Waterways By-Laws

[Mick and Maggie]

I have a question about by-law's, sometimes also spelled bylaw, by law or even byelaw.

 

In the run up to the transfer of undertakings that created CaRT. I seem to remember that there was some talk of CaRT being granted rights to create some form of 'by-laws' that would be applicable to the waterways under their care. A bit like local councils and on street parking. Now, I'm not sure if the minster kicked the whole idea into the long grass. Or if such a change will come about when the franchise comes up for review in the next few years.

 

So will CaRT have the wherewithal to create 'by-laws' and if so when. Imagine if things are a bit flaky now, how they might be in the future.

[magpie patrick]

From the articles

 

 

 

 

Powers

 

To further its objects the Trust may:

3.4 do any of the things that the British Waterways Board had power to do at the date of

incorporation of the Trust (12 October 2011) that are conducive or incidental to the

attainment or furtherance of the objects...

 

So the answer would appear to be yes:

 

There was a representation to Parliament regarding this but it was based on the misapprehension that the canals were going to be transferred to a private company not a charity. One might say there isn't much difference in how these alternative management models behave though.

Edited August 20, 2013 by magpie patrick

[howardang]

I have a question about by-law's, sometimes also spelled bylaw, by law or even byelaw.

 

In the run up to the transfer of undertakings that created CaRT. I seem to remember that there was some talk of CaRT being granted rights to create some form of 'by-laws' that would be applicable to the waterways under their care. A bit like local councils and on street parking. Now, I'm not sure if the minster kicked the whole idea into the long grass. Or if such a change will come about when the franchise comes up for review in the next few years.

 

So will CaRT have the wherewithal to create 'by-laws' and if so when. Imagine if things are a bit flaky now, how they might be in the future.

During the transtion from BW to CRT. I am sure that CRT were given the authority to use the exsting bye laws, but I am aware that BW were in the process of revising and updating them at the time of handover, and I'm not sure whether this process continues or has been put on the back burner for now.

 

Howard

[NigelMoore]

The Transitional Order creating the Canal And River Trust specifically grants to the new Charity [exceptionally, and contrary to House of Lords advice] the power to draft secondary legislation [which includes the power to draft byelaws].

 

It may be of some comfort to anyone concerned about private bodies of whatever ‘status’ wielding such powers, that any drafted byelaws have first to be approved by the Secretary of State following consultation and public engagement. The last word, in other words, rests with Parliament after public input.

 

It is small comfort, because so few either learn of, or having learnt are disinclined to contribute, to the process.

 

The new draft byelaws [not howardang's mere revision & updating] that Johnson was paid so much in bonuses to produce for BW [despite, on his own admission, knowing sod all about their drafting by others under him], were produced and published in 2010 but have been kept on the ‘back burner’, because the cost of the process of getting them passed will be considerable.

 

CART are fully aware of the hurdles they would have to overcome in justifying the draft to Parliament, they having already attempted and failed to get many of them introduced into the 1995 Act. The same Parliamentary objections then, may well be raised again, with the added evidence that what Parliament then feared has been more than amply demonstrated as fully justified.

 

The range and extent of all these new projected criminal offences is quite extreme, but CART are confident that it is all unnecessary anyway, because [by their argument] they could simply make them a condition of boat licences under s.43 of the ’62 Act. The only drawback for them is they could not thereby also criminalise boaters for failure to comply with their rules, on top of financially penalising them.

 

CART are, of course, empowered by all existing BW legislation so are entitled, as howardang suspects, to enforce the previous and still existing BW byelaws.

 

Check out the draft new ones in order to be forearmed [or warned].

 

http://noproblem.org.uk/blog/links/draftbyelaws.pdf

 

[Mick and Maggie]

Check out the draft new ones in order to be forearmed [or warned].

 

http://noproblem.org.uk/blog/links/draftbyelaws.pdf

 

Many thanks to Patrick, Howard and Nigel. It looks like a bit of late night reading is on the cards. It looks on first reading, like the criminalising aspect of the by-laws is very heavy handed and certainly not proportionate.

[Pluto]

You can download copies of some of the old L&LC byelaws from my web pages: http://www.mikeclarke.myzen.co.uk/Downloads.html

[mayalld]

The Transitional Order creating the Canal And River Trust specifically grants to the new Charity [exceptionally, and contrary to House of Lords advice] the power to draft secondary legislation [which includes the power to draft byelaws].

 

It may be of some comfort to anyone concerned about private bodies of whatever ‘status’ wielding such powers, that any drafted byelaws have first to be approved by the Secretary of State following consultation and public engagement. The last word, in other words, rests with Parliament after public input.

 

It is small comfort, because so few either learn of, or having learnt are disinclined to contribute, to the process.

 

The new draft byelaws [not howardang's mere revision & updating] that Johnson was paid so much in bonuses to produce for BW [despite, on his own admission, knowing sod all about their drafting by others under him], were produced and published in 2010 but have been kept on the ‘back burner’, because the cost of the process of getting them passed will be considerable.

 

CART are fully aware of the hurdles they would have to overcome in justifying the draft to Parliament, they having already attempted and failed to get many of them introduced into the 1995 Act. The same Parliamentary objections then, may well be raised again, with the added evidence that what Parliament then feared has been more than amply demonstrated as fully justified.

