Personal Response to:

A New Era for the Waterways A Consultation on the Government's proposals for moving inland waterways into a new charity in England and Wales With special focus on: Human Rights Impacts upon Boat-dwellers

Francis A. Kelly resident of vessel 'Maid Marian' BW registration no. 74310 28th June 2011

Summary In his foreword to the consultation document (hereafter 'the document) (Richard Benyon states that our inland waterways are treasured for many different reasons unimagined by their original architects. He goes on to list a number of 'vital roles' played by the waterways and yet, surprisingly, misses the vital and rather obvious function of alternative housing. The Executive Summary makes clear that the scope of the document (pg7) takes no account whatsoever of the needs of water-based home owners. Although the stated aim of government is to provide greater involvement for the communities that live alongside the waterways the document contains a major and possibly fatal flaw in failing to recognised the role of the waterways themselves as a place of residence for several thousand people. At present, people who make their homes upon boats in the waterways have, at least theoretically, recourse to Human Rights legislation. The proposed move to charitable status will seriously compromise the civil liberties and human rights of those people dependent upon the waterways as a home and questions therefore arise as to the legal status of the transfer. It is concerning that the document is notably uncritical of the management role of British Waterways (BW), stating British Waterways actively engages with stakeholders nationally and locally..1. In fact many within the non-mooring boating community perceive BW as paying little heed to the representations of its customers and dependants and being confrontational, discriminatory, antagonistic and enforcement-based2. In the event that the waterways are transferred to charitable status, there is a pressing requirement to safeguard the human rights and civil liberties of people dependent upon their boats as their home. This is particularly important in the case of those with no mooring. Further, it is imperative that the current British Waterways management culture be prevented from transferring, un-criticised and un-redacted, to the new body.

1 A New Era for the Waterways consultation document pg1, 1.4 2 London Boaters' Group 2011 - Response to BW Mooring Proposals for the Rivers Lee and Stort pg 39 para 2.

Boats as Homes A Serious Demographic Oversight 1. The waterways have, for many years, provided an alternative and affordable mode of housing for many. This social function is especially important in the present climate of economic recession, joblessness, and high house prices (particularly in Greater London). The waterways have long provided a respite from socio-economic pressures which increasingly force people on low incomes into low quality housing and private renting. For many people, life on the waterways represents an enabling alternative, allowing a genuinely affordable housing choice providing a healthy balance between the need to earn and the need to pursue a personally meaningful life. 2. The Executive Summary (para 1) states that, in the past, Government supervised the transformation of the waterways into present-day bustling recreational waterways. The document, from this point onward, completely fails to acknowledge the thousands of people dependant upon the waterways as a home3 and the large numbers of residential boaters with no moorings. 3. It is clear therefore from the outset that the consultation document fails to be aware of the lengthy history of, and present-day role of, the waterways as a place where many people make their homes. This perhaps arises as a direct result of the Government's uncritical attitude to British Waterways. It is reasonable to suppose that DEFRA sought guidance from BW in the construction of the proposal and BW are certainly aware of the situation, particularly in regard to live-aboard vessels with no moorings4. 4. BW have long been in denial of the fact that they are a de-facto landlord, and make strenuous efforts to avoid accepting responsibility for the demographic realities of the situation, preferring to state that they are not a housing association5. This perception is contradicted by the evidence of the Association of Inland Waterways (AINA), which noted the housing role of the waterways6 and by the Department for Communities and Local Government (DCLGIt is a reality that BW, and Government, are faced with a humanitarian imperative to protect the homes and rights of this long-standing community. 5. Given British Waterways awareness of the live-aboard situation and the AINA report, of which one might reasonably also expect them to be aware, it is difficult to understand the absence from this consultation of any mention or acknowledgement of the live-aboard community. One can only wonder whether such an omission is the product of either incompetence or intent. Discrimination and Stigmatisation of Boat-dwellers with no Mooring 6. Currently boats with no mooring are licensed as 'continuous cruisers' (hereafter CC) and are required by law to change their location every fourteen days to a different 'neighbourhood'. Historically the law has not sought to define 'neighbourhood' and this has been the subject of debate and disagreement between BW and the live-aboard community.

