canal trust making people homeless

[NigelMoore]

That post reads as though from a split personality.

 

On the one hand a kindly offer of borrowed intellect, on the other a sadistic goading via boasting of a nearly extinct vintage.

 

I’d really rather you had offered to share the libation, and taken on the burden of the thinking thing all alone.

[MtB]

A spilt personality actually

[Tony Dunkley]

 

It would have been for more constructive to correct the ill-information and explain why the incorrect assumptions and preconceptions are incorrect.

 

 

MtB

 

 

You consider that has not been done? Getting some facts right before diving in and posting the ill informed tripe would have been rather more constructive too.

 

Enough said I think . . . shall we move on to something more constructive?

Edited September 15, 2014 by tony dunkley

[Hawkmoth]

 

I must confess, MtB [at risk of censure from purists], that in terms of blends I find the Waitrose own ‘brand’ very pleasant.

 

I tried that in the hopes of getting a decent cheap whisky, but must disagree with you. I didn't like it at all.

For me an acceptable, inexpensive blend is Grouse.

Bob

[Athy]

 

It would have been for more constructive to correct the ill-information and explain why the incorrect assumptions and preconceptions are incorrect.

 

This would have been far better than hurling insults.

 

 

MtB

 

 

fully complaint boaters

 

 

MtB

We've had a few of those on here all right.

[NigelMoore]

OK MtB, you can have it back now, with thanks; [it has been useful to have grounds for a disclaimer re: any imperfections in the result].

 

I have the impression that I am addressing those with far greater expertise in this particular arena than I possess, so consider this an attempt to clarify things for myself rather than an attempt to teach grandma to suck eggs.

 

The primary applicable right is ARTICLE 8 OF THE CONVENTION RIGHTS

 

Right to respect for private and family life

 

1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

I fully appreciate the comment: “CRT are not actually evicting people from their homes, they are evicting them from the waterways”. However it is idle to argue the point when the courts do in fact acknowledge that the right to respect for home is engaged in all s.8 proceedings. Furthermore, s.8 does involve more than removal of the home from the waterways, when it involves seizure of the home, with potential destruction or sale – as has been happening in recent cases.

 

This being so, the exceptional justifications fall to be considered:

 

a ) is it in accordance with the law? Yes, but this is in itself insufficient, because it must also be [“and is necessary in the interests of” -]
b ) national security? Hardly
c ) public safety? Hardly
d ) the economic well-being of the country? – Arguably
e ) the prevention of disorder or crime? Scarcely
f ) the protection of health and morals? Scarcely
g ) or for the protection of the rights and freedoms of others? Possibly.

 

So the arguable relevant objectives for implementation of the law involve the duty of the authority to manage the waterways in the interests of the county’s economy and for the benefit of all other users. Following the precepts of Lord Clyde as quoted earlier, use of s.8 proceedings need to be examined as to their rational connection to the legislative objective.

 

My position would be that s.8 proceedings are to the detriment of the economy rather than otherwise, and have no positive benefit protecting the rights and interests of others. The greatest impact on others is, as I have already said, of a purely admonitory nature.

 

Without doubt, a non-paying customer is damaging the economy. What is the remedy? To recover the money owed. Section 5 of the BWA 1983 provides:

 

“(2) If any person from whom any charge is due or by whom any charge is payable fails without reasonable excuse to pay the same, or to comply with any requirement of the specified enactments upon compliance with which a charge is payable, the Board may
(without prejudice to any criminal proceedings to which that person may be liable) recover from him a sum equal to—
( a ) the amount of the charge which is due or payable; or
( b ) where charges may be paid for periods of less than one year and the Board have not accepted part payment of the charge, a sum equal to the amount of the charge
which is due or payable for one year; in the manner in which the charge would be recoverable apart from this section.
(3) A court before which a person is convicted of an offence under any of the specified enactments arising from or involving any failure to pay a charge may, in addition to dealing with him in any other way, order him to pay to the Board any sum which the Board are empowered to recover under this section.”

 

So much for the generality – what are the relevant offences?