 

The range and extent of all these new projected criminal offences is quite extreme, but CART are confident that it is all unnecessary anyway, because [by their argument] they could simply make them a condition of boat licences under s.43 of the ’62 Act. The only drawback for them is they could not thereby also criminalise boaters for failure to comply with their rules, on top of financially penalising them.

 

CART are, of course, empowered by all existing BW legislation so are entitled, as howardang suspects, to enforce the previous and still existing BW byelaws.

 

Check out the draft new ones in order to be forearmed [or warned].

 

http://noproblem.org.uk/blog/links/draftbyelaws.pdf

 

 

Given that many of the Byelaws are simply a restating or updating of the old byelaws, perhaps you would care to elaborate upon which NEW provisions criminalise behaviour that ought not to be criminalised.

[NigelMoore]

 

Given that many of the Byelaws are simply a restating or updating of the old byelaws, perhaps you would care to elaborate upon which NEW provisions criminalise behaviour that ought not to be criminalised.

 

All violations of the byelaws are criminal offences; guilty parties being liable on summary conviction to fines BW hoped would be set at the £1,000 level.

 

I should clarify for others that many of the new byelaws sound good to me – some of the control measures are desirable in my opinion; but that is not the same as approving a totalitarian social situation that demands the carrying around of purchased permits for the most trivial of pursuits, nor is it the same as approving the criminalisation of those pursuits absent possession of such a Consent.

 

To clarify that – Byelaw 7 provides that any person wishing to engage in the activities requiring consent under a byelaw will have to pay whatever BW may determine, and must have that written consent to hand while performing any act to which it refers so as to be able to produce it on demand to any “authorised officer”.

 

What activities are subject to this requirement under the “NEW provisions”? You can read them for yourself. But random examples [and I expect some will be heartily approved, criminal sanctions and all!] –

 

Walking dogs on the towpath; cycling on the towpath; using any part of the waterways as a location for commercial filming or video recording; organising walks or boat gatherings; training for competitive rowing; ice skating; operating powered model boats or aircraft; etc, etc.

 

The classic for me is (88): using offensive language to a BW employee; the comment column suggests that their powers can’t be extended to render it an offence for BW employees to be rude to the public, they can only make it an offence for the public to be rude to them!

 

Then there are the mooring controls. I think they are desirable to a point; so did Parliament when these identical provisions were sought to be introduced in the 1990 Bill - the relevant draft byelaws are cut-&-pasted from the 1990 Bill, word for word. Parliament had no objection to most of those provisions per se, but they vehemently opposed making non-compliance a criminal offence – and that’s why they were eventually withdrawn; BW would not back down from their desire to criminalise such offences and were prepared to wait and try again another time – hence their re-appearance in the draft byelaws.

 

So those are the “NEW provisions”, which latter I agree with the Parliament of the ‘90’s ought not to be made criminal offences.

 

edited to put answered post back on top.

Edited August 21, 2013 by NigelMoore

[Allan(nb Albert)]

Further to the excellent answers given, CaRT say that the draft document which is now in the public domain has been revised. However, they have refused to divulge any revisions claiming two exemptions under the Freedom of Information Act. (legal professional privilege & information intended for future publication).

My understanding was that CaRT told 'someone' that they intended to introduce new Byelaws after EA had been given to them.

 

However, they might reconsider this now!

 

 

[NigelMoore]

That rumour would certainly make good sense. The EA waters are themselves subject to a raft of differing byelaws, and if those navigations are to be incorporated into CART then it would be obviously desirable to unify everything at the one time, instead of having to repeat the exercise later on.

 

A few more years won’t make any difference after all. They wouldn’t have to wait before reaping the expected income from licensing airspace for model aircraft and imposing licences on model boats, from licensing dog walkers, horse riders and cyclists, from charging for organising casual boat trips with 2 or more boats or taking a group of walkers on a towpath ramble – according to them and mayalld they can do that anytime they choose; the only benefit of having the powers enshrined in byelaws is to make criminals out of non-payers.

 

From the phrasing of his question, it appears that mayalld can't see any activities in the rather long list of offences "that ought not to be criminalised". Understandable perhaps; as I said earlier, I am confident that many would like to see [for example] dog walkers, fishermen and cyclists classified as criminals if they haven't paid up for their particular activity license.

 

If CART think they have enforcement problems now, just imagine what they will face in future if their ambitions reach fruition! At least there will be no dearth of willing reportage of such suspects from the boating fraternity - but how to grade model boat licences? One expects that they would be taken home at night as a place where they might reasonably be kept and may lawfully be left, but could they be s.8'd for non-compliance? A few bedtime tears in the offing, and I can only presume that parents will have to bear the legal consequences of their children's infractions of the new rules, while the children will only have to suffer the seizure of their toys [hopefully after the same sort of 28 day grace period, but I see no provision for that in the unrevised draft].

Edited August 21, 2013 by NigelMoore

[NigelMoore]

I commented earlier on the NEW provisions regarding moorings, and since then looked up the original documentation to check my statement as to their being lifted verbatim from the 1990 Bill.

 

This had been a topic I raised with Mr Johnson in cross-examination in the High Court, and his denials were illuminating in the context of his veracity and/or worth.

 

From the official court transcripts [but my emphasis in bold]:

 

“. . . in the case of British Waterways because, like other statutory undertakers, whether public or private, it needed the power to make bye-laws, and arguably bye-laws are a form of secondary legislation. That is, in a sense, as far as it goes, and of course any bye-laws are always subject to ministerial approval.

