British Marine Federation Response to Statement from British Waterways on Competition Issues

[Gary Peacock]

Dear Member,

 

 

 

Please find below a letter regarding the British Marine Federation's response to British Waterways.

 

 

 

If you have any questions please contact the team at BMF on 01784 473377.

 

 

 

Regards

 

 

 

John Clarke

 

BMF Chief Executive

 

 

 

 

 

Thursday 10th November 2005

 

British Marine Federation Response to Statement from British Waterways on Competition Issues

 

 

 

 

 

British Waterways wrote to a range of stakeholders on 9 November with an update on their discussion with the British Marine Federation (BMF) on competition issues in the marinas and moorings market.

 

 

 

 

 

BMF's aim has been, and remains, to be able to reassure our members that BW has appropriate procedures to give confidence that a level playing field is being maintained in the marinas and moorings market.

 

 

 

 

 

This statement is an initial response from the BMF to British Waterways. A further detailed response to the individual points that BW raise will be provided at a later stage.

 

British Waterways is a public corporation and is under a duty to comply fully with competition law in its commercial activity. In 2000 BW started acquiring marinas and competing against the private sector operators in the marinas and moorings market, many of whom are tenants of BW. At that point the Waterways Minister, in response to the BMF concern, acknowledged that there were competition issues and that BW needed to be able to show it was operating fairly in this market.

 

 

 

 

 

Following a range of complaints concerning unfair competition in the marinas and moorings market, BMF raised this issue with BW senior management in May 2003 and has since then sought to understand how BW ensures that it is acting in compliance with competition law.

 

 

 

 

 

The main point of contention concerns conflict of interest. Despite two and a half years of discussions, BMF sharing its leading competition Counsel's opinion with BW and questions posed by BMF in July and November 2004, BW has still not explained in detail exactly what it has done in practice on the ground to ensure and maintain a level playing field in the marinas and moorings market, comply with competition law and prevent the potential for conflicts of interest.

 

 

 

 

 

In recent months both sides have sought to bring the matter to a mutually satisfactory conclusion:

 

 

 

 

 

- The first step was to approach the OFT. The OFT considered the BW request too vague to help, but left the option to provide a more focused request or return should an impasse be reached. BW has made it clear that they view the OFT route as finished. That is not the BMF nor, it would appear, the OFT view.

 

 

 

 

 

- BMF proposed non binding mediation with an independent mediator to BW. We were very disappointed that BW did not consider this route satisfactory. It could have resolved outstanding difficulties quickly and amicably.

 

 

 

 

- BW responded with their wish to conduct an expert review of BW's practices and procedures. BMF would like to see an independent review carried out by an independent third party agreed by both sides, paid for by both sides, operating under terms of reference agreed by both sides and under a view of the relevant law as set out by an independent legal adviser. Oxera is a highly reputable economics consultancy, but they are not legally qualified, and a clear set of legal guidelines is required if the review is to be soundly based.

 

 

 

 

A difference of opinion on a narrow point of law has emerged, which we believe could have been easily resolved by an independent legal expert.

 

 

 

 

 

- Code of Practice: This is a recent suggestion from BW and will take a considerable amount of preparatory work and time to get right. BMF would support the development of a Code of Practice if it was developed by a truly independent body.

 

 

 

 

BW has been active in the market for five years already. This poses significant questions as to why BW has been allowed to operate for so long in competition with the private sector without these procedures fully in place to ensure that there has been a level playing field and competition law has not been breached.

 

In conclusion, we have continued discussions with BW for over two years, have willingly shared our legal advice, taken every opportunity to explain the concerns of our members, and conducted this as far as possible out of the public eye to give BW the opportunity to demonstrate that as the network operator, it has implemented all the necessary internal mechanisms to ensure that it operates in the downstream marina and moorings market fairly and on an equal footing in every respect.

 

 

 

 

It has become increasingly apparent that BW is unwilling to answer fully the questions that we have asked and will only move forward on its terms. We have sought every avenue of constructive dialogue and concluded that to go on using resources against this background can no longer be justified as we will gain nothing for our members from continuing.