 

Under the 1971 Act [as amended], there is a penalty for permitting a boat to be on a river waterway without lawful authority, of £50 and a daily charge of £5 per day for all the time the offence continues from the time of summary conviction.

 

Under the 1976 Byelaws, the offence of permitting a boat to be kept on any canal without a pleasure boat licence carries a penalty on summary conviction of a sum “not exceeding £100”.

 

The relevant legislative objective, therefore, in respect of the specific offence which brings the boat within the ambit of s.8, is provided for by those statutory powers, which are designed to achieve precisely the recovery of sums owed, adding in the financial penalty, plus the criminal conviction. Not only does this appropriate legislation provide for the economic well-being - by providing a perfectly adequate admonitory function ensuring proper management of the system for the well-being of other users, it achieves both legitimate over-riding objectives.

 

Not only cannot the s.8 process achieve the first, nor provide the only tool for public warning, this means of allegedly accomplishing the objectives will not only be far “more than is necessary to accomplish the objective” because there are “less onerous ways of doing it”, the chosen means will be as a consequence both “arbitrary” and “excessive”.

 

The other applicable right is ARTICLE 1 OF THE FIRST PROTOCOL

 

Protection of property

 

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

 

It is accepted that the authority has the right under law “to secure the payment of taxes or other contributions or penalties.” But once again, s.8 proceedings are not designed to achieve this objective, they are designed solely to free up space on the waterways so that their use is not impeded by boats that ought not to be there. The “payment of taxes” etc can only be achieved through exercise of the s.5 power.

 

Arguably, I would agree, “the general interest” might be pleaded, but in raw fact use of the s.8 proceedings inevitably results in more prolonged interference with the rights of others. Where a boat is an obstruction to the use by others, it can be moved away on the spot under existing legislation, and if further sanction deemed necessary, the byelaws can be invoked. Viewed in that light, s.8 proceedings act against the interests of other waterways users – certainly in the short term.

 

ARTICLE 18 of the Convention Rights states that “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

 

My submission would be that s.8 proceedings leading to seizure and disposal of people’s homes, seeing as they are for reasons other than efficient management and recovery of sums legitimately owed, and considering that they provide no genuine benefit to the rights of others, are engaged in by the authority to the detriment of the Convention and Protocol Rights for purposes other than those allowed for under the Act.

 

ALL of the legitimate purposes can be achieved through application of the more appropriate legislation available to the authority. Most of those purposes cannot be achieved through application of the s.8 procedure.

 

Ergo, the process is “manifestly without reasonable justification”.

[NigelMoore]

A further note respecting the aim of recovering monies owed – s.8(3) provides ONLY for recovery of expenses incurred in exercising their rights in the process of removal; it confers NO powers of recovery of sums owed in respect of the licence.

 

If an existing paid-up licence was revoked for other reasons, then of course there would be no sums owed in respect of it. The over-riding objective of remedying economic defaults would not then enter the HRA picture.

 

That would leave only the objective of maintaining good management for the benefit and protection of others, and the immediate ill-effects, if any, of a boat being present without lawful authority, where the boat “be an obstruction or a source of danger”, is addressed by the powers of s.8(5) alluded to earlier, which cannot possibly engage the HRA either.

[Smelly]

. Obviously a hard and uncompromising man, on a better brew than I am.

Thanks.

 

That I may be however I am also a man with a grounding in the operation of the Human Rights Act, something you're clearly lacking.

 

In matters such as this the Strasbourg authorities allow governments a broad discretion in deciding the proportionality of an individual policy. Domestic courts have set the bar for establishing a convention breach at "manifestly without reasonable justification " Where the authority to remove a boat lies in primary legislation the justification for which we can assume was subjected to parliamentary scrutiny that bar is insurmountable.

 

I have said it before, although fair to say it was before your time here, that bandying round convention rights is a fool's errand.

 

Excuse the lack of authorities; I'm not in the office.

I can say that the first in the line of cases was Ghaidan v Godin - Mendoza although that's quite old now.