Q Absolutely. Thank you, I just want to explain the background to this. The comments on this - are these your own or is this just general? Are these produced under you directly?

A Within the legal department that refers to me, and indeed I had some hand in it, yes.

 

 

[Johnson was paid, in bonuses above his salary, some £28,000 for having “had some hand in it”!!!!]

 

Q For your reassurance, Mr. Johnson, I am quite agreeing with the need for some such legislation. I would note that that this, I am rather sure it is 51 and 52, is actually lifted word for word from that which was drafted for the purposes of the 1990 Bill?

A I actually don’t think - again, my recollection is, no, we did not look at the 1990 Bill. I joined British Waterways long after that was passed and have never looked back to the earlier drafts of the Bill, but they are not unfamiliar provisions from a range of bye-laws provided by other navigation authorities. In fact, I can see that, for instance, in respect of 52 it refers to a bye-law for the River Ouse and Foss Navigation Bye-laws, which was a navigation that we acquired under secondary legislation, I couldn’t say that they go back specifically to the passage of the Bill that became the 1995 Act.

The fact is that the Byelaws differ from the Bill only in very minor alternative wordings [‘The Master’ for ‘Any person in charge’; ‘proper’ for ‘reasonable’ etc]; in some excised superfluous wording, and in additional sub-clauses tacked on to the previous version. But best to see and judge for yourselves -

Draft 1990 Bill:

 

Draft Canal Byelaws:

Directions as to mooring

 

51.

(1) The master of a vessel who is proposing to moor or who has moored the vessel in a waterway shall comply with any proper direction of an authorised officer as to -

( a ) the means by which the vessel is fastened or secured; and

( b ) the precise location in which the vessel is moored.

(2) Any person to whom a direction is given under paragraph (1) shall if necessary move the vessel in order to comply with he direction.

(3) A direction under paragraph (1) need not be in writing and may be given in any reasonable manner.

(4) Any direction given under paragraph (1) may be given for the purpose of :

( a ) health and safety considerations;

( b ) enabling other vessels to moor in an appropriate manner and ensuring best use of waterspace;

( c ) avoiding the restriction of works being carried out by BW;

( d ) moving vessels that have overstayed visitor moorings; or

( e ) tending to an emergency situation.

 

Prohibition or control of mooring

 

52.

No person shall moor or leave a vessel in contravention of a notice prominently displayed by BW in or beside any waterway –

( a ) prohibiting the mooring of vessels, as specified in the notice; or

( b ) making requirements as to the manner in which vessels are to be moored in the part of the waterway so specified and (without prejudice to the generality of the foregoing) the means by which vessels are to be fastened or secured; or

( c ) specifying the maximum period, hours of the day or night, or days of the week, during which mooring (whether of all vessels, or of vessels of a kind or kinds specified in the notice) is permitted or prohibited, or the period within which return to the mooring is prohibited, as the case may be.

Either Mr Johnson’s recollection was faulty, or something uncanny was going on; alternatively, the process of drawing up the draft was undertaken without his claimed oversight [and his bonus was therefore totally unearned]; the further, unthinkable [?] alternative of course, is that [as seems to be the case with the Patrol Officer's evidence] he was lying on oath in court.

 

Whichever, none of these explanations redound to his credit, so he scarcely had a case for suing KANDA for libel over being called ‘discredited’. [There were, of course, several comments by the judge in the sealed judgment which alone gave cause for KANDA’s observation.] Sensibly for once, the legal department has gone quiet on that threat of suicidal litigation.

 

The pertinence to the question of whether these new provisions ought to be made criminal offences, is that it was just these clauses which the Select Committee approved of, but which they would not agree to being made criminal offences. The transcript of that exchange I could post up, but don't just now have the time.

 

[NigelMoore]

There was a representation to Parliament regarding this but it was based on the misapprehension that the canals were going to be transferred to a private company not a charity.

 

A belated response – the ‘Articles’ quoted are those of the private limited company that operates the recognised charity. No misapprehension.

 

It was not just worried boaters concerned at the power to create subordinate legislation [which includes the power to create byelaws] being vested in a private company free of even loose governmental rein – the House of Lords very specifically and emphatically raised the issue in their Eleventh Report, on the Public Bodies Bill in 2011.

 

http://www.publications.parliament.uk/pa/ld201011/ldselect/lddelreg/108/10803.htm

 

British Waterways Board and the Environment Agency

 

20. The Minister's letter does not explain the rationale for Government amendment 99A on the revised eighth marshalled list. The amendment, expressed as a note to Schedule 5, appears to be intended as a substantive provision to the effect that, contrary to the general position under the Bill, functions of the British Waterways Board consisting of powers to make subordinate legislation, powers of forcible entry, search or seizure, powers to compel the giving of evidence and powers whose exercise will necessarily affect the liberty of an individual may all be transferred to a private sector person who does not otherwise exercise any public functions. If a transfer takes place to such a person, the Environment Agency's powers of a similar kind may also be transferred to that person. Especially in the absence of a convincing explanation, it is not appropriate for an existing power to make subordinate legislation to be transferable to another, unidentified, body. This renders the powers in clause 5 in relation to these bodies especially inappropriate. The Committee draws the attention of the House to amendment 99A.”

