Continual cruising

[Wanderer Vagabond]

 

What's difficult about it for C&RT? If they are so minded, all they will have to do is demonstrate by means of 'recorded' sighting and photographic evidence, genuine or manufactured, that the boat has been at one 'place' for more than 14 days, or has returned to the same 'place' without first visiting a sufficient number of other 'places'. A simple and easy enough thing to 'prove' to the extent a County Court will be likely to accept from such as a Navigation Authority, whether or not the boat really has overstayed or returned without making the minimum required 'movement'(s) according to the "Guidance", and also whether C&RT really do check every mile of waterway as frequently as they claim to, but quite obviously don't.

Having been recently caught out manufacturing evidence for use in Court, they may be more careful, and possibly successful with their next attempt.

What would be difficult about your suggestion is that to gain the requisite evidence would require pretty regular observations on the same boat, possibly repeatedly photographing it, have you heard of the Harassment Act?

[Smelly]

.3) A number of CCers are boating in a way that may well fall foul of Davies, but on the basis of actual movement it can be accepted that their intent isn't actually important4) .

This comment highlights not only the repeated misdirection that has echoed down this debate over the years but the profound and distasteful bias that taints the ground.

 

Firstly the test is bona fide FOR navigation. "Bona Fide" does not qualify "navigation". End of! Intelligent people who hang on that for arguably rhetorical reasons walk in the shadow of Goebells.

 

To rephrase the quote, "there are people moving far enough to be 'navigating'" so How could that possibly be not bona fide? The fact that Paul Davies had a job was One factor in a considerable matrix and had he been travelling more than 9 miles every couple of months it would have been immaterial.

 

The simple fact is, a cohort will take against anyone who remains in one -let's call it "broad location" to distinguish it from "place"- because they have been, or perceive themselves to have been inconvenienced; either financially, while navigating or indeed because they have a problem with hippies. It engenders ever greater prejudice which I do not hesitate to condemn.

 

There are a good number of people in category 3; me among them and Boston too if the advice from The Board's representative is anything to go by, who enjoy the life, keep a decent distance moved, yet still inspire the ire of the knuckle draggers and sanctimonious finger wavers who are happy to tar the majority with the sins of the minority.

 

Dave, you and I both know someone who gave evidence in the Lords during committee stage of the BW Bill, I suggest that you nip down to Portland basin and have a word with Chris about what that "navigation" was perceived to ensue. I promise you will be disappointed... Remember that the bill started out trying to outlaw people living on boats but was massively watered down. In all the years debating I have seen not One gram of evidence that that watering did not stretch to S17, there is a condition there to discourage stopping in One place in perpetuity and not paying for the privilege and that is the full extent of the law. Bellicose opinion will do nothing to change that, nor will it relieve said cohort of the weight on their shoulder.

[Smelly]

and for those who would brand me just another uppity 'ippie my latest day in court is reported here and my range is 51 lock miles over about 3 months.

Edited October 8, 2014 by Smelly

[NigelMoore]

 

I believe that Nigel Moore has raised that on more than one occasion - something to do with "Big Company" Vs little guy - the interpretation should always favour the 'little guy'

 

Maybe if Nigel is reding this he will re-post it ?

 

The legal principle is identical – not ‘big-guy vs little guy’ quite, but - extent of powers granted to statutory bodies over the general public, vs that general public. The powers must be construed very strictly [in case of ambiguity] against those claiming power over the public who havedrafted laws for that purpose..

Approved in historical cases such as Stourbridge v Wheeley, and in modern times by Attorney General v Wilts United Dairies, etc and as late as my own case.

 

[Midnight Rider]

and for those who would brand me just another uppity 'ippie my latest day in court is reported here and my range is 51 lock miles over about 3 months.

Lock miles! That's about top of Farmer's Bridge to bottom of Aston flight & return. Not very far.

[Tony Dunkley]

What would be difficult about your suggestion is that to gain the requisite evidence would require pretty regular observations on the same boat, possibly repeatedly photographing it, have you heard of the Harassment Act?

No I haven't and it doesn't interest me in this context either, because it would be C&RT's problem, not mine or any boat owner's.

Edited October 9, 2014 by tony dunkley

[mayalld]

This comment highlights not only the repeated misdirection that has echoed down this debate over the years but the profound and distasteful bias that taints the ground.

 

Firstly the test is bona fide FOR navigation. "Bona Fide" does not qualify "navigation". End of! Intelligent people who hang on that for arguably rhetorical reasons walk in the shadow of Goebells.

