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Public Bodies Bill

British Waterways are unquestionably seeking to utilise the Public Bodies Bill as a channel for grasping at greater powers as they become a private sector body. That the new body will be the identical organisation with modified governance and funding arrangements is clear from the speech of their CEO, Robin Evans, at the 2010 Annual Meeting. He plaintively acknowledges the general enthusiasm of many for the abolition of BW – “Some of you make great play of NWC [New Waterways Charity] being ‘a completely new organisation’, one that ‘is not BW dressed up in new clothes’, ‘not BW as we know it today’. I understand why you want to make the distinction and I agree NWC has to be different in many respects but I don’t think you understand how demoralising it is to the 1,700 people who are employed by BW today and will almost entirely make up the staff of NWC”  . . . “They will be the same people on April 2012 as they were in March 2012 – don’t expect them to think BW and its employees are something different from NWC and its employees.”BW is an organisation typical of the brutish type of authority that prefers the use of force to that of persuasion when dealing with its “subjects”. The constant cry of such authorities is “I need more powers!” – and that has characterised their dealing with Parliament since 1962. The Select Committee reports on BW’s private Bills [those that became the BW Acts of 1971, 1975, 1983 and 1995] make sobering reading. Had Parliament not spoken out so strongly in condemnation of the draconian and inappropriate levels of powers that BW constantly sought, the waterways would have become subject to an intolerable dictatorship. Even so, BW regularly exercises such powers on a bluff basis, asserting their rights to violate the public rights in the confidence that anyone foolhardy enough to challenge them could be easily seen off in local county courts.It was only an unbroken continuation of this approach that led the present Board of British Waterways, as recently as January 27th this year, to discuss “The possibility of introducing greater enforcement powers for BW as part of the new legislation . . . Mr Johnson agreed to report back on the subject to the May Board meeting.”BW have stalled on FoI requests for the May minutes, which has understandably given rise to much consternation in the boating fraternity – especially in light of the HL Select Committee Report damning the subsequent amendment to the Public Bodies Bill relating to BW and the Environment Agency.I am not altogether sure that the boating websites are correct to see the amendment as granting new powers in so direct a form as they are thinking. What the Select Committee objected to was any exception being made to the general clause in the Bill that outlawed the transference of powers that, however appropriately exercised by a body with powers of public governance, would be highly inappropriate for a new, private sector body. Understood in those terms, BW would be correct in asserting that [in the amendment as presently under discussion] they only want to retain powers already possessed by them. The danger is, of course, that this Amendment 99A is but a step in what BW see as the right direction!If I am correct in this, then there IS some hope for improvement after all – the objectionable behaviour of BW in pursuing so many boaters and waterside businesses [even where they are in fact empowered to take the particular course of action] would be definitively curtailed. They have shown themselves to have total disregard for human rights and consultative process; having the same people shorn of any excuse to violate those would indeed be a step forward, and I for one am grateful to the Select Committee for flagging up to government just how FURTHER INAPPROPRIATE it would be to have such powers exercised by a body without the same degree of even nominal oversight that the present organisation 'suffers' under [as BW see it].If the Public Bodies Bill is to be of any benefit to users of the waterways and to those living and working alongside [the powers affect riparian owners & occupiers also, not just boaters, walkers, cyclists anglers etc.], then it is essential that the amendment is voted against come July 12th. If it is passed, then not only will the chance for reform have been lost, but BW will see their way clear to indeed obtaining greater powers. Some of those powers are already 'waiting in the wings' in the form of their new proposed Byelaws, that incorporate powers identical to those BW have been refused before. BW are just waiting for Amendment 99A to be passed before pushing these through for approval, in time for transference to their new structure.