 

 

We welcome the personal interest that the newly appointed Chairman of BW has taken in this matter and we very much hope that he will avail himself of the invitation that we have recently made to visit BMF offices to receive a briefing on the industry perspective in these matters.

 

 

 

 

 

 

 

John Clarke

 

Chief Executive, BMF

[Eugene Baston]

Dear All

 

To enable some sense to be made of the posting above, the letter to all BW trade customers is shown below, which promptedthe response seen above. I would like to draw your specific attention to two statements made above.

 

1) "BW has still not explained in detail..." (paragraph six)

 

Please refer to the letter posted below, which has already set out in detail the range of checks and balances put in place since concerns were first raised with BW. Please note this letter was issued before the BMF response.

 

2) "Following a range of complaints concerning unfair competition in the marinas and moorings market...." (paragraph five)

 

The BMF has been invited on innumerable occasions to make these complaints known to BW, but has failed to do so. BW has a well publicised Complaints Procedure which has recently been commended for its transparency. The Waterways Ombudsman also provide a service of redress which is entirely independent from BW.

 

The BW letter now follows. Best wishes, Eugene.

 

 

9 November 2005

MARINA POLICY – UPDATE ON DISCUSSIONS WITH BRITISH MARINE FEDERATION

 

I am writing to you because I think it is right that you are updated on developments on this

very important subject.

 

At British Waterways (BW), we welcomed the recent dialogue between non-executive

directors of both organisations as a means of increasing our mutual understanding about

trading in the marina market. In the light of BMF’s decision not to continue this dialogue, we

felt it important to provide this briefing so that our stakeholders can understand the situation

and the full range of measures being taken to ensure BW trades fairly in the marina market.

We welcome BMF’s unequivocal statements that the Federation is not seeking to prevent

BW from competing in the marinas and moorings markets. We also believe that BMF

accepts our absolute commitment to trade fairly.

 

However, at the last meeting between non-executive directors, BMF presented a

memorandum that effectively cancelled all further meetings and reversed its previous

decision to participate in an external review of BW’s practices and procedures (see Item 12

below and Annex A). In so doing, BMF made it clear its continued involvement was

conditional on BW’s agreement with the BMF legal viewpoint. BW has its own Counsel's

opinion that fundamentally disagrees with the Counsel’s opinion procured by BMF. We are

very comfortable with our legal advice and could not therefore agree to BMF’s demands.

 

It is unfortunate that we cannot agree on the legal issues, but this is by no means unusual,

given the complexity of the law and the different perspectives of the two organisations. BW

believes that we should not allow this difference to come between us as we interact

constructively on many issues of common interest.

 

As with any large organisation we need to have in place a range of checks and balances that

will alert us or our stakeholders to any unfair or potentially unfair trading activities. These

practices and procedures are already in place and we would have preferred to continue joint

meetings with BMF to develop them further. However the recent BMF memorandum makes

it clear this is no longer possible. BW will therefore continue with its plans for an external

review of those practices and procedures and the development of a Code of Practice that

consolidates and develops the checks and balances BW already has in place.

 

The process and procedures that are already or are soon to be put in place are listed below.

Further background information on each measure is given in the attached Annex A.

 

1. BWML established as a separate legal entity

2. BW Marinas Protocol

· A copy of the Protocol has been provided to BMF.

3. Oxera* Review of BW's mooring prices process

4. PriceWaterhouse Coopers Audit

· A copy of the report prepared by PWC has been provided to BMF and is

available on our website.

5. Fair Trading Group

· The FTG terms of reference have been given to BMF.

6. Internal Audit

7. BW invitation to Office of Fair Trading to consider adequacy of BW procedures

· BMF have copies of the correspondence.

8. BW Legal Advice

· BMF have copies of our Counsel's opinion.

9. New Marinas Unit

10. Marina Opportunities Guide

· This is being prepared with help and assistance from The Yacht Harbour

Association. BMF have seen all current drafts.

11. Ombudsman Scheme

· BMF have a copy of the Internal Complaints Procedure and the details of the

Waterways Ombudsman Scheme.

12. Expert Review of BW's practices and procedures

· BMF have been given a copy of the brief to Oxera*.