 

To rephrase the quote, "there are people moving far enough to be 'navigating'" so How could that possibly be not bona fide? The fact that Paul Davies had a job was One factor in a considerable matrix and had he been travelling more than 9 miles every couple of months it would have been immaterial.

 

The simple fact is, a cohort will take against anyone who remains in one -let's call it "broad location" to distinguish it from "place"- because they have been, or perceive themselves to have been inconvenienced; either financially, while navigating or indeed because they have a problem with hippies. It engenders ever greater prejudice which I do not hesitate to condemn.

 

There are a good number of people in category 3; me among them and Boston too if the advice from The Board's representative is anything to go by, who enjoy the life, keep a decent distance moved, yet still inspire the ire of the knuckle draggers and sanctimonious finger wavers who are happy to tar the majority with the sins of the minority.

 

Dave, you and I both know someone who gave evidence in the Lords during committee stage of the BW Bill, I suggest that you nip down to Portland basin and have a word with Chris about what that "navigation" was perceived to ensue. I promise you will be disappointed... Remember that the bill started out trying to outlaw people living on boats but was massively watered down. In all the years debating I have seen not One gram of evidence that that watering did not stretch to S17, there is a condition there to discourage stopping in One place in perpetuity and not paying for the privilege and that is the full extent of the law. Bellicose opinion will do nothing to change that, nor will it relieve said cohort of the weight on their shoulder.

 

I don't accept the rephrasing of what I said!

 

If we accept the construct put upon "Bona Fide for Navigation" in the Davies case, distance travelled is not the measure of "Bona Fide for Navigation", intent is.

 

The rider is that it is entirely possible that a boater will not travel far, but will be using the boat "Bona Fide for Navigation". Equally, it is possible that a boater will travel many miles but not be doing so.

 

However, there will be a degree of correlation between the distance moved and the extent to which it can be accepted that the boater is using the boat as required by the Act.

 

That isn't to imply that there is an absolute correlation, or that there is any direct link between distance travelled and intent. Neither does it imply that the correlation is linear.

 

However, it is the case that If we examine the intent of 10 boater who have travelled 10 miles in the last month and compare it to those who have done 100 miles. we will find more of the latter group with the necessary intent to be viewed as compliant.

 

As such, we can say that probably 90%+ of boaters who do 100 miles a month are actually compliant. In the interests of efficiency, CRT may well decide that because it is unlikely that such boaters are not compliant, they will accept them as compliant without further query.

 

So far as evidence before the committee, as I said before, if we consider the application of Pepper vs Hart, that evidence cannot affect the statutory interpretation.

[NigelMoore]

 

So far as evidence before the committee, as I said before, if we consider the application of Pepper vs Hart, that evidence cannot affect the statutory interpretation.

 

The curious thing about Pepper v Hart is that although most quoted in support of the judge-made rule against using Parliamentary material, it is the landmark case allowing for exceptions to that rule.

 

Lord Browne-Wilkinson was the most thorough analyser of the issue, saying:

 

http://www.bailii.org/uk/cases/UKHL/1992/3.html

 

“The courts should not deny themselves the light which Parliamentary materials may shed on the meaning of the words Parliament has used and thereby risk subjecting the individual to a law which Parliament never intended to enact.”

 

If, therefore, the idea is to understand the intent of Parliament in instances where that intent is ambiguously worded in an enactment, then recourse to the Parliamentary principles is justified, even if in no other circumstances.

 

Of course, given that the BW legislation here is a private Act, examining the rationales given to Parliament by the promoters could be considered a process giving greater latitude to those promoters than the far older and more established principle of construing such Acts actively against the promoters. Pity is that that principle is often accorded only lip-service.

[mayalld]

 

The curious thing about Pepper v Hart is that although most quoted in support of the judge-made rule against using Parliamentary material, it is the landmark case allowing for exceptions to that rule.

 

Whilst the term "the exception that proves the rule" is oft misused, Pepper vs Hart is such in its truest sense.

 

Prior to that judgement, judges regarded Article 9 of the Bill of Rights (That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament as meaning that what was said in parliament was beyond their reach, and that only the final Act could be considered.

 

Pepper vs Hart set a precedent that allowed some limited use of Parliamentary material;

 

In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.

 

It is notable that such recourse is only in cases of ambiguity or obscurity or where the literal reading was absurd. It also strictly limits the material to statements made by the promoter or a minister.

 

Thus, this precedent admits some parliamentary material, but by admitting that material, sets a precedent AGAINST widening its ambit.