 

[My underlining, the Lords emphasis in bold]

 

The Lords there identified just the sort of fears felt by the 1993 Select Committee as to granting powers to the then existing management of BW. It is to the shame of the present government that these concerns were steamrollered over as they were.

[NigelMoore]

_{Have just been checking back on my comments re: Johnson and his extra bonuses for having had “some hand” in drafting the new byelaws of which he evinced so little knowledge.}

 

_{It was next to impossible extracting the relevant information as to what was paid out on the 2007/2008 bonus points schemes, but alternative sources provided the Remuneration Committee minutes for that year, from which I obtained the £28,000 figure for Johnson meeting his targets.}

 

 

_{What I’ve only just discovered [looking up another site’s publication of targets], is that he had a second bite at the same cherry! His targets for the following year also gained him bonus points for completing the task of redrafting the byelaws – how much extra he got for that is something those more able than I to extract the relevant minutes/accounts from the authority would have to check out.}

 

 

_{However much extra he got for having his minions complete the unfinished project for him, he will have done very nicely out of it.}

 

_{I just love the overall 2007/8 target to “provide excellent legal service and advice to BW”. Now that his legal advice for that year has been declared to be wrong, at an eventual minimum quarter million pound cost to BW/CART – what’s the bet he has not returned his bonus for that year to the CART coffers?}

 

 

 

_{The bonus scheme for executives, much criticised by the Monopolies & Mergers Commission Reports on BW, have been a source of some embarrassment to BW. I first got them from a website which was quickly forced by BW to shut down, and for a time they were only available on Wikileaks. Eventually BW gave up on the attempt to suppress them, and they are [relatively] freely available now.}

 

_{My initial interest in them arose because they provided at least one definitive answer to the question why BW first began their campaign against me, led by Mark Bensted [the then London Regional Manager]}

 

_{His targets for the year they illegally sectioned my boats [on Johnson’s “excellent legal advice”] included “Work with the Marketing and Communications Director to subdue criticism of BWL management by a small group of individuals.”}

 

 

_{Note the language: no hint of working towards resolving the criticisms, just a target of subduing the critical boaters! Impossible now to work out how much [if any] of his bonus for that year was apportioned to success on this point; one would hope none, because he failed entirely, not only with me but with all of the boaters thus targeted – but going by Johnson’s example, it would not surprise me to learn that Bensted got something for his unpleasant little efforts.}

[Allan(nb Albert)]

_{Have just been checking back on my comments re: Johnson and his extra bonuses for having had “some hand” in drafting the new byelaws of which he evinced so little knowledge.}

 

_{It was next to impossible extracting the relevant information as to what was paid out on the 2007/2008 bonus points schemes, but alternative sources provided the Remuneration Committee minutes for that year, from which I obtained the £28,000 figure for Johnson meeting his targets.}

 

 

_{What I’ve only just discovered [looking up another site’s publication of targets], is that he had a second bite at the same cherry! His targets for the following year also gained him bonus points for completing the task of redrafting the byelaws – how much extra he got for that is something those more able than I to extract the relevant minutes/accounts from the authority would have to check out.}

 

 

_{However much extra he got for having his minions complete the unfinished project for him, he will have done very nicely out of it.}

 

_{I just love the overall 2007/8 target to “provide excellent legal service and advice to BW”. Now that his legal advice for that year has been declared to be wrong, at an eventual minimum quarter million pound cost to BW/CART – what’s the bet he has not returned his bonus for that year to the CART coffers?}

 

 

 

_{The bonus scheme for executives, much criticised by the Monopolies & Mergers Commission Reports on BW, have been a source of some embarrassment to BW. I first got them from a website which was quickly forced by BW to shut down, and for a time they were only available on Wikileaks. Eventually BW gave up on the attempt to suppress them, and they are [relatively] freely available now.}

 

_{My initial interest in them arose because they provided at least one definitive answer to the question why BW first began their campaign against me, led by Mark Bensted [the then London Regional Manager]}

 

_{His targets for the year they illegally sectioned my boats [on Johnson’s “excellent legal advice”] included “Work with the Marketing and Communications Director to subdue criticism of BWL management by a small group of individuals.”}

 

 

_{Note the language: no hint of working towards resolving the criticisms, just a target of subduing the critical boaters! Impossible now to work out how much [if any] of his bonus for that year was apportioned to success on this point; one would hope none, because he failed entirely, not only with me but with all of the boaters thus targeted – but going by Johnson’s example, it would not surprise me to learn that Bensted got something for his unpleasant little efforts.}

Bensted was actually London director not a manager. He left quite suddenly after Defra told BW it must do something about executive director remuneration which at that time was costing the taxpayer about £3.6m a year.

 

Not only did he get a massive golden handshake for leaving but was also paid bonus after he left.

 

All CaRT directors may be paid bonus well as over 100 managers and senior staff.

[NigelMoore]

perhaps you would care to elaborate upon which NEW provisions criminalise behaviour that ought not to be criminalised.

 

Given that I have answered your question fairly, perhaps you would care to elaborate upon which NEW provisions criminalise behaviour that you believe is rightly so criminalised? We are missing out on your input here.

 

Come to that, I expected many others of those quite rightly objecting to the irresponsible amongst the dog-walkers, to welcome criminalisation of anyone caught exercising their dogs without a paid up permit to do so in their pocket!