[Smelly]

Plus the best you could hope for is a declaration of incompatibility, even a senior court of record cannot impeach an action authorised under primary legislation.

[NigelMoore]

I am also a man with a grounding in the operation of the Human Rights Act, something you're clearly lacking.

 

In matters such as this the Strasbourg authorities allow governments a broad discretion in deciding the proportionality of an individual policy. Domestic courts have set the bar for establishing a convention breach at "manifestly without reasonable justification " Where the authority to remove a boat lies in primary legislation the justification for which we can assume was subjected to parliamentary scrutiny that bar is insurmountable.

 

I have said it before, although fair to say it was before your time here, that bandying round convention rights is a fool's errand.

 

I acknowledged as much.

 

Nonetheless, it is disappointing not to have had my specific points critiqued by someone with your grounding, instead of the blanket dismissal of any application of the HRA being possible. Insofar as “the Strasbourg authorities allow governments a broad discretion in deciding the proportionality of an individual policy”, the approach to exercise of that discretion by our own courts, as described by Lord Clyde in 1999, is obviously validated.

 

Consequently, the tests for proportionality he described must necessarily be employed, which tests are themselves in perfect accord with those described in the Craig & de Burca analysis of 2011. I see that as perfectly compatible with the requirement to show that application is "manifestly without reasonable justification "; they form a toolkit for that determination.

 

Given that alternative, less draconian powers are available that are capable of remedying the mischief, and achieving the underlying aims of the legislation to ensure that all boats possess the requisite “lawful authority” to be on the waterways, how can application of the s.8(2) sanction without having pursued those routes, pass the tests outlined by Lord Clyde? Or, indeed, be shown to have any reasonable justification?

 

The powers under s.8 are quite simply not those designed to enable the authority to achieve their legitimate objective [of ensuring all boats have “lawful authority” to be on the waterways]. So whenever that power is employed in default of the existing powers that are designed to achieve that legitimate objective, such use has to be “manifestly without reasonable justification”.

 

All primary legislation must be assumed [though not always with much justification] to have been subjected to parliamentary scrutiny as to the objectives; to say that as a consequence of that, establishing any impact of the HRA upon such legislation “is insurmountable”, is surely contrary to s.3 of the HRA which demands that all legislation must be read and given effect to in a way which is compatible with the Convention rights 'so far as it is possible to do so'.

 

Employment of s.8(2) powers does not and cannot address the legitimate objective of ensuring that all boats possess the “relevant consent”; it exists only as a last resort penalty upon failure of the authority to achieve that objective through the alternative powers available.

 

I am not, however, going to argue over whether “bandying round convention rights is a fool's errand” or not – my strong suspicion is that you are right.

[Smelly]

To be honest...

 

One of the reasons I stopped posting here was my purchase of a tablet. Typing out long missives is onerous these days hence my brevity.

 

As to S3 HRA, secondary legislation can be interpreted quite broadly including reading in or out certain words or provisions to make them compliant. Primary legislation cannot be amended. If it were regulatory I wouldn't be being so negative. This is why there is a mechanism for a declaration of incompatibility but in such a legislative backwater I doubt such a declaration, even if it were to get high enough up the courts, would inspire the legislature to grant the parliamentary time to secure amendment.

 

Grand declarations are all well and good however you need a remedy too. Not sure I can see one.

 

I've had to do a submission on this recently; I'll see whether I can edit & share it when I'm back in the office. I believe it presents a good contemporary picture of where we stand as regards S3 and S6 HRA breaches. Moreso S6 iirc. I'm not sure whether you've mentioned it but S6 is more likely to bear fruit from your perspective...

The more I think about it a S6 defence might be open to an individual in a private law action such as impounding.

[NigelMoore]

Thanks, that would be appreciated. I haven’t looked at S6.

 

I am still not sure that a declaration of incompatibility is even necessary with regard to s.8 of the ’83 Act, purely because it can only properly bite - on my understanding - in circumstances where the “less onerous” legislation has been applied and found wanting. The essential issue being the question of choices made as to which bit of legislation to apply in the circumstances.