 

Even the limited access provided by the case has been whittled down, as succeeding judges have tried to find every possible angle to limit its applicability.

 

In the final analysis, we must consider that the material relied upon is the minutes of the committee. It may tell us much about what was in the minds of the members of the committee that revised the bill that was to be presented to Parliament as a whole for its approval, but we must also recognised that it is NOT those minutes that came before parliament to be approved, but the text of the Bill.

 

It would be a difficult thing to convince a court that in passing the BW Act 1995, Parliament voted for what had been said in committee over what the committee presented to them for approval.

[NigelMoore]

Even the limited access provided by the case has been whittled down, as succeeding judges have tried to find every possible angle to limit its applicability.

 

True enough! The application of the exemption was wider than that opined by the judge you quoted however, who was but one of several who all had their say on the matter, and referred to various types of material.

 

One potentially sensitive aspect would be the argument of Lord Steyn in his 2001 article on the case, that there was a danger that "It permits an ambiguous statute to be interpreted against the citizen as well as against the state." Which is similar to what I last said, in preferring to rely on the Stourbridge v Wheeley principle in court argument.

 

However, in my view we are discussing amongst us amateurs what BW meant to accomplish with the legislation, rather than arguing before a court what Parliament intended, so the quotes from BW’s mouthpiece are invaluable in that respect.

[mayalld]

 

True enough! The application of the exemption was wider than that opined by the judge you quoted however, who was but one of several who all had their say on the matter, and referred to various types of material.

 

One potentially sensitive aspect would be the argument of Lord Steyn in his 2001 article on the case, that there was a danger that "It permits an ambiguous statute to be interpreted against the citizen as well as against the state." Which is similar to what I last said, in preferring to rely on the Stourbridge v Wheeley principle in court argument.

 

However, in my view we are discussing amongst us amateurs what BW meant to accomplish with the legislation, rather than arguing before a court what Parliament intended, so the quotes from BW’s mouthpiece are invaluable in that respect.

 

That is a very moot point surely!

 

Regardless of what BW wanted to achieve, what they actually achieved is the text of the Act.

 

If there are areas where poor drafting has left them with less than they intended to achieve, then they cannot rely on an argument that "we meant it to achieve this".

 

In the same way, if poor drafting gives them powers that they didn't actually seek, then they could easily claim "well parliament gave us more than we asked for. Of course if they hadn't, we would have returned for those powers anyway"

[Tuscan]

One of the key reasons there is no appetite within CRT to try for a new Act is the belief that tney will be unlikely to get the powers they seek by the time the Act is granted.

[NigelMoore]

They no longer have the power to promote a new Act anyway.

 

Edit to add: the most they can do is promote secondary legislation such as byelaws. Your comment would apply to those, especially as the draft byelaws contain word for word clauses that they were refused first time around.

Edited October 9, 2014 by NigelMoore

[alan_fincher]

Yes john I'm aware of cotswoldmans post, I'm also aware we don't know if it's accurate.

It's my fault though I was wondering if there are any accurate up to date figures. As you'd expect for such a major threat to the continued existence of the system(sarcasm)

Also when I said overstayers I should clarify I mean boats coming to the attention of the enforcement team (sorry for the confusion) I'm not up to date with the latest name for them cmer, fake continuos cruiser, piss taker etc.

Regards kris

 

It seems we are now at the stage where some people at least have totally convinced themselves that the current CRT spotting/recording/reporting processes are so far off the mark that there can never currently be the possibility of accurate figures.

 

On the other hand one hears of a growing number of times that people have requested their own data, and upon checking it, found it to be accurate, (that is clearly not to dispute that some others believe the data held for them is not correct, of course).

 

We do seem to be between a rock and a hard place, particularly as sometimes it is the same people saying "all CRT need to do first is to enforce what they can already enforce, using existing powers" as it is saying "the data they hold is not fit for purpose". If anyone believes both those statements, it seems to me to amount to admission that CRT don't actually have the data to enforce anything, until they record better data.

 

My gut feel is that where many (but not all) of the disputes arise, it is not because the recorded data is wrong, more because wrong conclusions are being drawn from it. (Simple example- if someone is sighted somewhere twice, 15 days apart, but nowhere in the meantime, all you can conclude is that they were there on those two dates - you can make no assumption where they were on the 13 intervening days).

[Wanderer Vagabond]

No I haven't and it doesn't interest me in this context either, because it would be C&RT's problem, not mine or any boat owner's.