Nigel Moore ● 5148d15 Comments

The government response to the last consultation was to decide that the new body would be subject to the FoI Act only so far as administering the waterways was concerned.To update the saga further: -The Canal & River Trust was formed as a limited company registered with Companies House in October last year. It is owned jointly by BW and the Secretary of State. It has not applied to the Charities Commission for charity status. The Terms of Agreement of the company allow it to sell off all or any part of the waterways, or to offer all or any part of the waterways as security for loans. The same personnel from BW, inclusive notably of the present executive level managers, will form the officers and employees of the company. The Chairman and Legal Director of BW are already Directors of the company, together with an assortment of “Transition Trustees” appointed by government.The government is currently reviewing the “British Waterways Transfer Order”, and has set up a couple of Select Committees to investigate the matter thoroughly [which had not been done at all under the Public Bodies Bill preliminaries]. The Order is expected to transfer BW into the private company as soon as possible.Anyone affected should take careful note of the recent judgment in my case, which contains a litany of pertinent High Court criticism of BW’s present behaviour patterns – bad as they are now, release from direct public scrutiny will not improve matters. [This judge would relate to “Judge Judy’s” repeated warning – “I am an ecumenical abuser”; he accused me of being “stubborn and relentless” in his kinder moments]. Examples of his comments re: BW are: -“I will return to Mr Farrow's evidence below; but I pause to note in the meantime that his evidence in this regard cannot be correct . . .”“Some aspects of their evidence did, however give me some concern as to the approach of BWB to this matter.”“As to the second point, the haste with which BWB thereafter pursued the matter is notable, the more so given the lack of any urgency from the point of view of its maintenance obligations. My interest has also been increased by the inaccuracy in the evidence given by Mr Farrow as to the context in which the section 8 notices were served, which I have already noted.”“As Leading Counsel for BWB accepted in his closing, this evidence is plainly incorrect: . . . The decision to use section 8 . . . is unsettlingly precipitate, especially given BWB's own admission that it is a draconian power which it would usually be very hesitant to use . . .” “Mr Farrow acknowledged the error but offered no explanation for it. I note that he had made a similar error in his first Witness Statement in the Geronimo action: . . .  None of BWB's witnesses offered any explanation either; and nor did Counsel for BWB. The error or inaccuracy is not one of mere detail: Mr Farrow's sworn testimony (I do not recall his witness statement having been corrected before he was sworn) was that it was because none of the boats had moved for a period of 4 months that "it was decided" (the actors are unnamed) that "it was necessary to commence enforcement action against them".”“. . . the fact that BWB has put before the Court an obviously incorrect explanation of the circumstances in which it decided to serve the section 8 notices, and then not offered any further explanation why it was necessary to resort to such a draconian power, has caused me seriously to question what BWB really thought they were doing and what was really their motive.”“In the end, I do not think the matters to which I have referred sufficiently support the inference of collaboration or co-ordination; but they do, to my mind at least, suggest a less than transparent and measured approach . . .”“In the absence of a proper explanation, the overall picture is not, to my mind, one of measured and proportionate response on the part of BWB. My misgivings are further increased by three other factual details. These are, first, the fact that (it is said inadvertently) one of BWB's Enforcement Officers . . . went aboard one of the vessels ('Saifti') to serve a section 8 reminder notice even after BWB had given the Court an undertaking that no such notices would be so served. The second is that BWB continued to assert that the licence application for 'Gilgie' had been made on the false pretence of it being used for 'continuous cruising' whereas in truth the application made was made on the basis of the vessel having a home mooring elsewhere, and was accurate (as I understand BWB now to accept). Thirdly, a somewhat less than moderate and proportionate approach seems to be illustrated by an internal e-mail dated 13th May 2008 from Deborah Figuerido . . . in which the following appears: ‘I think (subject to resources) that we start enforcement action against this boat . . . If I had the resources now I would section 8 it and snatch it' ”“In my judgment, BWB's conduct fell short of its own appropriate and requisite standards, and what I consider to be the gaps in its evidence have caused me concern . . .” “. . . BWB did exercise its powers inappropriately . . .”“The hasty way that BWB proceeded from the start exacerbated the friction which was inevitable in the wake of what he regarded as the unlawful eviction of vessels under his care or control from the off-line moorings . . .”“BWB's claims of untrammelled right, including Mr Johnson's initial insistence . . . that "all rights of navigation on BW managed waterways, whether public or private, arising under any local enactment (which includes the 1793 Act to which you refer) were abolished by section 105 of the Transport Act 1968" was not only wrong (as BWB now accept): it put the dispute on a confrontational and legalistic track that encouraged the Claimant's propensity stubbornly, indeed relentlessly, to defend what he plainly regards as ancient freedoms.”“. . . the fact remains that the prescribed and invariable procedure was not followed . . .”“. . . the fact of BWB's failure to abide by its settled practice, and its failure to correct its process, even after it was well aware that the Claimant was a "live-aboard", remains.”“. . . I consider that BWB has been precipitate in its approach . . .”“They have asserted a right, but they have been less forthcoming as to why its exercise is pressing or necessary for the purposes of discharging their designated functions. There is little to weigh in their favour in the scales of proportionality.”“. . . I do consider that this incident, the failure within BWB to see to it that all relevant personnel were properly informed of the Court undertaking and the importance of it being observed to the letter, the failure to offer me a proper explanation before I called for it, and the failure at the time to deal with the Claimant's not unreasonable requests for an explanation, all further suggest inappropriate haste and carelessness. BWB are given draconian powers: and it is of particular importance that they should be, and be seen to be, deliberate, transparent, fair and careful in discharging their functions.”“. . . their conduct has tended not to soothe, but to exacerbate and complicate, a difficult situation.”. . . . . . . . . Since then we have had another full day in court over the Human Rights issues, and the judge has confirmed his provisional view, in making a firm finding that my Article 8 rights were indeed violated. I am still awaiting the approved written judgment and the Order, so cannot comment further.The simplest pertinent summary of the matter is that BW are shown to be capable of violating Human Rights; capable of ignoring and even denying the public’s legitimate expectation that they should behave according to their representations; capable of acting according to hidden motives having nothing to do with their statutory obligations; capable of swearing to incorrect testimony in court, and indifferent to any need for explaining themselves.It is to these same people that government is preparing the handover of BW’s powers, within the structure of a private company; formed of the identical personnel and identical power structure – and this, even before [if ever] the company applies for charitable status.BW’s executive are already looking forward to being out from under the [nominal] thumb of government and given free rein. As detailed in my previous posts, this won’t just affect boaters; it will affect anyone who wants to enjoy the waterways in any form. If you have concerns, send them to:Sarah Coe, Committee Specialist (Environment) coes@parliament.uk EFRA Select Committee re: British Waterways Transfer Order