 

I am grateful for the feedback.

[NigelMoore]

. . . have tried to get up to speed by reading the result of the appeal, that hasn't really helped.

 

What appeal is it that you read?

[Smelly]

I'm struggling to see How BWA 83 offers a real alternative to removal of the hypothetical unlicensed boat. Even if an intransigent individual has refused to claim Housing Benefit and continually refuses to pay their licence a fine does not offer remedy to the existence of the boat.

 

I think you're reading S8 as a set of exclusive provisions but it's cumulative... No licence, for what ever reason, then crt can impound the boat, make the owner cover their expenses and, eventually, sell it or destroy it.

 

S8.2 doesn't ensure that all boats have licences, it simply removes those that don't.

 

Edit... In an entirely unrelated decision MT v SSWP 2013 UKUT 0545 (AAC) Judge Gray talked about "looking down the wrong end of the telescope" and it's rattling round my head so I thought I'd mention it. Almost Denning-esque and a quote I'll love for ever more.

Edited September 15, 2014 by Smelly

[NigelMoore]

The BWA 83 IS the one granting rights to remove unlicensed boats under s.8(2). You are right, it doesn’t ensure boats have licences but is the final penalty for failure to achieve that objective.

 

It is s.5 of that Act, however, that gives the power to pursue the monies owed for the licence [if that is the reason the boat is unlicensed]. The court would order the payment as well as imposing the fine – but if the individual is recalcitrant even then, there are still two options open. The authority can obtain an Enforcement Order on the CCJ and farm the debt out to bailiffs to recover.

 

If even that proves ineffective, the court can [as it usually does in the s.8 cases], provide that those in breach of the Order be imprisoned. I see no bar to the authority bringing a fresh case every time the non-payer comes out [because the offence is still being committed] with the same end result. At some point the non-payer is going to be fed up with spending time in prison, and will cough up – if able to of course.

 

If that proves ineffective even so, then s.8 removal would be in order – my central point is that it would be in order ONLY when those alternatives have been tried first. The authority has a fiscal duty to collect the monies owed to it, and it has obligations under its civilian remit to act accordingly. Only when due diligence in that respect is exhausted should the final sanction of removal be sought, which is effectively a decision to cut their losses.

 

If one reads through the Orders published on CaRT’s website re: actions to remove boats, it can be seen that in several of those cases just such orders to pay – in installments in some instances – were issued by the judge in lieu of the sanction of removal. That can only re-inforce the existence of alternatives.

 

 

Note: any deficiencies in this line of argument should be laid at the door of that borrowed brain cell.

[Smelly]

My battery has run out so googling the 83 act again is a pain... Where is the authority to do anything more thanissue a fine? What does crt do with the unlicensed boat?

Edited September 15, 2014 by Smelly

[NigelMoore]

.
The authority to claim the licence fee as well as to have the court impose the relevant fine under the byelaw is given in s.5 Recovery of Charges

 

“(2) If any person from whom any charge is due or by whom any charge is payable fails without reasonable excuse to pay the same . . . the Board may . . . recover from him a sum equal to - ( a ) the amount of the charge which is due or payable;

 

(3) A court before which a person is convicted of an offence under any of the specified enactments arising from or involving any failure to pay a charge may, in addition to dealing with him in any other way, order him to pay to the Board any sum which the Board are empowered to recover under this section.”

So far as dealing with the unlicensed boat in the meantime, the authority is entitled to move it to a safe place where it does not interfere with anyone else’s use of the waterway, under s.8(5) -

 

“Notwithstanding the provisions of this section the Board may at any time move without notice a relevant craft if it be an obstruction or a source of danger.”

 

The ’95 Act extended the application of the ’83 Act under s.18 Obstruction by vessels –

 

(1) No person shall moor or otherwise leave a vessel on an inland waterway so as to cause obstruction or hindrance to navigation or to the free passage of persons or vehicles over and along the towing path beside the inland waterway.