You may not have heard of it in this context but I think you will find that KANDA have and encourage their website followers to use it. My view is that it would become a waste of Police time but then as you say that isn't KANDA's problem either. Since you clearly don't want any form of enforcement then I suppose that it isn't really your problem either. probably the best thing to happen would be for CART to categorically state that they are withdrawing from any form of enforcement since they don't have the powers to do so and let everybody just get on with it. Of course if you can't get on Visitor Moorings, Water Points, Lock Moorings and anywhere else that people decide to moor then so be it, that would be the price of 'freedom' I suppose.

[NigelMoore]

 

powers must be construed very strictly [in case of ambiguity] against those claiming power over the public who have drafted laws for that purpose..

 

Just reading through my argument in the Hildyard trial [squirming slightly at some of my gaucherie], I came across these details –

 

The relevant proposition is enunciated by Francis Bannion in “Statute Construction”, under the topic of “Legality”. He says – “Where the decision-maker is a public corporation it lacks the comprehensive power possessed by natural persons to regulate the use of its property in any lawful way it sees fit: see e.g. R v Somerset County Council, ex p Fewings [1995] 3 All ER 20, following Calder and Hebble Navigation Co v Pilling (1845) 14 M & W 76 at 88."

 

A bit more case law on the subject collected for the appeal –

 

The Bournemouth-Swanage Motor Road & Ferry Co. v Harvey & Sons [1929] 1 Ch. 686

 

“The courts construe private Acts on a presumption that people should not be prejudiced in matters they can lawfully perform without compensation, unless that intention is clearly expressed.” . . .

 

“I approach the matter from the position that clear and unequivocal words are necessary to derogate from common right, to deprive people of the power to do what they were doing for profit at the passing of the Act, without any one being able to stop them.” . . .

 

“In approaching the consideration of the Act it is necessary in my view to set out the canons of construction of such a statute. In Scales v Pickering [1828] 4 Bing. 448, 452. Best C.J. says: “If the words of the statute on which they rely be ambiguous, every presumption is to be made against the company and in favour of private property. In Parker v Great Western Ry Co. [1844] 7 Scott. N.R. 835, 870. Tindal C.J. says: “The language of these Acts of Parliament is to be treated as the language of the promoters of them . . . Acts passed under such circumstances should be construed strictly against the parties obtaining them, but liberally in favour of the public.” “If there be any reasonable doubt,” said Lord Cottenham L.C. in Webb v Manchester & Leeds Ry. Co. [1839] 4 My, & Cr. 116, 120. As to the extent of their powers . . . they must go elsewhere and get enlarged powers; but they will get none from me, by way of construction of their Act of Parliament.”

 

The judge later quoted from “the case of Scottish Drainage Co. v Campbell [1889] 14 App. Cas. 139, 142 Lord Herschell said: “when an Act of this description is obtained by a company incorporated for purposes of profit, to confer upon them rights and powers which they would not have at common law, the provisions of such a statute must be somewhat jealously scrutinized, and I think that they ought not to be held to possess any right unless it be given in plain terms or arises as a necessary inference from the language used.”

[b0atman]

I requested my spottings for this year and 2 of them are in the marina .

Surely this is a waste of resources and why are they on private land ?

[jenlyn]

It seems we are now at the stage where some people at least have totally convinced themselves that the current CRT spotting/recording/reporting processes are so far off the mark that there can never currently be the possibility of accurate figures.

 

On the other hand one hears of a growing number of times that people have requested their own data, and upon checking it, found it to be accurate, (that is clearly not to dispute that some others believe the data held for them is not correct, of course).

.

On your first point, I asked Denise Yelland at the last associations meeting if they logged moving boats. Yes she replied. I then asked if the boats were logged as "moving", no she replied. Are you with me thus far Alan?

 

To me, that means the system is not being fed the data it needs to make it reliable when being used in the manner it is at the moment.

Now I don't need to convince myself of this, because the head of enforcement has told me it is so.

Do you get it now???

 

On your second point, can you supply links to the growing number who have found no fault with their recorded data please.

This would be helpful, as I have been collecting the data records from our membership at acc. The findings on the logs I have so far, give considerable concern.

[MtB]

On your first point, I asked Denise Yelland at the last associations meeting if they logged moving boats. Yes she replied. I then asked if the boats were logged as "moving", no she replied. Are you with me thus far Alan?

 

Why would it matter if the boat was moving or not?