Nigel Moore ● 4888d

Sorry for the delayed response George. I had never heard of 38 Degrees, but had a look and it seems very useful. Campaigning is not an activity I’m any good at, but I have forwarded your suggestion elsewhere.Currently, so far as I am aware, the wider public [i.e. outside of the boating fraternity] have not picked up on the implications and plans which will affect so many. Some of the boater groups have published protests, and copies of their objections as sent to the DEFRA consultation. The new National Bargee Travellers Association have been very professional and organised and have lobbied every MP going, but other than that I don’t know. Certainly I had absolutely no response from Mary Macleod.The lack of accountability is one of the major concerns. There is nominal but useless oversight currently by DEFRA and the Waterways Minister, but BW treat both with considerable contempt – perhaps with some reason. Certainly the previous Waterways Minister was practically ballistic in front of the last Select Committee regarding BW refusal to co-operate with him. With even that nominal oversight gone we won’t even be able to contribute to Select Committee examinations of conduct.There is nothing ‘contrary’ in your point about finances; it is a very valid observation. The truth is that BW have never made money [in terms of a profit] and I don’t imagine that it was ever envisaged as becoming capable of doing so. It has always been urged to behave in a financially responsible manner as a good business should and seek to minimise the reliance on the public purse, but the public purse was always going to be needed. With freight usage being deliberately run down in the interests of property development as the more profitable use of the waterways [according to BW anyway], contributions from direct boating use could never add up to a profit. Boat licences nationally contribute around 40% of the maintenance budget.The fact is that we all contribute to the upkeep of the waterways through taxes even if we are not boaters paying out for licences. When you consider just how much revenue is gained by the government through the tourist attraction of the canals that benefits a far wider segment of society than those directly using the waterways, then the idea of government subsidy can be seen as a wise and profitable investment instead of a burden to be shrugged off. That wider financial benefit is not one that can be milked by BW directly, so the government subsidy is merely a repayment into the waterways of a portion of that which they have indirectly earned. Insofar as the government have been short-sightedly diminishing their contribution, they have been responsible for much of the inappropriate drive for self-sufficiency and for the calibre and style of management that BW is afflicted with.What is so extraordinary with the Public Bodies Bill is that the whole point was to diminish unnecessary drains on government resources, and yet the opportunity to streamline BW as it changes has not been taken. The present management are, instead, to be transferred across at their current salary levels! Think what a difference it could make if the self-seeking upper management had been reduced to National Trust levels. At the moment, the top management level at BW cost the taxpayer millions per annum – and that is before their self-appointed bonuses.The proposed new charges under the draft Byelaws could never hope to defray such expenses and the cost of collection would in all probability outweigh the income. That won’t stop them of course; I have an example already of a new scheme for moorings control on the Lea that BW estimate will actually cost them money, but the big thing for them is control.That’s a long-winded way of getting around to answering with a negative your point that charging for everything might assist BW’s parlous finances – sorry!