13. Code of Practice.

 

I have asked BMF to bring to my attention any instances of alleged unfair trading so that we

can investigate and take action as necessary.

Although BMF has decided there is nothing to be gained from further non-executive

dialogue, I and my team want to continue a close working relationship with BMF on all issues

of mutual interest.

 

Yours sincerely,

ROBIN EVANS

Chief Executive

Encl:

*

Oxera is Europe’s foremost independent economics consultancy. Established for over 22 years, it

has built a reputation for providing critical economic insight to an international list of clients including

governments, regulators and major companies. More information can be found at www.oxera.com

 

ANNEX A

BRITISH WATERWAYS

PROCESSES & PROCEDURES TO ENSURE FAIR TRADING

IN MOORINGS & MARINAS

 

1. BWML established as a separate legal entity

Creating a separate company ensures that there is complete transparency with

regard to any transfer of funds or resource from BW into BWML. BWML publishes its

own Annual Report & Accounts so there is transparency in its financial structure and

performance.

This ensures there can be no subsidy of BWML by public funds. This was an early

concern of BMF and its members.

 

2. BW Marinas Protocol

BW produced and published a protocol that sets out how BW would interact with

independent marina operators (and prospective operators) including BWML.

Essentially this publicly commits BW to treating BWML in just the same way as any

other third party marina operator.

A copy of the Protocol has been provided to BMF.

 

3. Oxera Review of BW's moorings and pricing mechanisms

Oxera investigated and reported on BW's pricing methodologies for its on-line

moorings, and confirmed such methodology was compliant with competition

obligations.

 

4. PriceWaterhouse Coopers Audit

To provide an independent, transparent and public scrutiny of BW's actual day to day

operations, we instructed Pricewaterhouse Coopers ('PWC' - the Government

appointed auditors of BW) to advise whether BW were conforming to and operating

under the procedures set out in the protocol. The report of their enquiry confirmed

that we were conforming to and operating under the procedures set out in the

protocol.

A copy of the report prepared by PWC has been provided to BMF and is available on

our website.

 

5. Fair Trading Group

The BW Board is appointed by the Secretary of State and comprises entirely of nonexecutive

directors. The Board takes its governance role very seriously and is

properly compliant with the Combined Code on Corporate Governance (the code of

governance applicable to all public companies quoted on the Stock Exchange).

The Fair Trading Group meets formally 6 times per annum but commissions its own

reports and enquiries on continuing basis using independent advisors, the internal

audit function and by direct dialogue with the Executive. In this way, there is a

continual scrutiny of BW and BWML activities by publicly appointed Non-Executive

Directors.

 

The Board created a Fair Trading Group to provide on-going monitoring of all BW

business activities to ensure fair trading compliance. The FTG comprises 2 nonexecutive

Directors who scrutinise the activities of the executive and reports back to

into the Audit Committee (or direct to the Board when appropriate).

The FTG terms of reference have been given to BMF.

 

6. Internal Audit

Internal Audit reports directly into the Audit Committee not to the Executive. Internal

Audit has a programme of specific audits and a roving brief to investigate and

monitor the activities of BW and BWML to ensure compliance with the Marina

Protocol and Fair Trading generally.

 

7. BW invitation to Office of Fair Trading to consider adequacy of BW procedures

We invited the Office of Fair Trading to review our fair trading processes and

procedures to ensure they were fully compliant with the law. The Office of Fair

Trading had already had discussions with Defra and BMF and concluded they did not

want to carry out such a review.

 

8. BW Legal Advice

BW has, in addition to its internal legal advice, received competition law advice from

two leading city firms and two leading counsel, including one of the most eminent

lawyers in the country. That advice contradicts the propositions put forward by BMF

counsel about conflicts of interest and BW's inability to trade fairly. BW is very

comfortable with the advice it has received.

 

9. New Marinas Unit

We have created a New Marinas Unit to:

· reduce the number of people dealing with third party sensitive commercial

information; all potential marina operator business (for marinas of over 50

berths) will be handled by a small core team under the direction of an

executive director (not the Commercial Director)

· operate and act as custodians of standard procedures for dealing with marina

businesses

· facilitate and ensure that where waterway units deal with smaller marina

businesses, standard procedures are followed.

