It has always been my contention that BW can only manage the waterways through consent and for that they need credibility. Not an arbitrary and sometimes seemingly random set of criteria.

      This is not helped by the common perception that Simon Salem and Sally Ash want the waterways rid of liveaboard boaters. If it is true that there is a distinction in their mind between the leisure liveaboard (so-called “genuine continuous cruiser”) and the boaters within the community near Bath then it is almost impossible to draw this line in any set of rules. Hence the “Guidance” for continuous cruisers. But this cannot be seen to deny a legitimate set of boaters access to a public resource, the canal system. And it cannot be at odds with the letter of the 1995 Act.

      • Minos MonsterID Icon Minos says:

        Fair point, although in paragraph 4 of the judgement it says:
        “There is, as the defendant accepts, now no general public right to use the inland waterways managed by British Waterways and their use is controlled by the granting of licences and by imposing conditions, enforceable ultimately by the power to remove non-compliant vessels.”

        Exactly who BW is accountable to and for what really depends upon your perspective.

        Obviously, it is accountable to Parliament. According to its own website and publications, it’s purpose is to ‘care for Britain’s historic canals and rivers (’ ‘so that they fulfil their full economic, social and environmental & heritage potential (’

        So it could be argued that BW doesn’t exist to look after boaters’ interests. It can be said instead that it has been granted authority over boaters’ use of the waterways in order to look after the waterways themselves. While BW may not regard boaters as a nuisance as such, it could be said that they have a perfect right to deal with boaters who they believe are acting like a nuisance. If this is the case, then they don’t need the consent of boaters. They have all the authority they need (to remove boaters that don’t abide by the rules) and justification in the various Acts of Parliament that have given them the duty to care for the waterways.

        What is missing is an equivalent organisation and infrastructure to represent the boaters.

        • The Fox MonsterID Icon The Fox says:

          My use of the word ‘consent’ was in the pragmatic sense, ie BW do not have the resources to deal with all those boaters they regard as a nuisance. And the legal infrastructure they have cannot cope with the numbers involved.

          Also the powers granted to them (to remedy defaults of Section 17 (3) exist in Section 17 (4) and they do not seem to be used ever. It could be said that one of Paul’s mistakes was to fight on his (political) interpretation of the law when his best chance was to challenge the process instead.

  2. Panda MonsterID Icon Panda says:

    There is also a very good article by Allan Richards on Narrowboatworld entitled ‘Breakthrough for NABO’

  3. paul biddy MonsterID Icon paul biddy says:

    Interesting. Bw, as a public authority, are not above the law but a servant of and subordinate to it. Bw are certainly not empowered to judge or interpret law – this is the job of a judge not a public servant. Yes the judgment states bona fide is good intent but does this definition really help in future management…? My ‘misconduct’ was to navigate my boat every 14 days or longer while also maintaining my home and work and as a result of my own evidence, the judgment ruled adversely. Was my navigation therefore made in ‘bad faith’ or in simple ignorance of the meaning of a law never properly defined? Yes the ruling questions a need to continuously cruise, but it certainly does not state that those who do CC may also fail to bfn. All uncertain and appealable – although no appeal is planned and I remain vulnerable. The ruling does not threaten to make homeless anyone else – just me.