 

And what about those cyclists and anglers?

 

On the contrary side, is anyone upset about needing permits to travel in convoy?

[NigelMoore]

Bensted was actually London director not a manager. He left quite suddenly after Defra told BW it must do something about executive director remuneration which at that time was costing the taxpayer about £3.6m a year.

 

Not only did he get a massive golden handshake for leaving but was also paid bonus after he left.

 

All CaRT directors may be paid bonus well as over 100 managers and senior staff.

 

You didn't mention the OBE!

[Allan(nb Albert)]

 

You didn't mention the OBE!

I forgot that! Mark Bensted received £342,285 during his last year in office with BW and left with a pension pot of £1,122,440. His OBE was for services to the 'marine industry' (I think they actually mean inland waterways).

 

He was of course the man that wasted £20m to £25m of public money building Three Mills Lock (aka Prescott Lock) better known as the White Elephant which was not fit for purpose and carried virtually no Olympic construction traffic.

 

He was also responsible for buying the five 'Dutch Barges' that CaRT was trying to sell off about six months back. However, that was only a £0.5m cock-up.

Edited September 16, 2013 by Allan(nb Albert)

[NigelMoore]

So that such people as are interested can better understand the debate over the two new mooring provisions in the 1990 Bill that have been reproduced in the draft byelaws [and to give mayalld the Parliamentary reasons why they felt the new provisions ought not to be criminalised], I have selected some excerpts [in italics] from the Select Committee Minutes over the criminality aspect [once again, the bold and underlining emphasis is mine] -

 

CHAIRMAN. There is a word of difference between me going to court with you to argue whether I have acted reasonably and then listening to the Magistrate saying, "Sorry Mr Mudie, you have acted unreasonably, now you must move that boat and if you do not, then you will be back here and you will be in contempt of the court " I can actually challenge you, if I think I am right and go to court and ask the court to listen to the thing. The trouble with this is, if I dare to challenge you and I am proved wrong, I am then a criminal with a record. Does that not strike you as being something we would want to avoid?

 

MR DRABBLE: Can I say this? First of all, Mr Dodd is present to ask this about, but if I can indicate the position. It is not the Board's intention to rely on those powers as a first step in anything at all. One would expect these to come into use in exactly the same way as the existing bye-laws powers of the railways and matters of this sort, where you will find very, very similar provisions Secondly, the waterways are operational waterways and for the reasons Mr Dodd was giving this morning, there will be circumstances where we do wish to have the power to give a clear direction where we can necessarily say: "It is binding in law, do not moor there for safety reasons" and in this sort of situation, dealing with safe moorings and matters of that sort, it is not appropriate to have a possible area of legal uncertainty as to who is the judge of the situation. We do claim the right to be able to say: "This is a safe place, that is not a safe place."

 

MR ETHERINGTON: This is the first time we have come across, throughout all of these clauses, where we enter into the realms of automatic criminality . . .

 

[As the Committee apparently realised, the QC’s argument was nonsense. If any situation arises where safety is indeed an issue, then BW/CART could remove the boat instantly, without notice; if safety was a genuine issue then they could even board the boat to effect that. The following excerpt reveals that.]

. . . . . . . .

CHAIRMAN: This stiffens up - you keep section 8 by the sounds of it?

 

MR DRABBLE: Section 8 stays, yes.

 

CHAIRMAN: You are keeping that power. There is no question, if a boat were in the waterway and in danger of causing an obstruction, you have powers to remove that and as you have said, without appeal?

 

MR DRABBLE: Yes.

 

CHAIRMAN: But at the same time you would take me to court and seek a fine of up to £1,000 under these new provisions?

 

MR DRABBLE: We seek to have a criminal offence, that is right. You make it sound as if we are going to go to court every time a boat is moored, which is an obstruction, which is plainly not the Board's intention.

 

CHAIRMAN: But you will accept that - my colleague said that to Mr Dodd I think - it is not you we are worried about, or the present enlightened Board, but it is their successor who we do not know. They may be all labour appointees!

 

MR CLIFTON-BROWN: Definitely draconian

 

CHAIRMAN: Different type of people.

 

[This was a significant exchange, with attempted light-heartedness veiling the obvious concerns involved in handing draconian powers to an organisation actively seeking them, with no readily recognised need for them on operational grounds. If those powers were seen as dangerous in the hands of those with such a mind-set at the instant time, fears as to who might wield them in future were most properly aroused, as future events have proven.]

. . . . . . . . . . .

CHAIRMAN: I took you through a procedure. Am I incorrect? If I just said, "I challenge you", either I challenge you before a Magistrate, who takes a decision and I either have to accept it or face his further wrath; when I challenge you, I actually open myself up if I lose the challenge, to becoming a criminal. Why? You do not need the money. I doubt if you get the money. Why this sort of power, where if you exercise the same power, but said to the court that it is for them to enforce, then I have the clear choice. I may argue with you. I may lose it and then I have got to decide whether I am going to be a criminal by flouting the court's decision.

 

. . . . . . . . . . . .

CHAIRMAN: Right. So you can move any boat?

 

MR DRABBLE: Yes. An abandoned boat we can move by notice under 8(1), an obstructing boat we can move without notice under 8(5).

 

CHAIRMAN: So operationally you are okay. It is just a decision whether you make them into a criminal or not?

 

. . . . . . . . . .

