CaRT Section 8 Judgment statement misleading

WE HAVE published various articles on the results on the Section 8 Court Case of British Waterways Board v Nigel Moore, including a statement from Canal & River Trust, so now we include the statement by Nigel Moore:

The Statement by CaRT as to the effect of the Appeal Court Judgment in Moore v British Waterways is dismayingly disingenuous. It effects to address the conclusion of the Appeal Court while doing nothing of the sort.

Does not address licensing question

The Appeal Court decision does not, despite what the Statement attempts to convey, address the licensing question on any of its navigations, so of course it cannot affect it. The question of whether some few stretches of waterway were exempt from that requirement was determined 12 months ago in the Hildyard High Court Judgment.

Readers should be reminded that with respect to that judgment, as reported on this site, British Waterways welcomed the decision of Mr Justice Hildyard 'which resulted in British Waterways winning on all the claims before the Court' (sic).

Having, of course, 'won' [but see 'Setting the Record Straight—April 7th 2012', the claim that they could not exact licences on public navigable rivers not included in the scheduled rivers of the 1971 Act [as amended in 1974 & 1995], BW/CART was taken as accepting that position when defending the Appeal Court challenge.

The latest Appeal Court Judgment, to which this latest Press Release refers, consequently never dealt with that year-long accepted position on boat licensing at all—it deals with the question of what constitutes 'without lawful authority'—as in the Section 8 phrase: 'left or moored therein without lawful authority'.

Not solely tidal waters

The effect is that the judgment does not relate 'solely to the tidal stretch of the Grand Union Canal' despite the denigrating claims of the Press Release. As Lord Justice Mummery notes [para. 35]: "Section 8 does not confer on British Waterways Board a general statutory power to require the removal of vessels moored in the Grand Union Canal without its permission."

He pertinently referred [para.39] to "Lord Bingham's re-formulation in The Rule of Law (2010), emphasising the accessibility of law and the need for it to be, so far as possible, intelligible, clear and predictable, so that the citizen knows when his actions would be unlawful. Those 'rule of law' considerations apply to the power of British Waterways Board . . ."

Invalidates Section 8

The Appeal Court judgment invalidates all attempts to Section 8 boats that have not violated any common or statutory law—wherever they are. In terms of the current legislation, the effect is that, as had been argued from the beginning of the long-running legal battle, Section 8 can only relate to unlicensed boats in waterways where boat licences [or certificates] are a statutory requirement in order for the boat to be there at all.

The more generally applicable and fundamental lesson is that CaRT cannot substitute their wishes for law; a thing is not unlawful simply because CaRT won't give you permission to do something not forbidden in their statutory regime. That principle applies to all its waterways.

Abusing powers

As noted, moreover, from ensuing comment in certain legal websites, the judgment is not even confined to issues affecting the waterways; it affects all legislation governing all statutory bodies, wherein the pertinent phrase appears—and is a long overdue affirmation of the rights of the citizenry with respect to those abusing the extent of their powers.

It is a salutary warning to all boaters that this latest statement from CaRT is indisputable evidence that it has not managed to abandon the ingrained habit of dishonesty and dissimulation in communicating with the boating public.