3 4 5 6

Harris M. New Law Journal 23 Feb 2001 We know how many continuous cruisers there are because we count them Sally Ash, Head of Boating, BW. We are a navigation, not a housing body.. - Sally Ash, Head of Boating, BW. Guardian 9th March 2011 Association of Inland Navigation Authorities Report, 2010 Residential Use of Inland Waterways

7. Amongst continuous cruisers there is a perception of a culture of discrimination, prejudice and stigmatisation. Despite being legitimate license-holders and paying customers, boatdwellers with no moorings are viewed by BW as a problematic group requiring special measures:
These are people who have made lifestyle decisions on the basis of a set of assumptions which don't actually tally with what the law prescribes ..what the meetings brought home to me is, it is a very different demographic and there is nothing like looking back at 150 people in a room to say actually these don't look like the sort of people we normally deal with through the normal user groups. The issue with continuous cruisers...people who continuously cruise, they're commonly referred to by other stakeholders as continuous moorers... Sally Ash, Head of Boating, British Waterways - Meeting with London Boaters' Group representatives 12th March 2011

8. It is of particular concern that the recent consultation document on mooring policy for the Rivers Lee and Stort7 targeted this group in particular and could, therefore, be considered discriminatory in its entirety. 9. While it is true that many CC license-holders are content to move a reasonable distance in compliance with the law, this has to be balanced against the natural and reasonable need to engage with wider society in terms of employment, health-care, benefits, voting, selfexpression (e.g. Arts involvement) and social responsibility (e.g. volunteer activities). Many of these activities of citizenship and humanity require a local connection and the ability to engage consistently with a land-based local community. 10. There consequently arises, therefore, a potential conflict between the requirements of the law, BW's interpretation of the law and the civil and humanitarian needs and Human Rights of boat-dwellers. Most CC license-holders attempt a compromise by moving a distance which complies with the law, but still allows reasonable ease of access to their chosen community (e.g. by bus, bicycle, walking etc). 11. BW cite opposition from other stakeholder groups in defence of this (Lee and Stort) policy but, challenged, have failed to provide evidence. On the contrary, London Boaters' Group, in an extensive research project which involved direct canvassing and documentation of local stakeholder views, found no support for BW's claims but, rather, flat denial of any such support for the BW position: We also understand that both Springfield Cruising Club and CHUG have written to British Waterways disassociating themselves from these views which they see as seeking to create division between different sections of the boating community. In its Response to British Waterways Mooring Proposal for the Rivers Lee and Stort, London Boaters Group have observed: Not only have we not been engaged in decisions which impact directly and
7 A New Era for the Waterways Consultation Document, DEFRA 2011.

immediately upon us, we have been addressed by British Waterways staff in meetings as 'you people' and 'continuous moorers' and wrongly painted as law breakers and freeloaders by British Waterways in the press. Serious human rights concerns regarding healthcare, loss of voting rights, education and family life have been dismissed as 'lifestyle choices'.
We believe that our treatment is a result of deep-seated antipathy towards liveaboard boaters without home moorings within British Waterways. This institutional hostility predates the 1995 Act and results in a dismissive and discriminatory approach to a legitimate group of boaters who are living within the letter and the spirit of the law and who are a valuable, but undervalued, stakeholder group.

12. Currently BW are considering changes to their rules for Continuous Cruiser movement, potentially forcing CC boats to move greater distances, more frequently, and imposing a system of fees (arguably, fines) for overstaying. Many feel that the distances and fees involved will place unreasonable strains on the community, presenting a greater challenge to human rights, civil liberties, security of tenure, and social security against a background where such are already under considerable stress. Human Rights and Civil Liberties Concerns 13. There is, demonstrably, a failure of the consultation document to take account of the housing role of the waterways and the needs and views of its live-aboard population. In addition there is a perceived culture of discrimination and harassment on the part of British Waterways towards continuous cruisers. 14. Additionally, boat-dwellers, particularly those with no mooring, do not have access to the same legal rights to protection of their homes as are enjoyed by house-dwellers. Currently, given the fact that BW is a public body, there is recourse to the Waterways Ombudsman and, at least in theory, the protection of Human Rights (HR) legislation8. 15. Taken together, these issues give rise to serious concerns regarding the effect of the proposed changes upon the human rights and civil liberties of the boat-dwelling population of the waterways. 16. These legitimate concerns are heightened by the additional fact that British Waterways is seeking powers to make subordinate legislation. This concern has also been raised by the Delegated Powers and Regulatory Reform Committee of the House of Lords9: '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
8 Specifically, Article 8 of the E.C.H.R as incorporated in schedule 1 of the Human Rights Act 1998 9 Sixth Report of the Delegated Powers etc Committee