CHAIRMAN: When I look at it you have unfettered powers to make sure there are no great delays. In that instance, under, as you have pointed out to me, 8(5) you can just shift the boat. You know you can just shift the boat, so you have no operational problems. We are now talking about the other thing. You are putting the knife in now in a legal sense by saying, "If we are going to argue about this, if you lose the argument you become a criminal," rather than saying, "I am prepared to argue this out in a magistrates' court and the magistrate will tell you what to do" . . .

 

. . . . . . . . . . . . .

CHAIRMAN: We would not wish to pursue this. We would like you to think about it, both Part II, paragraph 12, and Part III, paragraph 22. We are unhappy about criminal offences being inserted into the Bill in this way. So it is up to you. You can convince us at a later date if you wish.

 

. . . . . . . . . . . . . . . .

CHAIRMAN: You ask for powers and nobody on the British Waterways side appears to have at their finger tips proof that it is such an urgent problem that this should go into effect.

 

[The parallels with the current new imposition of purely asserted powers to control moorings, while being able to show little evidence of need system-wide, is striking. Nearly a quarter century past now, and the worries expressed back then seem prescient. The power to enforce the present day moorings proposals could easily have been granted back then, if BW had only been prepared to withdraw the criminalisation element.

 

The regurgitation of identical powers in the draft byelaws, against the background of exponentially increasing litigation using the ‘last-ditch’ powers of s.8(2) instead of s.8(5) or s.5 of the ’83 Act, should make all boaters [‘compliant’ or nor not] and the socially responsible public, very concerned.

 

‘Mistakes’ happen [cue Catweasel’s post ‘Super Efficient C&RT’], genuinely or otherwise, and innocent boaters could be criminalised regardless of their compliance in such situations, if incapable of combating the hugely powerful litigation team at CART’s disposal; that team has demonstrated implacable determination to prosecute and financially/socially destroy some of their customers, for reason that not only have nought to do with efficient management of the waterways, but actually involve extraordinary financial costs better spent elsewhere.

 

Contradictory to the blithe confidence of those here who consider abiding by the rules grants immunity from penalty or prosecution, there are sub-surface agendas that anyone can fall foul of, and the criminal sanction in the hands of such people is horrifyingly inappropriate.]

. . . . . . . . . . . . .

MR CLIFTON-BROWN: Can you quantify this whole issue for us? In any one year how many of these sorts of instances are we talking about?

 

A. I do not have figures for the number of times in a year.

 

MR CLIFTON-BROWN: In your previous experience, your 12 years as a regional manager, how many incidents in one year would you have had where you needed these sorts of powers?

 

A. A handful of incidents.

 

CHAIRMAN: Then is it sensible to bring a criminal offence to deal with a handful of cases?

. . . . . . . . . .

CHAIRMAN: What would you suggest - you might get in trouble with this so take care when you answer - would be useful short of putting in a criminal offence, which I find distasteful?

 

A. I find that the provisions that we are putting forward ---

 

CHAIRMAN: No, that includes a criminal offence. I am saying to you, short of including a criminal offence, how would you tackle this?

 

A. As I see it, what is proposed in the Bill to do with the precedence that we have with the bye-laws that are ultimately enforceable in a magistrates court. In fact, I have detected no resistance from boat owners to the Board holding such bye-law powers which create an offence which could go to the magistrate's court see the powers that we are seeking here directly comparable to those and I therefore feel that they are acceptable.

. . . . . . . . . . . . . . . .

MR ETHERINGTON: Mr Dodd, in answer to the Chairman's question, he was more or less stating what alternative do you think would be effective if you did not have the criminal sanctions at the end of the road? What would be the position if you had a bye-law which stated that people who were committing a potential or a prima facie offence, which you now want to be regarded as criminal, would automatically have their licence revoked and would have to get the boats off the water? What would your feelings be about that? Too draconian?

 

A. I feel that the powers that we are seeking would be a sufficient deterrent.

 

CHAIRMAN: So would death! If you are looking for a sufficient deterrent, we do not argue with you. Make it £10,000. What we are saying is that you can slide in to having a criminal record because of this and we have put the situation back to you and said: "Come on then, have another think about it." Under your very thoughtful sensible description we are swayed that there is a problem. You could come along and say £1,000 criminal and we say: "Well, it seems a bit excessive to us." Mr Etherington has suggested we have got the powers to revoke the licence. Why do you insist on making them criminals?

 

A. The provisions, Chairman, seem to me to be appropriate.

 

. . . . . . . . . . . . . .

CHAIRMAN: We spent a lot of time this morning and you spent a hard time last Thursday, a lot of time this morning, then it all dropped out and I heard in the corridor at lunch time the reason. One of the things we are arguing about that is in the Bill now was put in by the House of Lords. It was not put in in your original Bill. Look at this Bill. Look at the changes. I have spent a good few days reading the Bill and I sat down to Chair this Committee and discovered a different Bill altogether and so you cannot say to me "accept it because if it is in the Bill, it is the best we could do" You have demonstrated your ability to improve your thinking as the weeks and years have gone on, have you not? Say we said, "No. Come on then, operationally what else would you put in its place?" We are open minded people. What we are simply putting on the table is twice in the Bill you are putting criminal offences into it which we think are a bit heavy handed. They are lovely. Mr Drabble's reaction to it was, "Well, the Gas and Electricity Board and the railways and all that do it." I am sure they did it. I am sure they enjoyed it. I am sure it went through here in about ten minutes, but faced with a thoughtful sensitive Committee, which do not willingly put new criminal offences on the Statute Book, will you think again? Mr Drabble, that is probably to you.