 

10. Marina Opportunities Guide

To encourage increased private sector investment in marinas and moorings on the

network, BW is preparing this guide. It will identify where we consider there is

greatest opportunity for investment and commit BW to a clear process of appraising

proposals and agreeing terms in accordance with the protocol.

This is being prepared with help and assistance from The Yacht Harbour Association.

BMF have seen all current drafts.

 

11. Ombudsman Scheme

BW's Internal Complaints Procedure and the Waterways Ombudsman Scheme are

open to any complaint about any activity BW is engaged in. This includes complaints

about non-compliance with the Marina Protocol.

The Waterways Ombudsman is independent of BW and was appointed by a

Committee that includes user and marine industry representatives.

Any competitor in the marinas and moorings market may make use of the

Ombudsman Scheme provided their turnover is less than £1 million (and without any

limitation if their complaint concerns non-compliance with the Marina Protocol).

BW has committed itself to implement any recommendation or finding made by the

Ombudsman. This is a significant commitment and not one that many (if any) other

organisations have made.

BMF have a copy of the Internal Complaints Procedure and details of the Waterways

Ombudsman Scheme.

 

12. Expert Review of BW's practices and procedures

We intend to appoint competition experts Oxera to undertake a comprehensive

review of the management of BW's fair trading obligations with regard to its mooring

and marina activity. The review will specifically address the issues raised by BMF.

Indeed we have asked Oxera to meet with BMF so they can fully understand and

then consider the issues raised by BMF.

Oxera are leading economic consultants on competition issues in the UK and

worldwide, regularly advising governments. We are using them because of their

acknowledged expertise on competition issues.

BMF have been given a copy of the brief to Oxera.

 

13. Code of Practice

BW are currently bringing together all the relevant policies, practices and procedures

in a Code of Practice that will be issued to all staff involved in marina and moorings

activities. Its implementation will be monitored by Internal Audit and the FTG.

[Gary Peacock]

The saga continues

 

OPEN LETTER TO MEMBERS OF THE BRITISH MARINE FEDERATION

24 November 2005

 

Dear Member,

 

Response from British Marine Federation to British Waterways Statements on Marina and Moorings Policy

 

Background

 

The BMF regrets the need to conduct this debate with British Waterways in public.

 

For the last 2 ½ years the BMF has endeavoured to engage in a constructive dialogue with BW on behalf of its members, most of whom are small businesses, with the aim of seeking assurances that BW is participating in the marinas and moorings market fairly and on an equal footing with private operators. The dialogue was prompted by the concerns of BMF members when, in 2000, BW as navigational authority and waterways network operator, started acquiring marinas and competing directly against private operators. The Waterways Minister at the time drew attention to the need to deal with issues of fair competition.

 

BW recently wrote to stakeholders on 9 November with an update on those discussions, which listed a series of processes and procedures, which it said were either in place or in the course of being implemented to ensure fair trading in moorings and marinas. BMF responded with a brief statement on 11 November but said that it will issue a fuller response to BW's document. This fuller response is set out below.

 

Summary of BMF's Views on the Negotiations

 

BMF would like to be able to reassure its members that BW is competing fairly in the marinas and moorings market. We are unable to do so.

 

As a public corporation, competition law requires that BW must have in place all of the detailed processes and procedures to ensure that they are competing fairly.

 

BW has taken some steps to achieve this. However, many of the steps that have been taken are either deficient or unsatisfactory and as a whole they do not deal with the problem. BW has still not yet been willing or able to lay out in detail how it ensures in practice that it is competing fairly five years on from when it first started actively competing in the market.

 

BW has lost the confidence of many private sector operators, some of whom are afraid that their future dealings with BW will be prejudiced if they make a complaint. However, complaint or not BW still has to have effective procedures in place to prevent unfair competition.

 

Given the failure of BW to respond adequately to restore confidence, a truly independent body needs to be involved. But every time BMF has recommended that a truly independent third party is involved to resolve the dispute, BW has refused to accept this.

 

In particular, BMF proposed without prejudice non-binding mediation with an independent mediator. BW rejected it.