Nigel Moore ● 5096d

My apologies George,  I CAN be more specific. It belatedly occurred to me that I could expand on what it all meant for non-boaters without giving BW ideas, simply by quoting the proposed new Byelaws that they already have ready & waiting in the wings [as it were].Note that just because they want to pass a law making something a criminal offence does not necessarily mean that they intend to implement it – they just want the power available to call upon whenever they choose to exercise it.It is trait common to all little would-be totalitarians. A prime example going back over 40 years would be the passing of a law in Western Australia outlawing any camping [including sleeping under the stars or in your car] anywhere in the State outside of recognised and authorised camping/caravan sites. So whenever I went off bush walking along tropic coasts in the Pilbara, rolling up in my swag each night with a small campfire watching my billy boil – I was breaking the law; I was a criminal.The same applied when making the thousand mile drive down to Perth, when I’d pull over to sleep – I was committing a criminal offence each time. I wasn’t worried, mind you, because apart from the fact that the nearest police officer was likely to be hundreds of miles away, they would not have bothered themselves with me anyway. The law was passed so that the police could exercise it when convenient; the impetus to pass the law was the growing incidence of biker vs surfer scuffles near the beaches, when groups would congregate to sleep in their cars near the cool of the beach in hot mid-summers, and the usual things happened when people got drunk and tribal. The new law meant that the police could threaten any such group with arrest if they didn’t drive off.Same principle applies with BW. They will, for example, criminalise walking the dog, horse riding or cycling the towpath without BW’s consent, but may magnanimously consider a general consent to be in place until such time as they choose to withdraw that.With that preamble, just realise that, absent the consent, you will be a criminal liable to prosecution: Byelaw 5 OFFENCES – PENALTIES “A person who contravenes any of these Byelaws shall be guilty of an offence and liable on summary conviction to a fine not exceeding level [2]/ [3] on the standard scale provided for by Section 37 of the Criminal Justice Act 1982 as amended.” Under Byelaw 7 CONSENTS GRANTED BY BW, “. . . that consent (a) shall be in writing; and (b) may be given subject to such reasonable conditions (including conditions requiring the applicant for or holder of the consent to make payments to BW) as BW may determine.” Furthermore, 7(4) “Any person who is performing any act on or in relation to a waterway under or by virtue of a consent shall produce the consent to an authorised officer whenever requested to do so.” BW’s comments in the Draft show that they are hoping for a maximum fine of either £500 or £1000, depending on discussion with Government.So, for particulars [and who knows? You might be glad to see some of them in force]:Part VIII – TOWPATHS & OTHER LANDVehicles & animals on towpaths54 (1) “No person shall ride or drive any animal or vehicle over any towpath or other land belonging to or under the control of BW in connection with any waterway unless –(a) he does so in accordance with the consent of BW;”Horse Riding56 “A person who rides a horse on any part of a towpath or any other land forming part of a waterway shall not do so: (a) without the consent of BW . . .”Pedal cycles57 (a) “No one shall use a pedal cycle (including a cycle with supplementary power assistance) on a towpath without the consent of BW . . .” Fires & fireworks59 (a) “No person shall, without the consent of BW, light or discharge any firework on or over the waterway.”Commercial, etc. activities on towpaths, etc.60 (1) “No person shall, except in accordance with the consent of BW on any towpath or other land forming part of a waterway – (a) display anything for the purpose of advertising or publicity, or distribute anything; (b) sell or expose or offer anything for sale, or carry on any trade or business; or (c) tout for, or solicit money, reward, custom or employment of any kind; or (d) use any part of the waterway as a location for filming or video recording for commercial purposes.” (2) A person shall have the written consent of BW with him when undertaking any of the activities referred to in paragraph (1).”Animals to be controlled62 “No person shall cause or permit any dog or other animal in his charge to enter or remain on any land comprised in a waterway unless it is under proper control . . .”There is stuff on Wires, pipes, drains etc which, as BW explain, “seeks to address increasing incidents of encroachment etc by adjacent developers.” Then there is –PART X – MISCELLANEOUS RECREATIONAL ACTIVITIESOrganised events75 (1) “No person shall organise any boat race, regatta, angling match, cycle rally, sponsored walk or any event or function which may result in a gathering of vessels, or which may cause a crowd to assemble on or by the towpath or any other land forming part of a waterway, except in accordance with the consent of BW.”Waterskiing & other activities77 (1) “This Byelaw applies to (a) waterskiing, jet skiing and aqua-planing; (b) kiting or parachute towing; wet biking or the use of any personal water craft; competitive rowing or training for competitive rowing; ice skating; and any other activity similar to any of those activities.” (2) “No person shall carry on any activity to which this Byelaw applies without the consent of BW on any waterways at any time . . .”Model aircraft & boats79 (1) “No person shall (without the consent of BW): (a) on the waterway release any power-driven model aircraft for flight or control the flight of such an aircraft; (b) cause any power-driven model aircraft to take off or land on the waterway; or (c) operate or sail on the waterway any power-driven model boat.”Camping82 “No person shall without the consent of BW erect, occupy or use a tent, caravan, camper van or other similar structure for the purpose of camping on the towpath or bank of, or any other land forming part of, a waterway.”And then there is a real classic (88) entitled “Obstruction of BW’s employees, offensive language, behaviour etc”. It’s the comment that gets to me: “It is not possible to include a Byelaw that addresses offensive behaviour etc towards members of the public (as opposed to a BW officer/servant) as this is a general criminal law issue and outside the scope of the byelaw enabling powers.”Maybe they’re right? They can’t make it an offence for BW to be rude to the public, but they can make it an offence for the public to be rude to them!Any way, I hope that all the above answers the question more specifically. There is going to be nothing conceivable that you might wish to do on or near the waterways that you will be able to do unless you have paid BW to give you their written consent.If you think that such a state of affairs is as ghastly a thought as I do, then you need to muster all the support you can to petition Parliament to listen to the wisdom of the House of Lords Select Committee Report, and remove the offensive amendment.