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'. 17. Similar concerns have been raised by the Joint Committee on Human Rights10: We share the concerns already expressed by many members in the House of Lords and in the Reports of the Constitution and Delegated Powers and Regulatory Reform Committees of the House of Lords. The breadth of delegation proposed in this Bill11 appears wholly inappropriate. We reiterate our view that parliamentary oversight of matters which engage individual rights and liberties is particularly important, and delegated powers which may impact upon individual rights or liberties and affect the ability of the UK to meet its international obligations must be justified by the Government and accompanied by adequate safeguards to ensure that infringements do not arise because secondary legislation has been subject to inadequate parliamentary oversight. 18. Given the above concerns, the transfer of BW from public body to charitable status, together with powers of subordinate legislation, could well result in a contraction of the human rights and civil liberties of the waterways population and may undermine the right to procedural fairness guaranteed by common law. 19. Such a diminution of rights may have sequelae in terms of the international obligations of the United Kingdom in regard to human rights12. See Articles 1, 5, 6, 8, 13, 14. 20. Arguably then, the transfer of BW to charitable status and the conferring of powers of subordinate legislation may, of itself, represent a breach of the European Convention on Human Rights. 21. One might reasonably argue that E.C.H.R. Article 14 is activated/contravened by reason of association, given that the boat-dwelling population might reasonably be considered a national minority13,. Questions of Competency and the Need for Effective Supervision and Transparency 22. A question of competency arises from the omission of live-aboard boat-dwellers from the 'New Era' document. If this omission is a result of error then one might legitimately question the knowledge base (and competency, by extension) of the drafting agency.
10 Joint Committee on Human Rights 7th Report 2010-11 Legislative Scrutiny: Public Bodies Bill; other Bills pg19 para 1.54 11 i.e. The Public Bodies Bill 12 It is clear that the European Court has taken a wide interpretation of the notion of State and will not allow organisations to escape the Convention by claiming to be a private organisation or the State to side-step its duties by delegating them. Harris M. New Law Journal 23 Feb 2001. 13 Harris M. New Law Journal 23 Feb 2001

Alternatively, if the omission was by design then a question arises of the moral competency of the drafting agency and/or its advisors. In either case such questions of competency raises concerns for the safeguarding of rights of those affected by the document. Indeed it is difficult to conceive of another reason for such an omission. One might argue that this omission seriously undermines the credibility and legal status of the 'New Era' consultation document. 23. The concerns regarding discrimination raised by London Boaters' Group, taken together with the narrow, community-specific focus of the Lee and Stort mooring strategy consultation and its deficiencies in both research and evidence, raise questions of competency in regard to maintenance of fairness and equality on the part of BW. 24. The extent therefore to which the current management of BW will be translated to the new charity, as well as the granting of any powers of subordinate legislation, carries concerns regarding protection from discrimination and the right to a fair hearing among others. 25. Given such concerns, parliamentary supervision is essential and it would seem entirely inappropriate that powers of subordinate legislation be granted. Additionally, it would seem clear that the current BW management philosophy requires radical correction and redaction, particularly where individuals are likely to transfer to the new body. Conclusion 26. In conclusion, the 'New Era' consultation is fatally flawed in that it fails to acknowledge the existence of a sizeable live-aboard community on the waterways of England. Serious concerns exist regarding the human rights and civil liberties of the live-aboard community which need to be addressed in terms of parliamentary supervision, routes of redress and public transparency of any new body. In particular it is wholly inappropriate for the new waterways charity to have powers of subordinate legislation and the legal status of the transfer requires judicial review. Francis A. Kelly 28th June 2011