 

BMF proposed that OXERA be jointly commissioned by both BMF and BW under jointly agreed terms of reference and work to a legal framework set out by an independent legal adviser. BW rejected this and has appointed OXERA on its own.

 

BMF proposes:-

· A without prejudice mediation between BW, BMF and DEFRA to resolve the differences between BW and BMF amicably.

· BW's acceptance that its Code of Practice be drawn up by an independent third party with advice from DEFRA, the OFT and the Waterways Ombudsman and that this Code of Practice be binding on BW.

 

BMF considers this proposal has an excellent prospect of resolving this issue and enabling BW and BMF to work together to achieve their common goal of growing the inland waterways and its businesses.

 

Response to British Waterways' Statement of 9 November

 

1. BWML established as a separate entity (1 January 2004):

 

a. BW created BWML on its own terms and did not take account of the real concerns of the private sector. As evidence for this, BWML started trading on 1 January 2004, three months before BW published the results of the consultation about the rules under which it should operate (the BW Marinas Protocol - see below).

 

b. BW has failed to achieve true corporate separation of BWML from BW as James Froomberg (BW's Commercial Director and the BWML Chairman) and Ian White (a senior BW employee and a Director of BWML) occupy positions in both entities. As a consequence of the two points above and others, private sector operators do not have confidence that BWML is truly separate from BW. BW has not attempted to explain how potential and actual conflict of interest is dealt with.

 

2. BW Marinas Protocol (September 2003):

 

a. BMF worked with BW to develop this Protocol. At the time that BW considered the Protocol to be finalised in August 2003, BMF wrote to BW identifying a number of areas where it was deficient. We consider that BW failed to take properly into account the objections BMF made to the draft Protocol. BMF has therefore always considered this Protocol to be fundamentally flawed. Our response to the consultation was based on advice from a leading competition QC.

 

b. The Protocol is a vague and general statement of principle, which is no substitute for specific and concrete measures being in place that will actually affect BW's behaviour on the ground.

 

c. The Protocol only applies to a select group of marinas. It does not apply to BW's other marinas or moorings operations.

 

d. The Protocol starts from a presumption, possibly incorrect, that marinas already acquired by BW were acquired on a fair and transparent basis as against commercial opportunities for private operators to compete for them on an open and fair basis.

 

e. The Report BW published in April 2004 on the results of its 'consultation' on the Protocol failed to reflect the serious concerns that had been raised about the Protocol. BWML's operations are meant to be governed by the Protocol, but the company had already been trading since January 2004.

 

3. Oxera review of BW's moorings and pricing mechanisms (2004)

 

a. This report found that BW was potentially 'dominant' in certain geographical moorings markets. Subsequently, BW appears to be disputing its dominance.

 

b. BW's moorings are not included under the Marinas Protocol and are not within BWML, which means that major concerns remain over lack of separation, conflict of interest and inappropriate use of information.

 

4. PriceWaterhouseCooper Audit (March 2005)

 

a. PWC defines the purpose of the Report as 'to undertake a review of controls and procedures that BW has put in place to comply with the Marina Protocol and make recommendations on where it needs to enhance its controls or procedures to comply.' Thus PWC is only assessing BW's compliance with the Marina Protocol. Compliance with the Protocol is of limited value as the Protocol itself is considered to be fundamentally flawed as stated above. The Protocol does deal to an extent with the issue of cross-subsidy, but it fails to address properly the issue of potential conflict of interest. Compliance with the Protocol does not therefore provide reassurance of compliance with competition law.

 

b. PWC was entirely reliant on information provided to them by BW and they were reporting on an approach and methodology agreed with BW. The Engagement Letter to the Report has not been made publicly available.

 

c. BMF was permitted to provide some information to PWC, but not to meet the consultants doing the work.

 

5. Fair Trading Group (Formed in 2004)

 

a. BMF initially welcomed the creation of this Group in the latter half of 2004. The lack of one totally independent expert on the Group is seen as a shortcoming in the accountability and governance of a public corporation.

 

b. BMF's dealings with the newly established Fair Trading Group has highlighted the danger that this Group could become a defence mechanism for BW rather than a pro-active method of ensuring compliance that gains industry confidence.