Nigel Moore ● 5131d

Simply put George, the changeover to third sector status with the amendment in place means that the new body will have all the powers of a public body to create their own “secondary legislation” without the oversight and critiquing with public scrutiny that primary legislation gets. In other words, they can write their own rule book. That could cover every aspect of the canals and adjacent property, covering all users of the towpath and riparian owners and businesses.Many things they have done in the past anyway, purely by bluff, and bullying those who don’t know better &/or couldn’t afford to fight them.Foe example, when Frasier Timber was Albion, BW tried to hit them for thousands of pounds of annual “permit” charges to retain the overhang roof of their wharf [akin to the warehouses near the railway bridge]. They had and have no right to levy any such charge, but got away with it simply because Albion weren’t prepared to enter into the threatened High Court battle. To avoid the charge Albion simply chopped the overhang off – and it has been an eyesore ever since. If Albion had been prepared to fight, the present laws would have been in their favour. A non-accountable law-making BW could arrange that the law DID specifically provide for such charges. Looking through some of the Board minutes and reading through internal memos encouraging the finding of new sources of revenue reveals the sort of possibilities that they might try on by bluff now, but could legislate for in the future. It could very well affect the type, and eventual cost, of all waterfront property and place limits on use of the waterside, making many uses subject to licences of all description.Much of what they do is illegal, and some of what they do is at the very least challengeable in law [some actions in fact have already been successfully challenged in court, when “big boys” get involved], so they are constantly seeking new legislation to cover those ‘weak’ areas and to give them greater powers. Their ability to do so at the moment is at least constrained by the demands on public bodies of being subjected to public scrutiny; without that safeguard they would be able to criminalise large sectors of the population including all those living near a canal, not just boating users.Frankly, I am disinclined to give specific examples of what they could do to charge for non-boater recreational users of the waterway facilities if they once had power to legislate for what they felt was needed – I don’t want to give them ideas!I’ve probably let this become too long-winded; I suppose I could summarise the potential effects as being, simply, inevitable additional costs and constraints.

Nigel Moore ● 5131d