 

(3) Any vessel moored or allowed to remoor in contravention of subsection (1) above shall be deemed to be a relevant craft for the purpose of section 8 (Removal of vessels) of the Act of 1983 or, in Scotland, a vessel for the purposes of section 19 (As to vessels sunk, stranded or abandoned) of the [1958 c. xliv.] British Transport Commission Act 1958.

 

It also increased the penalty for boats left so as to be a danger –

 

(2) Any person who without reasonable excuse contravenes subsection (1) above in such a way as to cause, or give rise to the risk of, injury to any person or damage to property shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

 

These provisions provide that an unlicensed boat can be dealt with appropriately for the purpose of ensuring the benefit of all other users of the waterways [whether boaters or not].

[CaptainJacks]

Ill just throw this in, you are entitled to claim your licence fee as part of your housing benefit claim, so no excuse for not paying it. I'm not saying its an easy road to go down but it is a legitimate one.

Burying your head in the sand regarding licencing is not an option and does not make the problem go away anymore than ignoring rent/mortgage arrears. Plenty of help to be had, it just takes a bit of effort.

Phil

Do you know if its possible to claim for mooring fees as I have a customer who has fallen on hard times who needs to cover their costs while looking for work?

I have never dealt with such a situation I would like to be able to help by being informed.

[Smelly]

.

The authority to claim the licence fee as well as to have the court impose the relevant fine under the byelaw is given in s.5 Recovery of Charges

 

“(2) If any person from whom any charge is due or by whom any charge is payable fails without reasonable excuse to pay the same . . . the Board may . . . recover from him a sum equal to - ( a ) the amount of the charge which is due or payable;

 

(3) A court before which a person is convicted of an offence under any of the specified enactments arising from or involving any failure to pay a charge may, in addition to dealing with him in any other way, order him to pay to the Board any sum which the Board are empowered to recover under this section.”

 

So far as dealing with the unlicensed boat in the meantime, the authority is entitled to move it to a safe place where it does not interfere with anyone else’s use of the waterway, under s.8(5) -

 

“Notwithstanding the provisions of this section the Board may at any time move without notice a relevant craft if it be an obstruction or a source of danger.”

 

The ’95 Act extended the application of the ’83 Act under s.18 Obstruction by vessels –

 

(1) No person shall moor or otherwise leave a vessel on an inland waterway so as to cause obstruction or hindrance to navigation or to the free passage of persons or vehicles over and along the towing path beside the inland waterway.

 

(3) Any vessel moored or allowed to remoor in contravention of subsection (1) above shall be deemed to be a relevant craft for the purpose of section 8 (Removal of vessels) of the Act of 1983 or, in Scotland, a vessel for the purposes of section 19 (As to vessels sunk, stranded or abandoned) of the [1958 c. xliv.] British Transport Commission Act 1958.

 

It also increased the penalty for boats left so as to be a danger –

 

(2) Any person who without reasonable excuse contravenes subsection (1) above in such a way as to cause, or give rise to the risk of, injury to any person or damage to property shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

 

These provisions provide that an unlicensed boat can be dealt with appropriately for the purpose of ensuring the benefit of all other users of the waterways [whether boaters or not].

 

Is there any provision for imprisonment other than non payment of the fine? I'm curious about resorting to criminal recourse before civil recourse is exhausted but I know that it goes on... Even if criminal proceedings were engaged the boat still ends up in CRT's possession so a provision fettering when they might give it back seems logical.

 

Do you know if its possible to claim for mooring fees as I have a customer who has fallen on hard times who needs to cover their costs while looking for work?

I have never dealt with such a situation I would like to be able to help by being informed.

 

Get a claim in for Housing Benefit; mooring fees are included in the definition of "rent" in the HB regs.

Edited September 15, 2014 by Smelly

[NigelMoore]

 

Is there any provision for imprisonment other than non payment of the fine? I'm curious about resorting to criminal recourse before civil recourse is exhausted but I know that it goes on...

 

The court action for recovery of the debt necessarily involves conviction over the relevant byelaw offence – which is criminal.