 

6. Internal Audit

 

a. BW's statement says that this process exists, but BMF does not know the nature of the 'roving brief' or the terms of reference and we would need to be provided with considerably more information in order to have any confidence that it is a useful mechanism to monitor compliance. It is unlikely, however, that internal audit of BW by BW will be enough to restore the long term confidence of private sector operators.

 

7. BW Invitation to OFT to consider adequacy of BW's procedures (2005)

 

a. BW wrote to the OFT in 2005 following an initial positive meeting that BMF had with the OFT. BW's letter was considered to be too vague for the OFT to assist.

 

b. BMF held an exploratory meeting with the OFT in February 2005. OFT Officials took the concerns expressed on behalf of the waterside businesses seriously, and, together with other advice, encouraged us in the first instance to endeavour to resolve them directly with BW.

 

c. The OFT has stated to BMF that it would be pleased to help the parties if negotiations break down. They have broken down and so BMF would like to again invite BW to approach the OFT jointly for a full discussion of the measures BW need to put in place to ensure fair trading in every respect. BMF hopes that BW will agree to this joint approach.

 

8. BW Legal Advice

 

a. BW suggests that there is fundamental difference of opinion in respect of understanding of the law that cannot be reconciled. BMF has proposed that an independent legal adviser sets out an agreed legal framework, which could act as the basis for the OXERA study (see below). BW rejected this proposal. BMF has also proposed that independent mediation could be used to resolve this dispute. Again, BW has refused. These offers remain open and BMF hopes that BW will accept them.

 

b. BMF's legal advice from a leading competition QC (which was passed to BW in July 2004) clearly states that BW is potentially in breach of competition law. The legal advice obtained by BW in September 2005 differs, but both parties agree that BW should compete fairly in the marketplace. The key issue is what effective procedures BW needs to put in place to ensure that it is trading fairly.

 

 

9. New Marinas Unit (2005)

 

a. At this stage, it is difficult to ascertain the exact scope and function of this new Unit.

 

b. If it entails effective and properly monitored Chinese walls between BW and its marinas and moorings operations then it is what BMF has been pressing for for some time.

 

10. Marinas Opportunities Guide (2005)

 

a. BMF shares BW's desire to attract new investment to the waterways that will create new mooring facilities. The industry and BMF wants to work with BW in this area.

 

b. The BMF has endeavoured to help BW in the production of this Guide and has urged them to harness the knowledge and experience of private operators within the industry who are successful marina developers and operators. The BMF has facilitated this through its group association, The Yacht Harbour Association (TYHA). It is very important that any publication like this produced by BW (the public corporation) does not promote BWML to the detriment of private sector operators.

 

c. The BMF has concerns that BW has been focussed on completing the Guide in time for launch at the London Boat Show rather than concentrating on getting the content right.

 

d. The BMF has made it clear to BW that industry support for the Guide will be heavily dependent on BW transparently demonstrating fair competition in the marketplace.

 

11. Ombudsman Scheme

 

a. The Ombudsman will not decide points of law.

 

b. The Ombudsman is reactive rather than pro-active, so can only respond to fair trading violations of which a complainant becomes aware.

 

c. Some BMF members to date have not had positive experiences of dealing with BW's Internal Complaints Procedure, which has undermined confidence in the scheme. BMF does recognise that work is being done to gain greater confidence in the scheme.

 

 

12. OXERA's expert review of BW's practices and procedures (2005)

 

a. BW produced the draft Consultants brief in mid 2005 without any discussion with BMF. As stated above, BMF proposed that BMF and BW jointly commission OXERA under a legal framework that had been agreed by an independent legal adviser. BW has refused and has commissioned OXERA on its own.

 

b. BMF made it clear to BW that, because it is not OXERA's function to make findings of fact, OXERA must be provided with a detailed and comprehensive statement of all the fair trading measures that BW has in place and a transparent statement of exactly what mechanisms have been implemented.

 

c. BMF has also made it clear to BW that because OXERA are economists and not lawyers, the OXERA review must be conducted within the context of detailed instructions as to the principles of law that are to be applied. It was for this reason that BMF proposed that a jointly instructed legal adviser should be used.