 

If it is logged somewhere, moored or traveling is irrelevant. The sighting records evidence of a pattern of movement.

 

 

MtB

[jenlyn]

Why would it matter if the boat was moving or not?

 

If it is logged somewhere, moored or traveling is irrelevant. The sighting records evidence of a pattern of movement.

 

 

MtB

It's really not hard to work this one out mike. Just think on it a little.

[NigelMoore]

 

That is a very moot point surely!

 

But that is the whole point of this debating on the Forum – arguing the toss amongst ourselves what Continuous Cruising is and is not, necessarily including debate on what the legislation itself says, plus lots of input from differing viewpoints on what Parliament/BW meant. We don’t have to constrict ourselves to court protocols, nor pretend necessarily that what we say will hold up in a court of law. So far as that goes, using Parliamentary materials could have the potential to backfire, purely and simply because the legislative wording is so simplified, but it helps to inform us.

 

Then too, Parliament itself noted in its own 2005 publication on Pepper v Hart, that the case established “if primary legislation is ambiguous or obscure the courts may in certain circumstances take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation.”

 

It is the QC’s of this world who have to turn somersaults attempting to wring more meaning out of the contested few words, at their paymasters’ behest, and to do so within court protocols and precedent; we have greater liberty.

 

Smelly in post #602 referred to the debates during the Committee stages of the Bill, and I have posted a photocopy of a relevant portion illustrating what the ‘mischief’ was, that the relevant clause was ostensibly intended to cure. It helps to settle argument as to what BW intended when you can quote them saying what they intended.

 

Your pertinent point about the value of Select Committee minutes notwithstanding, one of the very specific examples of viable use of Parliamentary material was comparison between what was in the Bill and what did NOT make it through scrutiny and approval in the end result.

 

Pepper v Hart said: “It is now permissible to look at the report to find the mischief and at the draft Bill to see that a provision in the draft was not included in the legislation enacted: see Factortame [1990] 2 A.C. 85.”

 

Given that part of the CC pattern which CaRT seek to impose involves, as one example, stipulating whether return to previously visited sites is permissible within certain time frames, the comparison between Bill and Act in that regard is also very telling.

[MtB]

It's really not hard to work this one out mike. Just think on it a little.

 

I.m too stupid. Humour me. Explain for me, PLEASE.

 

I ask because I don;t think you can.

 

Prove me wrong....

 

I'm anticipating a smart-arse response though, not a proper answer.

 

 

MtB

[ditchcrawler]

I requested my spottings for this year and 2 of them are in the marina .

Surely this is a waste of resources and why are they on private land ?

Because they check that boats in marinas are licensed and they come in with the owners permission. They log you when they check you. So not a waste at all really.

[jenlyn]

I.m too stupid. Humour me. Explain for me, PLEASE.

 

I ask because I don;t think you can.

 

Prove me wrong....

 

I'm anticipating a smart-arse response though, not a proper answer.

 

 

MtB

I'll give you both, having by your own admission said your a bit stupid.

 

I'm heading north from Leighton Buzzard. I am logged as I go through fenny Stratford, but I did not stop. I continue cruising through Milton keynes and stop in various places, but I do not get logged. 2 weeks later, I have turned, and am heading back to Leighton Buzzard for the festival. I stop in fenny overnight and get logged. I am now on CRT's data system as being in fenny for two weeks, as I have not been logged elsewhere. The system has now failed, it has not stated my first sighting was one of movement.

 

I'll make it even simpler for you, what if you were driving your van through reading, and the traffic warden slaps a ticket on you even though you ain't parked?

Edited October 9, 2014 by jenlyn

[Paul C]

I'll give you both, having by your own admission said your a bit stupid.

 

I'm heading north from Leighton Buzzard. I am logged as I go through fenny Stratford, but I did not stop. I continue cruising through Milton keynes and stop in various places, but I do not get logged. 2 weeks later, I have turned, and am heading back to Leighton Buzzard for the festival. I stop in fenny overnight and get logged. I am now on CRT's data system as being in fenny for two weeks, as I have not been logged elsewhere. The system has now failed, it has not stated my first sighting was one of movement.

 

What if you used binoculars and spotted an enforcement officer/data logger in the distance; and quickly untied, to tootle down the canal 100 yds or so, giving a friendly wave as you pass him. Then reverse 100 yds and moor up again?

 

Or, you were in a queue for a lock and there's already a boat on the lock landing, its a windy day so you are obliged to stop by the towpath and tie up for a few minutes?

Edited October 9, 2014 by Paul C