 

MR DRABBLE: We hear what you say. It was a question of mine to Mr Dodd and I think you have asked it already, whether it is possible to consider any other available sanction that can be used in this circumstance.

 

CHAIRMAN: I suggested the death penalty!

 

A. Wearing my marketing bit of my job, Chairman, I think it would be very difficult to invite more boaters on with that sanction. I am sure we can consider different things. Sitting here, I have no alternatives . . . If I may just advance one further operational experience, I can understand how, Chairman, you would be concerned about looking into the future, but I have worked with British Waterways since 1976 and I cannot think of a single occasion when lightly or frivolously would we have embarked upon the process of taking an ordinary boat through proceedings ending up in a court. . . . it is certainly not my belief that British Waterways would even begin to go through the cost and the difficulties of going through a legal process because, after all, the sole reason we require these powers is for the more efficient management of the waterway.

 

CHAIRMAN: I think now I accept that genuinely, but you put forward three times in this Bill to have these criminal charges. You withdrew one and there are only two remaining and you withdrew one voluntarily and we are having a discussion to see whether we can achieve a balance. I think it is right from our point of view that we raised it and so it is for Mr Drabble and your colleagues to think up whether there is anything else short of criminal sanctions that will work. I have to say, Mr Etherington's story about working men's clubs is no joke. I think that is exactly it, we do not go into courts or anything. Being thrown out of the club is enough to have most clubs run well. If somebody invests all his money in a boat and behaves badly on the river, then why the hell make a criminal of them? You just do not want them on the river and you should seek the powers.

 

So there you have it; the reasons why the powers CART now assert that they have anyway, were rejected by Parliament [because BW were not prepared to back down over the issue]. The two mooring control clauses were consequently withdrawn – only to resurface once again as criminal offences in the new draft byelaws.

 

There can be no stronger indication than this, that CART are no different [to date], from the criticised BW in their philosophical approach to boater control. The situation can be stated even stronger – the striking contrast, in fact, between the 1990’s “handful of cases” concerning which “it is certainly not my belief that British Waterways would even begin to go through the cost and the difficulties of going through a legal process”, with the scores of cases taken to court in a single year at vast expense, by CART seeking to criminalise and permanently evict boaters from the system [when most of those cases could have been for simple recoveries of monies owed], illustrates a rapid growth in their taste for extreme measures, regardless of cost, at the expense of more efficient management of the waterways.

 

Anyone with good ideas why Parliament was wrong to object to this as they did?

 

 

[Donald Gilchrist]

How many other 'charaties ' are alowed too make there own by laws up, also how has a charity got the right to inforce a law or even take a law from the orginisation it took over from as that was the government not a charity looking after a public space.

[NigelMoore]

Further to my comments above as to criticism of BW's bonus schemes [still, as Allan points out, a notable feature of CART’s employment contracts], they represent one of those noteworthy spurnings of Government recommendations.

 

In 1987 the Monopolies & Mergers Commission produced a Report on British Waterways, wherein they observed the abuses relating to the bonus schemes then running for maintenance staff – and strongly recommended that these be abolished.

 

In 1994 the MMC did another thorough investigation, and in their 1994 Report noted that although BW had just about completed systematic elimination of the bonus schemes for the wages staff - bonus schemes were introduced, for the top managerial level!

 

 

In the transition to private charitable status, the opportunity was there to not only reduce the salaries of top management, but to finally abolish the notorious bonus schemes in line with the Government recommendations. Sadly, as the entirety of the top management were involved in the transfer, that was never going to happen, so CART continues to bleed cash into these much abused extras for the management. The disgraceful pocketing of tens of thousands of pounds in unearned extra cash by Johnson, simply for having his staff work on the Byelaws, does but plainly exemplify that abuse.

Edited September 16, 2013 by NigelMoore

[Mick and Maggie]

Nigel.

 

I find your very arguments very compelling.

[Allan(nb Albert)]

Nigel.

 

I find your very arguments very compelling.

Same here.

 

What has been rather missing is anybody putting up a reasonable counter argument.

 

I will admit to some bias on this topic as some years ago Nigel Johnson threatened to sue me for suggesting he was a liar.

 

I will also admit to some further bias as BW threatened to take legal action against me if I made information provided under the Freedom of Information Act regarding bonuses available to the public.

 

Perhaps unsurprisingly, the information ended up on Wikileaks to be found by Nigel and others.

 

On a lighter note, my favourite bonus target was one set for Simon Salem to 'employ the services of a mystery shopper'. I still have difficulty in understanding why BW thought it was a shop and what the mystery shopper was actually buying.

 

The key long term targets are described in The Evans achievements. I suggest that anyone who thinks that CaRT should be able to promote bye-laws that criminalise boating activities reads about 'Four Square' on page 3.

 

 

[Mick and Maggie]

I will also admit to some further bias as BW threatened to take legal action against me if I made information provided under the Freedom of Information Act regarding bonuses available to the public.