 

d. BW has refused to conduct the OXERA review on anything other than their own terms. BMF has not refused to talk to OXERA.

 

13. Code of Practice

 

a. This idea, first mentioned by BW in September 2005, appears to envisage a summary of all other relevant policies, practices and procedures to be issued to staff.

 

b. In order to be of value such a document would need to include programs of education and training to ensure staff are familiar with procedures, opportunities for personnel to obtain advice on fair trading when their activities give rise to such an issue, defined chains of responsibility within each department of BW to ensure activities are conducted in a compliant manner, mechanisms of monitoring compliance and mechanisms to discipline non-compliance.

 

c. Those private sector companies with whom BW are competing must ask why has such a Code of Practice not been in place since 2000 when BW started to trade in direct competition with private operators in this market.

 

d. BMF proposes that the Code of Practice be drawn up not by BW on its own but by an independent third party chosen with the advice of DEFRA and the OFT in whom all parties can have confidence. The Code of Practice should be binding on BW. BMF hopes that BW will accept this proposal.

 

Response to BW Statement of 21 November 2005

 

BW's statement of 21 November 2005 misses the fundamental point.

 

BW has lost the confidence and trust of many private sector operators. BW appears to accept that some are concerned that if they raise complaints with BW that this may prejudice their future dealings they have with BW.

 

Mediation and independent advice on a new Code of Conduct for BW that should be independently enforced must now take the place of BW's self regulation, which after five years has failed to provide a clear and transparent detailed explanation of procedures.

That is the way to resolve this dispute and ensure that BMF and BW can both focus on building and investing in the inland waterways for the future.

 

BMF proposes:-

· A without prejudice mediation between BW, BMF and DEFRA to resolve the differences between BW and BMF amicably; together with

· BW's acceptance that its Code of Practice be drawn up by an independent third party with advice from DEFRA, the OFT and the Waterways Ombudsman and that this Code of Practice be binding on BW.

 

BMF considers this proposal has an excellent prospect of resolving this issue and enabling BW and BMF to work together to achieve their common goal of growing the inland waterways and its businesses.

 

 

Yours sincerely,

 

 

 

John Clarke,

Chief Executive, BMF

[GRPCruiserman]

WITHOUT PREDJUDICE

 

If Britsh Waterways Marinas has been created as a seperate entity from British Waterways, surely the assetts of Britsh Waterways Marinas were simply transfered from British Waterways and so the organisation has been set up using publicly owned assetts and not private funding.

 

This is certainly the case as proven at Galgate Marina where a new sanitary station was installed which had been purchased (prefab) prior to the creation of British Waterways Marinas.

 

An assurance was given at the time that the previously installed prefab sanitary station at Galgate would then be moved to Glasson Dock where at some expense a base had already been installed. This facility would encourage visits to Glasson Dock by boaters and is a facility that is needed at that location.

 

After the creation of British Waterways Marinas, it would seem that the Sanitary Station is now owned by British Waterways Marinas and so cannot be moved. We now have the bizarre situation that we have two, fully operational, sanitary stations within a few hundred yards of each other, and none at Glasson Dock where there is an unused base. The locks have been changed on the older sanitary station and it is now for the exclusive use of the marina moorers.

 

Incidentaly, the showers at White Bear Marina are also now only accessable by moorers at that location by way of a numeric code, so a facility has been lost at that location to others.

 

Does this mean that money that would have been used by British Waterways for the maintenance of the canals etc, has now been transfered by way of assetts to British Waterways Marinas which is of no benefit to British Waterways or their licence holders, or is their some financial arrangement whereby the property is leased or rented to British Waterways Marinas by British Waterways.

 

If the NHS were to build a new hospital then transfer another hospital that originally had been designated for another, public, use, to a newly formed company called National Health Hospitals, then denied the facility to all accept those who could afford to pay for the hospital, ie a private hospital, do you think the local population would be happy?

 

Perhaps I am totally wrong about my facts, and if that is the case then I apologise, but I would ask whether this is the case, and whether this has any bearing on what is being discussed here?

 

Apologies to all concerned if I am incorrect. I await BW's reply.