 

Many of the Court Orders issued for BW/CaRT begin with the warning that non-compliance with the terms of the Order renders the boater guilty of contempt of court – for which “you may be sent to prison”.

 

I know of one boater who spent 3 weeks in Wormwood Scrubs for such contempt of court.

 

[NigelMoore]

Recent publication of the options CaRT recognises with respect to unlicensed boats throws up some light on the thought process [or not] involved. It is notable when seen laid out in this charted fashion, that the end game necessity with all s.8 procedures is a suit for debt [under the s.5 powers of the 1983 Act].

 

 

This highlights, to my mind, the absurdity of not taking that action at the beginning, when the debt sought to be recovered would have been so much less. And yet, that option does not appear ever to have occurred to the authority.

 

The flow chart moves directly from lack of response to a caution letter or Patrol Notice, to a s.8 Notice, instead of suing for the debt as legislation specifically provides – why?

 

Having served the s.8, the flow chart moves directly from the point at which a boater “fails to comply with option” [purchase a licence or disclaim the boat], to: “survey and remove” said boat. Even at that point they could sue the boater for the debt of the owed licence fee before taking action to remove the boat, and yet they do not.

 

Instead of initiating suit for debt at the very beginning of this cause for action, it is left to the very end of the process, at which stage they are only recovering the monies expended on removal and storage fees, instead of the monies that could positively build up the coffers.

 

It is no answer to say, as others have, that the option is no use if the boater does not have the money anyway – that applies equally to the end game, except that in that case greater sums have been expended. And as I have said, and as specifically recognised in the last box of the chart, the possibility is always there to “ask Court Bailiff to levy on boat”.

 

If a debt is otherwise irrecoverable, it serves no valid purpose to increase it. I believe that this chart only emphasises that the legitimate purpose of the authority respecting the licensing of boats is to recover the relevant sums owed. If a lawsuit for sums owed STILL remains to be done at the end of the s.8 procedure, then following the s.8 procedure INSTEAD OF suing to recover the smaller sum to begin with, is contrary to their fiduciary duty and manifestly without reasonable justification.

[MtB]

Having served the s.8, the flow chart moves directly from the point at which a boater “fails to comply with option” [purchase a licence or disclaim the boat], to: “survey and remove” said boat. Even at that point they could sue the boater for the debt of the owed licence fee before taking action to remove the boat, and yet they do not.

 

Is it related to the need for a BSS and insuance, and a declaration?

 

Imagine if CRT sued for the licence money and the boater just paid up. What now? Do they issue a license, or not, given the boater has now paid for one?

 

And if they issue it, do they then revoke the license for no BSS or insurance?

 

It seems unlikely there are many cases where an unlicensed boat has a valid BSS and insurance. Or maybe there are!

 

MtB

[NigelMoore]

 

The court action for recovery of the debt necessarily involves conviction over the relevant byelaw offence – which is criminal.

 

I am wondering whether I am right about this. It occurs to me that a straightforward action for recovery of debt might not necessitate the breach of byelaw suit? If not, then that would be a separate option.

[Paul C]

They DO try to get the boater to pay, well before section 8 or debt recovery actions.

[NigelMoore]

 

Is it related to the need for a BSS and insuance, and a declaration?

 

Imagine if CRT sued for the licence money and the boater just paid up. What now? Do they issue a license, or not, given the boater has now paid for one?

 

And if they issue it, do they then revoke the license for no BSS or insurance?

 

 

The flow chart makes no mention of anything other than a refusal to licence [alternatively to ‘disclaiming’ the boat].

 

CaRT would be under no obligation to issue a licence without BSSC or insurance. The insurance required is only 3rd party, so payment of that relatively nominal sum could be required as part of a court order I presume. The BSSC is not a necessary disbarment from the waterway because the option is provided for the authority to give adequate leeway for works needed to be carried out. They could issue the licence noting such a period of grace, and revoke the licence if that is not then complied with.

They DO try to get the boater to pay, well before section 8 or debt recovery actions.

 

Usually, yes.

 

The point is that having failed, they bypass the debt recovery action altogether and go straight to s.8.