 

The more I read and discover about British Waterways and their past activities. The more I read about how and why some of those dark practices were conducted. The more I begin to wonder if the new incarnation as a charitable organisation still embraces the 'old' ways. I suppose there is going to be a hangover of issues inherited from British Waterways by the charity. What I am not seeing is an organisation divesting itself of its old reputation and its apparent need for secrecy. I am not seeing an organisation that has changed its ethos from that of British Waterways. So I anticipate that there will be for the foreseeable future this continuing us and them mentality.

 

In a way, the 'deafening silence' on the issue from any BW apologists is for me a very significant indicator to the veracity of what's been aired previously. It seems that you can't defend the indefensible either from a moral or even principled perspective. Allan, you're not alone with displaying some bias. Whilst I try not to, I am as guilty as the next from having a pop at CaRT. I do this from the position of frustration of knowing what needs to be done and knowing that things are only getting worse. That airing an opinion and thereby stimulating debate is usually a productive task in the short term. And may go some way to guiding and stimulating opinion in the long term. What I had not anticipated with a simple question about the making of inland waterways bylaws was popping the lid off a long playing machiavellian drama.

 

​I think its all summed up in what seems to me to be a strange twisting of reality. Of being put under the duress of vexatious litigation for revealing information that is provided under the stringent terms and conditions of the freedom of information legislation. You get taken to court by an organisation with limitless funding for wanting to sharing information that was joe publics right to have sight of.

 

Is it me or has someone lost the plot altogether.

[Allan(nb Albert)]

 

The more I read and discover about British Waterways and their past activities. The more I read about how and why some of those dark practices were conducted. The more I begin to wonder if the new incarnation as a charitable organisation still embraces the 'old' ways. I suppose there is going to be a hangover of issues inherited from British Waterways by the charity. What I am not seeing is an organisation divesting itself of its old reputation and its apparent need for secrecy. I am not seeing an organisation that has changed its ethos from that of British Waterways. So I anticipate that there will be for the foreseeable future this continuing us and them mentality.

 

In a way, the 'deafening silence' on the issue from any BW apologists is for me a very significant indicator to the veracity of what's been aired previously. It seems that you can't defend the indefensible either from a moral or even principled perspective. Allan, you're not alone with displaying some bias. Whilst I try not to, I am as guilty as the next from having a pop at CaRT. I do this from the position of frustration of knowing what needs to be done and knowing that things are only getting worse. That airing an opinion and thereby stimulating debate is usually a productive task in the short term. And may go some way to guiding and stimulating opinion in the long term. What I had not anticipated with a simple question about the making of inland waterways bylaws was popping the lid off a long playing machiavellian drama.

 

​I think its all summed up in what seems to me to be a strange twisting of reality. Of being put under the duress of vexatious litigation for revealing information that is provided under the stringent terms and conditions of the freedom of information legislation. You get taken to court by an organisation with limitless funding for wanting to sharing information that was joe publics right to have sight of.

 

Is it me or has someone lost the plot altogether.

I have also noticed the 'deafening silence' from BW apologists.

 

 

 

[NigelMoore]

I will admit to some bias on this topic as some years ago Nigel Johnson threatened to sue me for suggesting he was a liar.

 

Tragically, threats of libel suits from BW/CART are only ever that – hollow threats. Why did he not follow through on the threat? I'd be curious to know whether they/their employees ever have followed through on a libel suit.

 

You must have something ‘good’ on him to suggest he is a liar [if that was what you explicitly said], most of what I have, demonstrates all the cunning of the worst legal minds – giving an utterly false impression while employing very carefully crafted words which, when broken down in the sentence piecemeal, cannot be objected to – only the effect is deceitful and misleading.

 

He is, of course, without question a knowing party to fraud of various types described in the Fraud Act – as are Hales, Evans, Bensted, Mills and Casey [and to a lesser extent, in a different matter, the property lady McLean]. The thing they don’t appear to realise is that the Fraud Act makes it a crime to withhold information one is obliged to proffer, when knowing that such withholding of information will result in loss to others. They don’t need to actually lie; they don’t need to utter a word in fact – it is the failure to say anything when knowing that a fraud is being perpetrated by their organisation that renders them culpable under the Act.

 

I believe, actually, that they do understand this, and realise that I, at least, can prove their guilt in respect of my allegations; it was back in 2009 or 10 that their QC first claimed they would have no option but to take libel action against me for my statements in this respect, demanding that I retract the accusations before the Master we were in attendance on. The Master was a little bemused, saying he couldn’t really force me to retract what I had said, and that it was all, in a sense, priviliged being written in pleadings read only by him and the parties involved.

 

He did ask, however, whether I wished to reconsider my position, but I simply said that truth was a perfect defence to the claim of libel, and that the QC’s client knew of the evidence proving my claims. The courts have evaded the topic ever since, despite my doing all I could to air the matter in public trial. There has been a great deal, over the years, of behind-doors activity bent on maintaining the organisation's illusory reputation.

 

I was [perhaps unfairly], quite excited when Panda was threatened in solicitor’s letters about KANDA’s claims of Johnson being discredited etc, but that all fizzled out with publication of the Hildyard cross-examinations and judgment. Very disappointing.

 

Point is, this is the man, his boss, and the legal team he heads up, that remain in their identical positions as before, advising the Board, the Trustees, and the management of CART today. For CART to be enabled to shrug off the abuses of the past and truly move forward under a different ethos, these people will have to go; it can't happen otherwise.